Wrongful Death Flashcards
Under the common law how did death affect a party’s claims
A cause of action did not survive the death of the plaintiff.
The plaintiff’s cause of action did not survive the death of the defendant
There was no separate cause of action for those dependant on the deceased.
What types of torts do not apply to survival statutes?
dignitary torts, you can’t slander a dead guy
survival statutes
Allows a cause of action to survive the death of either party. Brought by or against their estate to recover damages that could have been recovered had they lived.
A claim that they initiated or could have brought had they lived.
Losses recoverable by the survivors of a wrongful death action often include…
Economic and non-economic (The prospective loss of earnings and contribution; prospective expenses; loss of services; loss of companionship, comfort, & consortium; and mental anguish and grief)
This is based on statute
What are damages under wrongful death statutes based on?
The loss suffered by the beneficiaries, not buy the estate.
Does a representative always recover for wrongful death?
No, while there may be some overlap, a representative bringing a claim does not always have an absolute right to the damages recovered. They may bring an action for the exclusive benefit of the person entitled to recover.
What theory of recovery may a wrongful death action be brought?
under any theory of recovery, that the culpable actions of the Defendant proximately caused the death of an individual and thereby harmed his or her survivors by depriving them of financial and other support.
How are damage awards handled for survival actions?
Any recovery under a survival recovery becomes a debt owed to the estate and will be treated as one of the estate’s assets.
Are there hedonic damages or loss of enjoyment of life in wrongful death actions?
Most likely not, but remember that what damages are awarded depends on state statutes.
Non-Pecuniary Claims Generally for wrongful death.
(1) punitive damages,
(2) mental anguish or grief of the survivors
(3) loss of consortium (society, companionship, services, guidance and care).
What is taken into consideration when trying to calculate future losses?
inflation, taxes, and projected investment income from an award.
How are wrongful death actions affected by contributory negligence?
a wrongful death claim would fail if the decedent himself would have failed had he or she sued.
Anything that would have limited the original plaintiff’s recovery will also limit the recovery under a wrongful death recovery.
How are wrongful death actions affected by SOL?
Some courts will not allow the claim to be brought if the decedent couldn’t have brought it when they were alive.
Others start the clock at the time of death
The discovery rule of SOL in wrongful death claims
Courts are divided on whether the discovery rule bars suit when the decedent had not discovered the harm at the time of death.
Measurse of damages in wrongful death (pecuniary)
- Loss to survivors
- loss to estate
