Wrongful Death

Wrongful death lawsuits are different than other types of personal injury lawsuits.  A wrongful death action is brought by the surviving family members.  The recoverable damages do not include damages personal to the decedent, such as pain and suffering.  (See Survival Actions below).  The purpose of a wrongful death action is to provide relief to family members who have been injured emotionally and financially as a result of the family member's death.

Wrongful death laws, which vary from state to state, generally enable the decedent's beneficiaries to file a lawsuit for a death that was caused by a wrongful act or negligence of another. In California, only certain persons can file a wrongful death suit on behalf of a decedent.  These generally include the following three categories of persons:

  • The decedent's surviving spouse, domestic partner, children, and issue of deceased children.
  • Whether qualified under the first category or not, a putative spouse, stepchildren, and parents, if they were dependent on the decedent.
  • Whether or not qualified under the first or second category, a minor, who, at the time of the decedent's death, resided for the previous 180 days in the decedent's household and depended on the decedent for one half or more of his or her support.

Deaths caused by vehicular accidents, drunk driving, defective or dangerous products, medical negligence, failure to diagnose a fatal disease, homicide, or construction defects may trigger wrongful death claims. 

In a wrongful death action, it must be established that the proximate cause of the death was the negligence or other wrongful act of the defendant.  Since, as a general rule, the plaintiff in a wrongful death case stands in the shoes of the decedent, the plaintiff must make the same showing of proximate cause that the decedent, had he or she lived, would have been required to make in order to recover for the wrongful act that caused the death.   

The types of damages recoverable in a wrongful death lawsuit will vary depending on the jurisdiction. Below are some examples of types of damages that may be recoverable:

  • Loss of Financial Support. A large component of pecuniary recovery awarded in wrongful death actions is loss of financial support and contributions.  A wrongful death plaintiff may obtain the present value of future contributions that the decedent would have made during the period of life expectancy, including the loss benefits from the death, e.g., pension or retirement benefits.
  • Loss of Services. A significant element of wrongful death recovery is compensation for loss of the decedent's services, including personal service, advice and training.  Activities that the decedent would have performed, which would have saved the plaintiff the necessity of doing them or hiring another to do them, are compensable losses.
  • Loss of Care, Comfort and Society. Traditionally, recovery in wrongful death cases was limited to “pecuniary loss.”  Nevertheless, California courts have long awarded wrongful death plaintiffs damages for loss of care, comfort and society.  Although under the wrongful death statute there is no recovery for grief, sorrow, or emotional or mental distress caused by the death of the decedent, recovery of emotional distress damages may be proper under a theory of negligent or intentional infliction of emotional distress if the plaintiff witnessed the incident that caused the death.
  • Recovery of Funeral and Burial Expenses. The reasonable value of funeral and burial expenses that have been paid, or for which the wrongful death plaintiff remains liable, are recoverable, as are the costs of funeral services.  In the absence of evidence to the contrary, actual expenses will be considered a reasonable amount.  As such, evidence that a funeral bill was paid is evidence that it was reasonable.
  • Punitive Damages. Punitive damages are generally not permitted in wrongful death actions.  A few statutory exceptions exist, including a death that resulted from a homicide for which the defendant was convicted of a felony.

In all matters involving wrongful death, it is essential that certain measures be taken immediately to preserve evidence, investigate the incident, interview those involved in the incident as well as witnesses, and file a lawsuit prior to the deadline imposed by the statute of limitations. 

Survival Actions

A wrongful death action is distinguishable from an action that survives the death of a person to whom a cause of action has accrued.  It is often the case that a person whose death has become the subject of a wrongful death action did not die at the time of the wrongful act.  If an injured party did not die instantaneously, a personal injury cause of action exists for damages suffered between the time of the injury and the time of death.  This cause of action survives the death of the decedent and belongs to the decedent's estate.  It is different from the cause of action for wrongful death.  While a wrongful death action is a new action that accrues at the time of the decedent's death, a survival action is a means of preserving a distinct and separate cause of action that an injured person had before death.