Grief, Sorrow, or “Sentimental Losses” to Surviving Family

Many courts have held that a beneficiary’s grief, sorrow, and emotional or “sentimental loss” caused by another person’s wrongful death is not a “pecuniary loss” allowable under a death statute restricting recovery to such economic losses. This view has been applied to lawsuits brought for the benefit of a decedent’s parent, spouse, child, and collateral relatives. Although it is unfair for legislatures to disregard such losses, it seems clear that there can be no legal recovery of losses under statutes limiting recovery to economic loss suffered by the decedent’s estate.

An award for grief suffered by beneficiaries has been allowed by some courts for the grief of a husband over the death of his wife, the grief of a wife over the death of her husband, and the grief of a parent, a child, or the decedent’s brothers and sisters (Am Jur 2d 1988:§ 234).

By express statutory amendment, or judicial construction, it seems that an increasing number of states are recognizing that nonpecuniary losses arising from the death of a child—such as loss of society, comfort, and affection—are compensable elements of damages. The majority of American jurisdictions, however, including several that allow damages for sentimental losses, still hold that the grief, bereavement, anxiety, distress, or mental pain and suffering of the beneficiaries may not be regarded as elements of damages in an action for the wrongful death of a child, reasoning that because such losses are inestimable, sympathetic juries may return large and arbitrary verdicts. Because there are some state cases to the contrary, this is an element of damages that must be looked at carefully in the jurisdiction where the case will be venued, in light of both the statute and the cases interpreting the statute (Am Jur 2d 1988:§ 235).

Pre-Impact Fear, Anxiety, and Emotional Distress

In a personal injury lawsuit, some of the specific elements of “intangible” or noneconomic damage that may be considered by the triers of fact in determining a fair and reasonable amount of the verdict are pain, suffering, mental anguish, disability, impairment, and loss of enjoyment of life. It would be dangerous and possibly inaccurate, however, to assume that because the jury in a personal injury lawsuit could consider these elements, therefore the jury could also do so in an action under a survival statute. A very important emotional and mental interest is recognized and protected in the majority of states: the decedent’s anxiety, fear, pain, and suffering experienced between the time of injury and death. The following is a discussion of antemortem damages.

Pre-impact fright or distress is defined as the distress suffered by the decedent on the realization of peril (see, e.g., Haley v. Pan American World Airways [1984], applying Louisiana law; Shu-Tao Lin v. McDonnell Douglas Corp. [1983], applying Michigan law). Predeath terror as a basis for recovery is especially prominent in air disasters. For example, In re Korean Air Lines Disaster (1992) and Estate of Zarif v. Korean Air Lines, Co. (1993) were cases where airline passengers alive for a period of time after the plane was disabled by a missile could recover for conscious pain and suffering prior to death. And in Datsow v. Teledyne Continental Motors Aircraft Prods. (1993), the pain and suffering of four members of a family who died when a fire broke out in a plane during flight were, under New York law, allowed to be recovered and were inclusive of an awareness of impending death, both for themselves and for each other. It is also an element of damages that has been recognized in motor vehicle crashes (Boston et al. 2002:chap. 6:27). In recent years, more courts have allowed recovery for pre-impact distress in wrongful death fact situations that would have been previously denied.

Some jurisdictions recognize that the decedent’s fear and anxiety of “impending doom” or serious injury prior to a physical impact on the victim or the traumatic event is a recoverable damage element under the survival type statute (Fuchsberg 1984). In one case, the parents of a 15-year-old driver killed when his pickup truck was struck broadside at an intersection were allowed to recover damages that included pre-impact fright and suffering, even though there was no proof of consciousness and no evidence the decedent saw the oncoming vehicle prior to collision because no skid marks or other evidence showed any evasive action.

This case is indicative of a modern trend by trial and appellate courts to recognize that no death is truly “instantaneous.” Therefore, courts such as the Appellate Division in New Jersey have almost taken judicial notice of antemortem losses and shifted the burden of going forward with proof of “no conscious pain” to the defense (Smith v. Whitaker [1998]; Tirrell v. Navistar International, Inc. [1991]).

Plaintiffs who can successfully prove pre-impact distress as an element of damages in a death claim for pain and suffering have recovered significant amounts of damages for even seconds of mental anguish (Fuchsberg 1984). The amount of time during which distress was experienced is not necessarily determinative. For example, in Hurst Aviation v. Junell (1982), the $20,000 award was upheld despite the brief duration of the victim’s mental suffering in light of the court’s finding that the pilot could be inferred to have “suffered the horror of his impending doom” as he lost control of his plane. Even in an action where the duration between the decedent’s apprehension and the fatal injury was brief, a court found that “a tremendous amount of fear could be inferred” Green v. Hale (1979).

Be aware, however, that some courts are still reluctant to award damages for pre-impact distress (see, e.g., Nye v. Commonwealth, Dept. of Transportation [1984]). Although denying recovery for pre-impact fright, the court allowed that it might award such damages if there was proof that the decedent suffered physical harm. Some courts deny recovery based on traditional concerns with limiting emotional distress damages (see, e.g., Fogarty v. Campbell 66 Express [1986]). In addition, courts may not allow damages for pre-impact distress under the particular test adopted in that jurisdiction to separate lawful emotional distress claims from those for which recovery will be denied. (See Speiser et al. 1992:chap. 16, for a detailed discussion of pre-impact distress damages under the old “Impact Rule” and Speiser et al. 1992:chap. 17, for a detailed discussion of pre-impact distress damages under what is referred to as the “Zone of Danger Test.”) Conscious awareness of approaching death has been found to be a proper element to consider in evaluating mental suffering (Boston et al. 2002:chap. 6:27).

