Wrongful Death Or Survival Statute

Question 0

Common law does apply?

Answer 0

no to Both
No one to make whole
Small exception on Stang case where damage award was based on life lost itself damages (wrongful death, Stang v. Hertz)

Question 1

COA created by statute?

Answer 1

Both.

W/d- “Lord Campbell’s Act” -needed specific relative to being it

Question 2

Nominal plaintiff is the family?

Answer 2

Wrongful death.

Compensation for the family

Question 3

Nominal plaintiff is the dead guy?

Answer 3

Survival statute
It’s the cause of action that survives.
Plntf is the plntf’s estate.
(Heirs may recover, but as heirs to estate)

Question 4

Both Defenses effective 1)had Pltf survived and 2)also against the statutory plaintiff as well.

Answer 4

Wrongful death
Mitchell v. Akers
(Pool)

Question 5

Contributory negligence can be a defense?

Answer 5

Both- “if statute bars recovery” for c/n.
A c/n will not recover for wrongful death, but may for survival actions.
(Mitchell v. Akers)

Question 6

Damages for what the survivor lost?

Answer 6

Wrongful death

Question 7

Damages for injury to plntf’s person?

Answer 7

Survival action

Based on dead person injury

Question 8

Assessment ends with death?

Answer 8

Survival statute
Ex. I Akers awarded $5000 for phys. Pain & mental anguish suffered by child. Defense argue against no proof of pain & anguish. Court said yes, for 2-3 mins it took him to drown, could experience that.

Question 9

Personal injury, pain & suffering, medical costs, losses endured while alive………..?

Answer 9

Survival statute

Question 10

If there is no pecuniary injury to the statutory beneficiaries, may there be recovery for the wrongful death?

Answer 10

Wrongful death.Court may permit life itself to be considered for damage award
Stang v. Hertz - common law creeps into statute
***Statute exists for more than just compensation, promote safety and deterrence. **

Question 11

Pecuniary & non-pecuniary damages allowed?

Answer 11

w/d
Pecuniary-views humans as economic beings: financial support,medical&burial.
Non-pecuniary-loss of society, companionship, affection,
Few states allow grief & mental anguish

Question 12

Stang v. Hertz

Answer 12

Nun case. What is a life worth if took a vow of poverty? No prospective earnings, wouldn’t have moved on to another job in 10 years. “Damages are recoverable by proof of the life of the decedent.” Statute allows a representative to recover on deceased behalf.

Question 13

Loss of chance recovery

Answer 13

Mass allows recovery for wrongful death predicated on medical malpractice. Dr, liable for negligence that increased the probability of plntf’s death, only when the negl. treatment left the patient with less than 50% chance of survival, regardless of patients chances before treatment.

Question 14

Witty v. American General (1987)

Answer 14

Understand general trend.
Injury to unborn live birth- recovery
No life birth, previability- no recovery
No live birth, post viability- trend two recovery

Question 16

Huff v. White Motor Corp

Answer 16

Jury awarded 700,000 when Pltf asked for 676,600.
(Probably cuz compelling emotional story)
Ct does not reverse cuz not “monstrous” or “grossly negligent”
(Is deferential but not grossly so)

Question 16

Lowe v. uS

Factors for mental anguish awards in wrongful death

Answer 16

-duration & intimacy of relationship & ties of affection
-frequency of association
-attitude of dead & survivor towards each other
-duration & intensity of sorrow
-maturity or immaturity of the survivor.
-violence or suddenness of the death.
-sleeplessness
-extreme & unusual nervous reactions
-adverse effect on survivor work or school
-change of personality of the survivor
-loss of weight, physical symptoms
Age & life expectancy of the dead.

Question 17

Lowe v US

Factors for pecuniary injuries & W/D

Answer 17

• what dead customarily contributed
• time period beneficiary may have received contributions from dead
• what dead earned & reas. could have
• instruction, moral training, & supervision of education given to kids
• her health
• habits of industry, sobriety & thrift
• occupation
• life expectancy of dead & the spouse
• time which will elapse b4 each child reaches maturity.

Question 18

Disalvatore Rule

Answer 18

When can’t figure why pltf died in a neg claim, the presumption will be that the decedent acted reasonably.
Cancels decedent’s c/f or c/n

Question 20

Imputation of Fault

STATE IT ON EXAM

Answer 20

Usually doesn’t come into play in w/d & survival. No imputation of fault form spouse:spouse:parent/child (unless some statute creates it)
C/L provided for immunity w/in the immediate family, but overwhelm maj. reject interfamily immunity.
insurance loved inter-family