When a person is killed by the carelessness (“negligence”) or deliberate wrongful action of another, that person is said in legalese to have died a “wrongful death.” The person who was killed is referred as the “decedent.” The right to bring a lawsuit for the wrongful death of a person is governed completely by statutory law (laws enacted by the legislature, as opposed to laws made by the courts, known as “common law”). Before laws were enacted by the legislatures giving certain persons the right to sue for the wrongful death of a decedent, once the person died the common law did not allow wrongful death actions. It was much cheaper in the old days for the wrongdoer to kill the person than to injure him or her, leaving the family of the deceased without a remedy.
Wrongful death lawsuits are considered to be a new, separate, independent, and wholly distinct action belonging to the decedent’s heirs based upon their monetary (“pecuniary”) loss they suffer as a result of their decedent’s death. It is not derived from or a continuation of any right to sue that the decedent would have had had he survived. For instance, if a person is seriously injured in an automobile accident and brings a lawsuit, but dies three years into the case from injuries resulting from the accident, the heirs have a right to bring a wrongful death action beginning on the date of death.
Only the people designated by statute are entitled to file a lawsuit for wrongful death. The deceased person’s surviving spouse, registered domestic partner, children, and the “issue” of deceased children (such as the grandchildren of a child that has died) all have the right to file a wrongful death action. If they do not fall within the foregoing class of persons, certain persons who were financially dependent upon the decedent are entitled to file a wrongful death lawsuit. These include the “putative spouse,” children of the putative spouse, stepchildren, and parents of the decedent. A “putative spouse” is a person who believes in good faith that his or her marriage to the decedent was valid, but because of some legal technicality, the marriage was invalid (“void” or “voidable”), such as the divorce from a previous spouse was never legally final.
A minor who does not meet the criteria set forth above for having the right to file a lawsuit for wrongful death is not necessarily out of luck. A minor has the right to bring an action against the wrongdoer (the person who did the negligent act, the “defendant” in a lawsuit) for wrongful death if, the time of the decedent’s death, the minor lived for the preceding 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.
A plaintiff in a wrongful death action is entitled to recover damages for his or her own monetary (“pecuniary”) loss. The so-called “economic damages” to which a person may be entitled to include the loss of the decedent’s financial support and the loss of gifts or benefits that the person would have reasonably been expected to receive from the decedent had he or she not been killed, the reasonable value of household services that the decedent would have provided, and funeral and burial expenses. The “non-economic damages” that the survivor may recover include the monetary value of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support, and training and guidance. The heirs, however, are not entitled to recover damages for the decedent’s pain, suffering, or disfigurement. Nor are the survivors entitled to recover monetary damages for such things as their own grief, sorrow, or mental anguish felt upon the death of a loved one, for their sad emotions, or for the sentimental value of the loss.
As a general matter, damages for wrongful death are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society, and protection. Factors relevant in assessing the amount of loss of society, comfort, and protection include the closeness of the family unit, the warmth of feeling between the family members and the character of the deceased as “kind and attentive” or “kind and loving.”
When a spouse or domestic partner has been wrongfully killed, the surviving spouse or domestic partner is entitled to recover damages for “loss of consortium,” which compensate the surviving spouse or domestic partner for the loss of his or her marital life resulting from the spouse’s or domestic partner’s death. California law permits a widow, widower, or surviving domestic partner to recover for what amounts to a loss of consortium as an element of damages in a wrongful death action arising from the death of the person’s spouse. The concept of consortium includes not only the loss of support or services, but also embraces such elements as love, companionship, comfort, affection, society, sexual relations, “the moral support each spouse gives the other through the triumph and despair of life,” and the deprivation of a spouse’s physical assistance in operating and maintaining the family home.
The amount of damages for loss of consortium must be based on the totality of the circumstances of each case. Evidence that tends to show that a marriage is on the brink of divorce is material and bears directly on the issue of whether financial support is properly found to be a benefit reasonably to be expected in the future had the decedent lived. However, a decedent’s mere expression of a desire to divorce a spouse, when the decedent had taken no affirmative steps to obtain a divorce or legal separation, is a speculative basis for finding that a marriage would have been short-lived had the decedent lived. As one judge commented, “No doubt there are some relationships where the spouses form an intention to divorce on a daily basis, and the intention evaporates just as quickly. Mere intentions can be wonderfully evanescent.” Because it is easy to claim that a marriage was in trouble and that one party was planning on leaving the other and getting a divorce, it has been suggested that evidence of “legally cognizable, concrete steps”—such as either actual legal separation or filing for separation or divorce—be required to show that the marriage was ending soon and damages should be reduced accordingly. California’s family law does not take into account unacted-upon intentions to separate or divorce; even the act of seeing a lawyer about a possible divorce does nothing to alter the rights already in place.