Post-traumatic Fear, Anxiety, Pain, and Suffering of Deceased

The decedent’s postimpact or posttraumatic and pre-mortem fear, anxiety, pain, and suffering are ordinarily not elements of damage under a statute that restricts recovery to the beneficiaries’ pecuniary loss or that authorizes a recovery only for damages resulting to the estate. There is also authority holding that such pain and suffering are not recoverable under a statute that authorizes such damages “as under all the circumstances of the case may be just” (Am Jur 2d 1988:§§ 239 and 240).

Where a statute expressly authorizes damages for a decedent’s pain and suffering, or where it provides for survival of a decedent’s cause of action, then awards for such pain and suffering are sometimes allowed. It does appear that a majority of states do allow recovery for pain and suffering experienced prior to death under the survival statutes of the majority of jurisdictions and also that the majority of states have considered the issue under a wrongful death statute (Am Jur 2d 1988:§ 239).

Any award of damages for pain and suffering requires that conscious pain and suffering be experienced. Death cannot be “instantaneous.” Therefore, there can be no recovery for pain and suffering of a decedent killed in an accident wherein life could have lasted for only the smallest interval of time after the tremendous impact. On the other hand, premortem recovery for conscious pain and suffering is usually allowed where there is expert testimony, usually by a forensic pathologist, that the deceased would have remained conscious and suffered pain following a fatal trauma or impact. Substantial awards for pain and suffering have been made in cases where the victim survived only a brief period of time. As one court explained,

A person in great pain and suffering can live a veritable lifetime of misery in a matter of moments, a 20-minute period of great pain and suffering is not to be shrugged off as infinitesimal, too minute for the law to count or to care. (Am Jur 2d 1988:§ 240)

In addition to death not being instantaneous, it must be shown that the victim was “conscious” at least part of the time prior to death or unconsciousness. Therefore, a recovery will be denied where the decedent is given anesthesia prior to surgery, was rendered completely unconscious as a result, and did not regain consciousness before he or she died. Likewise, where the decedent was unconscious from the time of the accident until the time he or she died 12 days later, there could be no recovery for conscious pain, although there may be allowable what is discussed below as “hedonic damages” or the loss of enjoyment of life during the unconscious period of life prior to death (Am Jur 2d 1988:§ 240; also see below, section titled “Loss of Enjoyment of Life or ‘Hedonic’ Damages”).

Courts have upheld damage awards for periods of pain or suffering of very short duration (DeLong v. County of Erie[1982]). In one case, a court found damages were due regardless of how quickly unconsciousness resulted, where the court believed the victim probably suffered tremendous pain and terror in contemplation of his imminent and horrible death because of the nature and happening of the accident (Farlow v. Roddy [1985]). Some courts, such as Louisiana, Michigan, New Jersey, and Utah, recognize the “presumption of continuing life” that presumes an injured person’s life continued unless affirmative evidence is produced showing that death occurred earlier, thereby shifting the burden to prove the time of death onto the wrongdoer (Smith v. Whitaker [1999]).

“Death rarely may be instantaneous in fact.” 313 N.J. Super, at 185, 713 A. 2d 20. Consistent with that view, some jurisdictions have rejected altogether the notion of “instantaneous death” as an artificial legal fiction, reasoning that because the injury-causing conduct must logically precede the injury it causes, “Common sense compels that conclusion that both the cause of death and death itself did not occur in the same split second. The cause of death must come first, and the death must follow as a result.” (Justin v. Ketcham [1941]; see also Ford v. Maney’s Estate [1930]; Smith v. Whitaker [1999])

Medical Expenses or “Expenses of the Last Illness”

Where the death statute is one that creates a new cause of action not based on survival and does not make specific provision for recovery of medical expenses caused by the fatal injury, such expenses are generally not recoverable. Therefore, a suit to recover medical expenses incurred by the decedent’s father or children will not be authorized by a statute providing for damages for pecuniary injury (Am Jur 2d 1988:§ 241).

There are contrary decisions holding that expenses incurred by reason of the fatal injury, such as the cost of emergency transportation, emergency care, nursing, hospital care, surgical procedures, and medical attendance, may properly be considered in estimating the damages for wrongful death, at least where one of the beneficiaries is liable for these expenses. There is authority indicating that in the common law, a surviving wife had a right of action against a person who caused the wrongful death of her husband to recover medical expenses for which she was liable under a separate family expense statute and that were rendered necessary by the defendant’s wrongful act and were incurred and paid by the wife. Some state statutes may specifically make the recovery in a wrongful death action subject to the “expenses of the last illness” (Am Jur 2d 1988:§ 241).

Funeral and Burial Expenses

Although it seems quite fair and logical that damages should be allowable to compensate for burial expenses in wrongful death cases, such expenses have also been held not to be a proper element of damages. Under the misguided principle that a person cannot sue and recover for his or her own funeral expenses, it has been held that there can be no recovery for such expenses in an action under a so-called survival statute. That a statute does not specifically authorize an award for funeral expenses, however, does not necessarily mean that recovery is not subject to such expenses. The distribution statute may expressly subject the award to these expenses (Am Jur 2d 1988:§ 242).

