WRONGFUL DEATH CLAIMS - CALIFORNIA  LAW


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WRONGFUL DEATH AND SURVIVOR ACTIONS


WRONGFUL DEATH

the tort (negligence or other wrongful act),

the resulting death, and

the damages, consisting of the pecuniary loss suffered by the heirs.” [Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968].

 

WHO CAN MAKE A WRONGFUL DEATH CLAIM?

California Code of Civil Procedure Section 377.60 describes persons who may present a wrongful death action, including a surviving spouse, surviving children, or dependent heirs.  For more specific information, see article: Wrongful Death Claimants.


DAMAGES RECOVERABLE:

Damages awarded to an heir in a wrongful death action are in the nature of compensation for personal injury to the heir. [McKinney v. California Portland Cement Co. (2002) 96 Cal.App.4th 1214, 1231-1232].

 “The damages … fall into two categories called economic damages and noneconomic damages….

1. The financial support, if any, that decedent would have contributed to the family during either the life expectancy that decedent had before [his/her] death or the life expectancy of plaintiff, whichever is shorter;

2. The loss of gifts or benefit that plaintiff would have expected to receive from decedent;

3. Funeral and burial expenses; and

4. The reasonable value of household services that decedent would have provided.

 * * *

1. The loss of decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support;

2. The loss of the enjoyment of sexual relations;

3. The loss of decedent’s training and guidance.


 1. ...plaintiff’s grief, sorrow, or mental anguish;

 2. ...decedent’s pain and suffering; or

 3. The poverty or wealth of plaintiff.

 * * *”  [CACI No. 3921 DAMAGES]

 

SURVIVOR CLAIMS

"The survival statutes do not create a new cause of action, as do the wrongful death statutes...They merely prevent the abatement [i.e. dismisssal, termination] of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased."  [Grant v. McAuliffe (1953) 41 Cal.2d 859,  864].

A cause of action that survives the death of a person passes to the decedent's successor in interest and is enforceable by the "decedent's personal representative or, if none, by the decedent's successor in interest." (CCP 377.30.)

In the typical survivor action, "the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement." (CCP 377.34.)

IBut one exception to the rule is that damages for the decedent's pain and suffering are recoverable in a survivor action under the Elder Abuse Act if certain conditions are met. [See Welfare & Institutions Code, 15657(a) & (b)].

 

STATUTE OF LIMITATIONS (“SOL”)


PROPOSITION 213 AND WRONGFUL DEATH

But if the heir was vehicle's uninsured owner/operator, then noneconomic damages may not be recovered by that particular wrongful death plaintiff heir [Horwich v. Superior Court (1999) 21 Cal.4th 272, 278].

 
Disclaimer:
This is a general article.  This area of the law can be highly complex.  Many issues can arise that were not discussed.  This article is not to be relied on a legal advice.  If you desire legal advice, consult or retain a lawyer regarding the specifics of your situation. Further Disclaimer.

 Author: Attorney Matthew B. Tozer
 
Copyright 2017

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