If a defendant in a wrongful death case has a valid defense that he or she could have asserted against the decedent had the decedent lived and brought a negligence lawsuit against him or her, the defendant may raise that defense in a wrongful death action against him or her. The decedent’s heirs stand in the shoes of the decedent and are subject to any defenses that the defendant could have asserted against the decedent if he or she had lived. For instance, if the decedent had knowingly assumed the risk of being hurt or killed in an accident, this may operate as a complete defense to a wrongful death action. There are several type of assumption of risk, some of which merely reduce the amount of the heirs’ recovery, and another type that completely bars the heirs’ recovery.
If the decedent was partially at fault, the defendant can raise the decedent’s “comparative negligence” to reduce the amount of his or her financial liability. If, for example, the decedent had been 50 percent at fault for the accident, then the amount of monetary damages the survivors would be entitled to recover would be cut in half. That the defendant was acting in self-defense when he or she killed the decedent may constitute a complete defense to the action, assuming the defendant’s use of force was warranted and the amount of force used was reasonable under the circumstances.
Suppose a person wants to participate in a dangerous activity, such as parachuting or hang-gliding. Before the defendant lets him or her do the activity, the defendant has the person sign a release that states that the person relieves the defendant of all liability in case the person is injured or killed. When a person signs a valid release that would have barred a lawsuit against the wrongdoer had the person lived, the person’s survivors are similarly barred from bringing a wrongful death action if the risk that took the person’s life was encompassed by a legally viable release.
To be effective, a release must be a clear and unequivocal waiver of harm or death with specific reference to the defendant’s negligence. A contract of release from negligence must be in clear, explicit, and comprehensible language, free of ambiguity or obscurity. It must clearly inform the releaser, as an ordinary person untrained in the law, that he or she is releasing the other party from liability for the releasor’s personal injuries caused by the releasee’s negligence. The words releasing the defendant from liability must not be disguised in complicated legalese, but must be written in simple, clear, and unambiguous language understandable to the ordinary lay person. The release must be drafted so as to clearly notify the releaser of the effect of signing the agreement. The release must not be contrary to “public policy,” which generally prohibits the defendant from releasing himself or herself for conduct that constitutes aggravated, or “gross,” negligence or intentional wrongful conduct.
Although several persons—such as a surviving spouse or registered domestic partner, children, or parents who were financially dependent upon the decedent—may have the right to bring a wrongful death action against the person who killed their loved one, only one lawsuit may be filed. Either all of the heirs must be named in the complaint as “plaintiffs,” or the lawsuit is filed by one person appointed as the personal representative of the decedent acting on behalf of all of the legal heirs. Special rules allow for including in the lawsuit an heir who does not want to participate in the wrongful death lawsuit.
Suppose that several people are the plaintiffs in a wrongful death case, and that after a trial, the jury returns a verdict in their favor. Suppose further that the verdict specifies a single sum to be paid by the defendant to the plaintiffs and does not spell out how much each heir is to receive individually. How is the money divided among the plaintiffs? Is each plaintiff given an equal share regardless of his or her unique circumstances? When there is more than one plaintiff in a wrongful death action and the jury awards a single sum, it is up to the trial judge to determine how much each plaintiff will get.
A “survivor action” refers to any right the decedent had to recover money or other personal property had he or she lived. It is not a new cause of action that the heirs receive upon the death of the decedent. Rather, it is a separate and distinct action that belonged to the decedent before his or her death but “survives” that event. The survival statutes do not create a new cause of action, but merely prevent the extinction of the cause of action of the injured person and provide for its enforcement by or against the personal representative of the decedent.
A cause of action that survives a person’s death passes to that person’s successor in interest and is enforceable by the decedent’s personal representative or, if there is none, by the decedent’s successor in interest. In the typical survivor action, the damages recoverable by a personal representative or successor in interest on a decedent’s cause of action are limited by statute to the loss or damage that the decedent incurred or sustained before death, including any penalties or punitive (“exemplary”) damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, and disfigurement.
One major exception to the rule that damages for the decedent’s pre-death pain and suffering are not recoverable in a survivor action is that such damages are expressly recoverable in a survivor action under the Elder Abuse Act if certain conditions are met. Under the Elder Abuse Act, where neglect or abuse of an elder or dependent adult is reckless or done with “oppression, fraud, or malice,” damages for the victim’s pre-death pain, suffering, or disfigurement are recoverable in a survivor action brought by the victim’s personal representative or successor in interest. It should be stressed that the right to sue for pain, suffering, and disfigurement under the Elder Abuse Act is that it must be brought by the decedent’s personal representative or successor in interest, and that it cannot be brought by someone else as a part of his or her wrongful death action.