Lost Inheritance

In some states, the amount of money a deceased might reasonably have been expected to save during a normal lifetime and at death leave to beneficiaries may be considered as an element of damage, provided that evidence supports the alleged loss. Therefore, one court has held that in fixing damages in a wrongful death action brought by a widow, the accumulations that probably would have accrued to the beneficiaries of the estate of the deceased husband had he lived out his normal life span should be considered (Am Jur 2d 1988:§ 244).

Other authorities take the position that the loss of an anticipated or expected inheritance is not a compensable element of damages. The usual reasoning given is that such damages are “too speculative” in nature. The absence of evidence tending to prove that a decedent was capable of ever accumulating savings or property to which a beneficiary would have been entitled and have inherited at some future time has been held to prevent the trier of fact or jury from considering loss of inheritance as an element of damages.

Lost Earnings or Accumulations

Under statutes authorizing a recovery of damages for the benefit of the estate, or such damages as a decedent might have recovered, the “net earnings” of a decedent have been allowed as an element of damages. As expressed by some courts, the present value of the accumulations that a decedent would have made to his or her estate had the decedent lived out his or her life expectancy is a proper element of damages.

On the other hand, under a survival statute, but under which the recovery is, nevertheless, for the statutory beneficiaries, the amount that a decedent would probably have accumulated and left as part of his or her estate had he or she lived has been held not to be a suitable measure of damages. And it has been said that under such a statute calling for “just” damages, the recovery should be the sum that would have compensated the deceased for the destruction of his or her capacity to carry on life’s activities as the decedent would have done had he or she not been killed. This compensatory damage includes the destruction of the deceased’s future earning capacity, for such time as he or she would probably have lived. The loss of future earnings, however, must be awarded with reasonable allowance for the effect of the ordinary variables of life on his or her continued enjoyment of those capacities. In addition, as far as destruction of earning capacity is concerned, another discounting factor that is used is to reduce the future lost wages to a present value. That is, the total amount of future lost wages (computed by simply multiplying the number of future years of earning capacity × the amount of wages lost per year) are often reduced by the amount of taxes to be paid each year and then that net wage loss is “discounted to present value.” That discounting is usually done by an economist who uses a discount formula (wherein future inflation is offset by future interest earned on the amount awarded) that allows for the fact that a present payment will be made in lieu of annual or periodic sums which, had he or she lived, would have been received periodically into the future. Also, under such a statute, it has been said that in compensating for the destruction of earning capacity by death, the court’s inquiry is to probable net earnings, in the ordinary sense of that phrase as used in accounting practice, during the probable lifetime; these damages are not to be measured by the probable net savings or accumulations of the decedent. Evidence as to savings can be admissible under the statute, however, as part of the overall picture of the decedent’s activities (Am Jur 2d 1988:§ 244).

Lost Gifts and Contributions

One type of “pecuniary loss” to beneficiaries, in addition to the loss of earnings or financial support, is the loss of the decedent’s financial assistance by way of gifts or other money contributions to a family member. In addition to the value (net or gross) of a deceased’s earnings that reasonably would have been contributed to the family during the period of his or her life, surviving family members may be able to claim any sums of money the decedent might reasonably have been expected to spend for the support and maintenance of the beneficiaries, including past and future financial aid, or regularly paid gifts that the beneficiaries might reasonably have expected to receive from the decedent during his or her life.

Gifts and contributions are not restricted to those that resulted to the beneficiaries from the mental or bodily labor of the decedent but may include those derived from the decedent’s income from other sources, such as investments. Because this type of damage is for the probable contributions and gifts to be bestowed by the decedent to the beneficiary, the beneficiary’s recovery is limited to a monetary award based on the decedent’s life expectancy or that of the beneficiary, whichever is shorter (Am Jur 2d 1988:§ 249).

Lost Services

In a wrongful death action aimed at compensating the survivors, the pecuniary value of any household or family services the beneficiaries might reasonably have expected to receive from the decedent is an item of economic loss to be taken into account when determining damages. In some instances, the court may allow the value of future services lost to a wholly owned family business for which the decedent worked gratuitously. Similarly, a spouse might be entitled to recover the economic value of the deceased spouse’s services, even though the services consisted primarily of housekeeping, tutoring, and child care (Am Jur 2d 1988:§ 250).

Even the economic value of a child’s household services may be taken into account in establishing an award for the surviving parents. One approach to measuring damages in a parent’s action to recover for a child’s death is to place a reasonable value on the child’s services from the time of the death until the child would have attained majority or have become emancipated. This concept also applies in actions by the children for the death of a parent.

The fair and reasonable value of any services claimed are usually evaluated by an economic expert and then fixed by the jury, although expert opinion may not be required. The value of a deceased’s services cannot be what the beneficiary may consider them worth (Am Jur 2d 1988: § 250).

Lost Advice, Counsel, and Guidance

Loss of advice, counsel, and guidance has been allowed as an element of damages. It is often said that a child’s loss of the guidance probably to have been received from a wrongfully killed parent may constitute a “pecuniary loss.” It is not “speculative” because it is a type of service on which economists can place a reasonable replacement value. As one court explained, damages for wrongful death should not be limited to compensation for losses with ascertainable economic value. Rather, the measure of damages can be the value of any benefits the heirs could reasonably have expected to receive from the deceased. These benefits may include personal services, advice, guidance, counseling, and training of the heirs. An award of damages to four minor children for the death of their mother killed in an automobile accident was proper without the necessity of showing that the mother was making any substantial monetary contributions to her children. There are, however, court decisions that totally deny any damages for loss of filial or parental guidance, advice, and counsel (Am Jur 2d 1988:§ 251).

