Wrongful death

Question 1

Wrongful Death

Answer 1

1. the cause of action (death) that arise from the
2. negligent,
3. tortious conduct,
   4, of the D.

Question 2

Wrongful Death: General Overview

Answer 2

WHAT FOR?
A death is “wrongful” and thus suit seeking beneficiaries’ recovery generally allowed where D’s intentional-, negligence-, or strict liability-based tort caused decedent’s death.

WHO SUES?:
* Many states permit only personal representative / executor of decedent’s estate (named by will or appointed by court if decedent dies intestate) to sue on beneficiaries’ behalf.
* Others empower beneficiaries to bring action themselves.
* In either case, damages must be allocated between the beneficiaries according to the statute.

WHO RECOVERS? Most states define beneficiaries as follows:
* “Spouse:” Person decedent was married to at time of death (e.g., whether formal / common-law marriage, domestic partnerships, or civil unions), NOT unmarried cohabitants (e.g., fiancé, live-in lover).
* “Child:” Decedent’s surviving blood-related child(ren). Jurisdictions differ re: if stepchild(ren) qualify, as well if blood-related child can recover when no surviving spouse.
* “Parent:” Most jurisdictions allow decedent’s parent recovery ONLY IF decedent died w/out surviving spouse or children.

Question 3

Florida Wrongful Death Act - FLA. STAT. §§ 768.16 ET SEQ.

Answer 3

WHO SUES?:
* Only executor (a.k.a., personal representative) of decedent’s estate, either named by will or appointed by court if decedent dies intestate, may bring the action.
* If executor wins, they must distribute $$$ money to each beneficiary (including estate) as allocated by jury.
* All potential beneficiaries of a recovery must be IDed in the complaint by names / relationships to the decedent.

WHO RECOVERS?:
* “Survivors” defined to include decedent’s spouse or children (by blood or adoption), and parents of decedent minor child as in most other states;
* Parents of decedent 25-old+ child CANNOT recover pain and suffering UNLESS older-than-25 child had no survivors;
* Decedent’s blood relatives OR adoptive sibling(s) dependent on decedent’s “support” (monetary or in-kind contributions) and/or “services” (household / caretaking tasks).

WHAT RECOVERY?:
* Beneficiaries may generally recover value of, inter alia, past / future support + services, consortium (spousal or parental), mental pain and suffering, and expenses (e.g. medical, funeral).

Question 4

survival doctrine

Answer 4

A “survival” action is one seeking to recover for P’s personal injuries despite subsequent death of P decedent or D—e.g., P’s claim “survives” his/her death, and/or D’s liability “survives” D’s death so P can recover from D’s estate even if D no longer living; But traditionally only pecuniary losses—not non-economic losses—were recoverable in a survival action brought on behalf of a decedent P;