Where loss of advice, guidance, and counsel are compensable, the amount of monetary compensation will depend on the degree of guidance needed by the beneficiary involved, as well as the quantity and quality of the guidance lost. Some courts limit such element of damages to the loss of instruction or moral and intellectual training for the remaining period of minority of the children involved. Other states do not limit a child’s recovery for the loss of a parent’s nurture, instruction, and moral, physical, and intellectual guidance, and in some states even an adult married child may recover from the wrongdoer for the unlawful death of a parent (Am Jur 2d 1988:§ 251).

Lost Society, Companionship, or “Consortium”

The loss of society and companionship of a decedent and the acts of kindness that originate in a relationship between a decedent and beneficiaries can be held incapable of being measured by any material or pecuniary standard and therefore not proper elements of loss under wrongful death statutes confined pecuniary losses. This view disapproves any compensation for noneconomic, intangible, sentimental, incalculable losses, including the loss of love and affection of, or protection by, a decedent (Am Jur 2d 1988:§ 252).

The modern legal trend is toward allowing recovery for such technically noneconomic damages such as loss of companionship. As a result of either judicial interpretations or specific amendments to the governing statute, civil case awards have been allowed for the loss of society, companionship, comfort, kindly offices, love, affection, attention, care, and protection of the decedent. Many of the cases allowing such damages for lost companionship and the like have been brought pursuant to statutes that authorize “such damages as under all the circumstances of the case may be fair and just” or “such damages as the jury may assess, taking into consideration all the damages of every kind to any and all parties interested in the action” (Am Jur 2d 1988:§ 251).

Loss of Enjoyment of Life or “Hedonic” Damages

In many jurisdictions, the strict requirements for proving “consciousness” are loosening. There can be recovery of damages for a decedent’s pain and suffering even if the decedent was partially conscious between the time of injury and the time of death (Boston et al. 2002:chap. 6:27). In recent years, recovery has been allowed in cases where the only proof of consciousness was the fact that the fatally injured victim was breathing, moving, moaning, and able to respond by squeezing a bystander’s finger in response to questions (Khare 1994). As an example, the widow and children of a worker fatally injured when a metal pole he was using contacted an uninsulated power line brought a wrongful death and survival action against the power company and recovered an award for conscious pain and suffering because the court accepted as evidence of pain and suffering the fact that the victim was lying at the bottom of a bin, breathing, with a bloody cut on his head, and moaning audibly. In addition, the court considered the fact that the decedent squeezed his wife’s hand when she asked him to do so (Pape v. Kansas Power and Light Co. [1982]; see also Fudge v. City of Kansas City [1986], which upheld a $50,000 award for pain and suffering based on testimony of the victim’s mother-in-law that victim squeezed her finger several times in response to things she told him about his children and family, despite defense expert testimony that the victim was so deeply unconscious that he could feel no pain).

A fatally injured person who is rendered unconscious for a period of time prior to death may, depending on the jurisdictional law, be entitled to recover “loss of enjoyment of life” during the period of time he or she was disabled and rendered comatose. At least one state has correctly analyzed that in addition to damage categories for pain and suffering, lost income or income earning capacity, and out-of-pocket expenses, there is another general category of damages for “disability and impairment.” Therefore, even though a plaintiff lapsed into an irreversible coma and remained in a comatose state for over 1 year, the decedent’s loss of enjoyment of life for his or her “final time” on earth was a proper element for the jury to consider and award damages. The court logically reasoned that loss of enjoyment of life was distinct from “pain and suffering” because unlike pain and suffering, the evaluation of disability and impairment does not require the jury to focus on the victim’s “consciousness” or awareness of his or her disability (Eyoma v. Falco [1991]; Moscatello v. U.M.D.N.J. [2001]; Thomas v. Ford Motor Company [1999]).

Punitive or Exemplary Damages

Tort law is primarily concerned with the fair allocation of losses and the compensation of individuals rather than the public for losses caused by a tortious interference or insult to a legally recognized interest (Prosser 1984:chap. 6).

Arising out of the various and ever-increasing clashes of the activities of persons living in a common society, carrying on business in competition with fellow members of that society, owning property which may in any of a thousand ways affect the persons or property of others—in short, doing all the things that constitute modern living—there must of necessity be losses, or injuries of many kinds sustained as a result of the activities of others. The purpose of the law of torts is to adjust these losses, and to afford compensation for injuries sustained by one person as the result of the conduct of another. (Prosser 1984:chap. 1)

The idea of punishment, or of discouraging other wrongdoing, usually does not enter into a civil tort case, except to weigh the scales in favor of the plaintiff’s interest in establishing that a tort was committed; however, there is a concept called punitive or exemplary damages. This type of damage is given to a plaintiff in addition to compensatory damages when a defendant’s wrongdoing or tortious conduct has been malicious, intentional, and deliberate and has the character of outrage associated with a crime. “Smart money” (i.e., an amount of money that will make the wrongdoer “smart”), “punitory,” “vindictive,” or punitive damages are given for the purpose of punishing a defendant, teaching him or her not to do it again, and also deterring others similarly situated from following the example of the defendant’s wrongdoing (Prosser 1984:chap. 9; Lee and Lindahl 2002:chap. 21:2; BMW of North America, Inc. v. Gore [1996]).

The generally accepted definition of punitive damages is “damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future” (Restatement (Second) of Torts 1977;§ 908[1]; Prosser 1984: chap. 9). This concept of punitive damages contains three important principles: (a) Punitive damages are distinctly not the same as compensatory or nominal damages, (b) punitive damages fulfill the dual objectives of punishment and deterrence, and (c) punitive damages are predicated on “outrageous” conduct by the defendant wrongdoer (Lee and Lindahl 2002:chap. 21:2).

Recently, the U.S. Supreme Court, in two landmark cases—Pacific Mut. Life Ins. Co. v. Haslip (1991), and BMW of North America, Inc. v. Gore (1996)—rendered decisions that set forth the factors to apply to a “court’s excessiveness inquiry” into whether or not a punitive damages award is “excessive.” Three “guideposts” were announced for any judicial review of a punitive damages award to ensure that the monetary amount of punitive damages was not “unconstitutionally excessive.” The three guideposts are (a) the degree of reprehensibility of the defendant’s conduct, (b) the disparity between the harm or potential harm suffered by the plaintiff and the punitive damages awarded, and (c) the difference between the punitive damage remedy and the civil penalties authorized or imposed in comparable cases (BMW v. Gore [1996]).

Under what has been called “the general rule,” punitive damages cannot be awarded in a wrongful death statutory action unless the governing statute expressly or by clear implication confers the right to such damages. Following the doctrine that the damages recoverable are for the pecuniary loss sustained by the beneficiaries, courts have excluded punitive damages, even where aggravating circumstances would warrant them, in an action between the person injured and the person inflicting the injury. Under some survival statutes, however, an injured person’s right to punitive damages may survive death and therefore be pursued and recovered by the representatives of the estate. It is important to note, however, that some courts have also held that even under a survival-type statute, there would be no right to recover punitive damages because the courts interpret the intent of the legislature to allow actions to survive for injury to the person of the deceased and to recover only compensatory damages, not punitive or exemplary damages (Am Jur 2d1988:§§ 256 and 257).

Some Special Death Laws

A number of states have statutes that confer a special right of action where death is caused under particular circumstances. Most of these statutes deal with the liability of an employer for the injury or death of his or her employees.

Workers Compensation Acts

Another category of civil remedy for death, in addition to wrongful death/survivorship statutes is the workers’ compensation statutory system available to the surviving spouse and children of a worker who is killed in the course of employment. Under the common law, a large number of industrial accidents went uncompensated. Because the worker or surviving spouse was least able to absorb any losses and because litigation caused delay in treatment or monetary recovery, the first state statutory system of workers compensation was enacted in New York in 1910. By 1921, all but a few states had passed such laws (Prosser 1984:568-80). “It has been said that no subject of labor legislation ever has made such progress or received such general acceptance of its principles in so brief a period” (Prosser 1984:573). The old campaign slogan was “the cost of the product should bear the blood of the workman” (Prosser 1984:573). Subject to certain exceptions for flagrantly unsafe, reckless, or suicidal conduct on the part of the deceased, most workers compensation statutes allow death benefits to be paid to the surviving spouse regardless of any negligence of the deceased that caused or contributed to the death. The public policy trade-off or social compromise for the workers’ surviving family to collect workers compensation death benefits is that the deceased worker and survivors have no legal right to sue the employer or fellow employees for any wrongdoing that caused the death. That is, the worker or surviving spouse accepts limited compensation, usually less than what a jury might reasonably award, in return for the assurance of prompt payment and extended liability of the employer.

The workers’ compensation “bar” provides that all rights and remedies provided by the state compensation act that enables the survivors of a worker to recover fixed, statutory benefits excludes the right of the employee’s next of kin from bringing any lawsuit for wrongful death or survival damages against the employer. Only when the wrongful death is caused by wrongdoing of a “third party” who is not a fellow employee or employer can a wrongful death case be brought. What should always be kept in mind is the legal fact that if such third-party suit is successful, some compensation statutes provide that the employer or the workers compensation insurer may have a right of subrogation to recover back from the estate of the deceased some or any of the workers compensation paid (Speiser et al. 1992:chap. 1:26). This “workers compensation bar” to any civil suit is subject to some very narrow exceptions; one such “exception to exclusivity” is if, for example, the employer or employee acted in some intentionally wrongful manner to cause the death (Prosser 1984:576-77).

Social Security

The Social Security Act provides another legislative remedy for wrongful death. Just as with workers compensation, the Old Age, Survivors’ and Disability Insurance provides money benefits regardless of whether there was any fault or wrongdoing. Unlike workers compensation, however, the federal program does not have any subrogation rights. That is, SSA death benefits may be kept in addition to any monetary recovery from a lawsuit for wrongful death (Speiser et al. 1992:1:26).

Wrongful Death Caused by Government Entities

Other special statutes cover the liability of states or other governmental subdivisions for wrongful death. For example, Connecticut makes special provision for an action against the State Highway Commission for death caused by the neglect or default of the state or any of its employees that results in a defective road, bridge, or sidewalk or the lack of a railing or fence on a road or bridge that without such railing or fence is unsafe.

In addition, a number of general wrongful death statutes contain special provisions, primarily concerning statutes of limitation and requirements of written notice, that are applicable to wrongful death actions brought against a state, county, or municipality (Speiser et al. 1992:chap. 1:14).

Construction Safety Statutes

Other state statutes impose liability on owners, contractors, subcontractors, or other persons responsible for supervising work, primarily in the construction, repair, or similar businesses, for injury or death resulting from the violation of specified safety statutes (Speiser et al. 1992:chap. 1:14).

Death on the High Seas

The federal Death on the High Seas Act (DOHSA) found at 46 U.S. Code 761 provides a remedy for death resulting from a wrongful act, neglect, or default that occurs on the high seas more than a “league” (3 nautical miles) from the shore of a state, District of Columbia, or a territory or dependency of the United States. Recovery under the DOHSA is based on “fair and just compensation for the pecuniary loss sustained.” The elements of damages recoverable are the same as under most “pecuniary loss to survivors” death statutes. The act was amended in 1980 to provide a 3-year limit from date of accrual to maintain a cause of action (Speiser et al. 1992:1:18).

Admiralty Law for Deaths on Navigable State Waters

DOHSA applies only to deaths on the high seas. It does not preempt state law remedies for deaths that do not occur on the high seas. Admiralty law provides a cause of action for deaths occurring on navigable waters within the jurisdiction of a state. The remedy to be applied is no longer the state death act, as it was prior to the Supreme Court’s landmark decision in the Moragne case in 1970, but is now the common-law maritime cause of action for wrongful death (Speiser et al. 1992:chap. 1:7).

Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) removes the protection of “sovereign immunity” from the federal government and provides that the United States may be sued in federal district court for damages resulting from the negligence of a government employee acting within the scope of his or her employment (28 U.S. Code 2680). An injury or death resulting from the exercise of a discretionary function by a federal employee is immunized or “not actionable.” Evidence, however, must support the government’s contention that the acts of its agents were within the discretionary exception of the statute. The fault or liability of the government is determined by reference to the law of the place where the act or omission occurred. Therefore, with certain exceptions, state law will be applied to issues of both liability and damages under the FTCA (Speiser et al. 1992:1:19).

Federal Employees Liability Act

The Federal Employers’ Liability Act (FELA) provides railroad workers in interstate or foreign commerce a remedy for death caused in whole or in part by the negligence of the railroad (45 U.S. Code 56). The worker is deemed to be involved in interstate commerce if any part of his or her duties in any way affects interstate commerce.

It has been stated that negligence that contributes to an injury is a sufficient basis for liability under FELA, even though the particular accident might not have been anticipate (Speiser et al. 1992:chap. 1:20).

Federal Civil Rights Act

The federal Civil Rights Act provides a remedy in the form of a civil action for money damages recoverable by any person deprived of a constitutional right, privilege, or immunity by anyone acting under color of state authority (42 U.S. Code 1988). The act has been interpreted as creating a new cause of action and a new remedy, enforceable under federal law (Speiser et al. 1992:chap. 1:21).

Longshoremen’s and Harbor Worker’s Compensation Act

The Longshoremen’s and Harbor Workers’ Compensation Act provides for compensation to employees for death from injury occurring on the navigable waters of United States, including any dry dock, if recovery for such death is not provided through state statutory workmen’s compensation (Speiser et al. 1992:chap. 1:23).

Emotional Distress of Bystander or “Zone of Danger” Plaintiff

This cause of action is not part of or derived from wrongful death or survival statutes or laws. This is a separate cause of action for “a bystander” who has a certain relationship to the injured plaintiff. It is discussed herein, however, because there are often cases where family members may also have a separate cause of action for emotional distress as a result of being a “bystander” to the wrongful death.

The “bystander” cause of action originated in the seminal case of Dillon v. Legg (1968) (Boston et al. 2002). The Restatement (Second) of Torts (1977), in § 463 “Physical Harm Resulting from Emotional Disturbance,” has adopted the reasoning of Dillon, and provides,

1. If the actor’s conduct is negligent as violating a duty of care designed to protect another from fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely through the internal operation of fright or other emotional disturbance does not protect the actor from liability.

2. If the actor’s conduct is negligent as creating an unreasonable risk of causing bodily injury to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability.

3. The Rule stated in subsection (2) applies where the bodily harm from the other results from his shock or fright at harm or peril to a member of his immediate family occurring in his presence.

In some states, there can be a separate and distinct cause of action for a family or close relative who suffers emotional distress by witnessing the serious injury or death of a loved one. This “bystander’s claim” for emotional distress allows such a witness to a fatal accident to recover individually, separate and apart from the right of the deceased’s estate or the surviving family member, under wrongful death and/or survivor statutes; there are certain prerequisites.

The majority of states do not recognize any right to recovery for emotional distress or mental anguish suffered by a bystander who witnesses another’s injury or death in the absence of any reasonable and personal fear of impact or safety to the plaintiff-witness. Some states, however, do allow a person who is (a) in a close relationship, not necessarily a blood relationship, with the deceased, and (b) who personally witnessed the traumatic event or the immediate aftermath at the scene and (c) as a result sustained severe emotional distress, to recover separate damages for the emotional distress suffered (Restatement (Second) of Torts 1977: §436; Herbrand 1979).

Some courts distinguish the “bystander” cause of action for severe emotional distress as a result of witnessing serious or fatal injury to a family member from the cause of action for psychic trauma suffered by a person who is in the “zone of danger” at the time of a fatal traumatic event.

When a tortfeasor’s conduct violates a duty of care designed to protect another from fright or other emotional disturbances that the wrongdoer should recognize involves an unreasonable risk of bodily harm or death, the fact that the harm results solely through the internal operation of fright or other emotional disturbance does not protect a tortfeasor from liability. The Restatement (Second) of Torts (1977) provides that

if a defendant “unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily injury if the defendant (1) should have realized his conduct involved an unreasonable risk of causing distress or otherwise than by knowledge of harm or peril of a third person and (2) should have realized that the distress if it were caused, might result in illness or harm (§ 313).

A significant number of jurisdictions apply the zone-of-danger principle for those who sustain no immediate impact and contemporaneous injury but who nevertheless suffer emotional distress because they were physically imperiled by the defendant’s negligence (Boston et al. 2002:chap. 6:4). The “zone-of-danger plaintiff” may be a member of the family who, although not physically injured in the same fatal event as the deceased victim, nonetheless, was caused severe emotional distress by being within the “zone of danger.” For example, members of the same family, in the same car, sitting close to where the decedent was fatally struck who, although not physically injured themselves, nonetheless were severely frightened and caused emotional distress as a result of a violent and unnerving collision sequence, may be able to recover damages for their emotional distress in some states, such as New Jersey (Falzone v. Busch [1965]). This is an exception to the general rule that negligence resulting in emotional distress alone is not actionable (Restatement (Second) of Torts 1977: §436 A).

Who Are the “Beneficiaries” or “Next of Kin”?

Because wrongful death and survivorship actions are statutory, the right to receive a recovery or the right to be a “beneficiary” of the statutory cause of action is usually set forth in the statute for the exclusive benefit of certain persons or classes of persons. The terms heirs, next of kin, distributees, or statutory beneficiaries are used synonymously in death statutes (Speiser et al. 1992:chap. 10:17). There is conflicting law among the jurisdictions in the United States as to whether the word heirs in death statutes is limited to “lineal descendents” or whether it includes “collateral relatives” (Speiser et al. 1992:chap. 10:17). It is important to recognize, however, that even where the relationship between the deceased and the beneficiaries was distant or remote, the statutory beneficiaries are entitled to a recovery. That is, even where the relationship with the decedent was not as close and loving as that of a healthy marriage between a husband and wife or a loving and caring parent-child relationship, the remoteness of the relationship will not bar a substantial recovery of damages (Speiser et al. 1992:chap. 10:17).

The sufficiency, or excessiveness, of an award made, depends upon the particular facts of each case; it is clear that in some instances the relationship of father and son, or husband and wife, will not be as close or dependent as that of brother and sister, or grandparent and grandchild. (Schweitzer 1954:318)

The beneficiaries need not be the personal representative or administrator of the estate in whose name the lawsuit is brought. Most cases hold that there cannot be a lawsuit if the statutory beneficiaries do not exist (Speiser et al. 1992:chap. 10:1). Courts that apply the rule that the existence of beneficiaries is necessary before any damages are recovered differ as to when the beneficiary must be “in existence.” That is, some courts hold that the beneficiary must be alive at the time of the decedent’s death, whereas other courts hold that the lawsuit cannot be maintained unless the beneficiary was alive at the time the action was filed. Some courts even hold that the beneficiaries must be alive at the time of the final judgment or settlement (Speiser et al. 1992:chap. 10:1)

Many of the wrongful death statutes set up separate classes of beneficiaries. Sometimes these classes are “exclusive beneficiaries,” meaning that the right to sue applies only to the benefit of the first preferred class if any beneficiaries of that class are alive. If no beneficiary of the first preferred class is alive, then the “right of action” or right to bring a lawsuit and receive a recovery will pass to the next in line of preference. Some states have statutes that do not specify classes of beneficiaries but, rather, designate certain persons for whose benefit the suit for wrongful death and/or survivorship can be brought (Speiser et al. 1992:chap. 10:1).

Determining whether a surviving family member qualifies as a beneficiary under the law of the jurisdiction that applies to the wrongful death case requires careful and competent legal advice. Spouses of the decedent are recognized as beneficiaries in every jurisdiction (Speiser et al. 1992:chap. 10:1). Even this issue may become cloudy, however, if the decedent and surviving spouse were in a common-law marriage. Courts have consistently held that for a recovery under wrongful death statutes, the legal requirement of a “lawful marriage” must be met. Therefore, various cohabitation arrangements short of a lawful marriage have been denied any right to recovery under the wrongful death laws (Speiser et al. 1992:chap. 10:1). Natural children are included under the statutory beneficiaries of most wrongful death statutes. The issue of beneficiary status may become complicated, however, when the deceased leaves behind one or more of the following heirs or next of kin: illegitimate children (those born out of lawful wedlock), posthumous children (children unborn at the time of the death of the father), adopted children of the deceased adoptive parent, natural children adopted by another before the death of a natural parent, stepchildren, grandchildren, and persons in loco parentis(persons who rear and support a child in place of the natural parents)—brothers, sisters, aunts, uncles, nephews, nieces, and unrelated persons, such as employers.

Which Court and What Law?

Which court has jurisdiction, what judge and jury will hear the trial, and which set of laws will be applied to any case of wrongful death can be very crucial in whether and what amount of recovery there will be for the victim and the survivors. The following is a brief overview of the issues and general principles that apply to jurisdictional, venue, and choice-of-law questions.

Jurisdiction

Jurisdiction is a complicated and multifaceted concept. For purposes of this chapter, however, we can simply refer to this subject as a state or governmental power to exercise judicial authority over a civil death case. Whether the case is filed in a state, federal, or territorial judicial court system, that court must have the legal authority—jurisdiction—over the parties and the subject matter involved in the death case. The jurisdictional rules for a wrongful death lawsuit are very similar to the rules applied in personal injury actions. Usually, the lawsuit for wrongful death may be brought where the death occurred or where a plaintiff or defendant resides or does business. The death statutes of a state where the death occurred are “public laws.” Therefore, a state cannot avoid its constitutional duty to enforce the rights created under the wrongful death/survivorship laws of sister states by removing jurisdiction from courts otherwise competent. Any local policy against actions for death not caused locally must yield to the unifying policy of the Article 4, § 1 of the U.S. Constitution (the “Full Faith and Credit Clause”), which requires maximum enforcement in each state of the rights and duties created or recognized by the statutes of other states. Because the federal courts are courts of limited jurisdiction, the facts necessary to establish federal jurisdiction must appear in the complaint itself. To establish “diversity of citizenship” in federal court in a death action, the citizenship of the beneficiaries is controlling (Speiser et al. 1992:chap. 11:2). A wrongful death action under the FTCA would, of course, be in federal district court.

Venue

The term venue is a French word that refers to proper place for the trial of a lawsuit. It differs from jurisdiction because within a state, federal district, or other jurisdictional area, the venue or courthouse where the judge and jury will decide the case could be placed in one of several locations. Generally, if there is no venue statute or court rule dealing with actions for wrongful death, and the particular case presents no circumstances to cause some other venue statute to come into play, then the statute or court rule governing personal injury actions will be followed. If, however, a special statute applies to wrongful death actions, proper venue will be in compliance with that statute. For example, if the lawsuit is properly filed in a state that requires the venue be in the county or judicial district where the plaintiff lives or the defendant does business or where the death occurred, the county/district court where the complaint was filed may still have to transfer the case for pretrial discovery and trial to another county according to the statutory requirements for proper venue (Speiser et al. 1992:chap. 11:2).

Choice of Law

Which wrongful death laws will be applied? This is what lawyers call a choice-of-law question. The traditional rule in tort law is called lex loci delicti, or the law of the place of the injury or death. This is the law that determines the existence and extent of liability and damages. It is the place where the alleged wrongful act took place or where the harmful act had its injurious consequences. The rights of both the victim and the wrongdoer are said to “vest” according to the law of the place of the injury.

However, the rigid application of the lex loci delicti rule often created harsh results that were contrary to the legal and equitable principles of the jurisdiction involved and the expectations of the parties. The early case Slater v. Mexican National R. Co. (1904) illustrates the harsh results that follow the place of harm rule. In Slater, a Texas switchman was killed in Mexico as a result of the negligence of his employer, a Colorado corporation that ran a railroad from Texas to Mexico The victim’s widow and children brought suit in federal court in Texas under diversity-of-citizenship jurisdiction. The Texas federal court eventually left them with no remedy, however. The U.S. Supreme Court held that the Mexican remedy of support and pensions during the “necessity” of the survivors or until the marriage of the widow was a remedy that was beyond the power of the federal courts to grant. The trial court tried to substitute common-law remedy of a lump sum monetary award of damages, but on appeal, the jury verdict and judgment was reversed and the action dismissed. This occurred despite the fact that Texas had its own wrongful death statute and no policy against enforcing liability for wrongful death arising in another jurisdiction. The Supreme Court strictly followed the “vested rights” doctrine of the lex loci delicti rule, which vested jurisdiction where the injury occurred for the exclusive power to determine and define all the incidents of legal liability (Speiser et al. 1992:chap. 11:2).

A majority of states have abandoned the lex loci delicti rule and have adopted the “most significant relationship” approach (Speiser et al. 1992:chap. 11:2). This rule in its basic form as it applies to personal injury or death actions states,

In an action for personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in Section 6 (Conflict of Laws) to the occurrence and the parties, in which event the local law of the other state will be applied. (Restatement [Second], Conflict of Laws 1977:§ 146).

The “factors” that a court following the Restatement’s test would use to reject the place of injury rule and that would be relevant to the choice of the applicable rule of law are

1. The needs of the interstate and international systems,
2. The relevant policies of the forum,
3. The relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
4. The protection of justified expectations,
5. The basic policies underlying the particular field of law,
6. Certainty, predictability and uniformity of result, and
7. Ease in the determination and application of the law to be applied. (Restatement [Second], Conflict of Laws 1977:§ 6).

Although the majority of states have abandoned the lex loci delicti rule in favor of the most significant relationship approach, a number of other esoteric choice-of-law theories are still followed, such as the “homologous law” theory, the “overwhelming interest” approach, and the “better rule of law” principle. Suffice to say that if a death occurs and the survivors, executor of the estate, and their legal advisers have an arguable choice between different laws that have a significant impact on the recovery of damages, this subject is one that requires expert legal research and analysis before the lawsuit is filed.

Conclusion

The matter of death and civil damages for death is very much subject to rules and laws peculiar to individual statutes and the case law that has interpreted the laws of the specific jurisdiction. In a very general sense, the recent laws and decisions over the past 100 years seem to be moving in the direction of allowing for recovery of intangible losses and for the protection and legal recognition of the grief and bereavement of survivors. As one authority on tort law has said,

Perhaps the largest group of death cases … involves pecuniary loss to survivors as the main element of damage, and in most jurisdictions this turns on contributions the beneficiary might have expected to receive if death had not intervened, with a reduction of all such future expected losses to present value. This necessarily involves a large element of speculation, turning on such matters as life expectancy, income, habits and health of the deceased, past contributions to his family, the probability of increased earnings and contributions in the future, and in some jurisdictions, the probability of future inflation. The difficulties of assessing such damages apparently were foreseen by the framers of the acts, most of which leave to the jury a wide range of discretion and authorize some resort to conjecture without demanding mathematical precision. Proof of death damages, however, has become increasingly complicated and there are many issues concerning such damages that are beyond the scope of this book. (Prosser 1984:953-54)

Beginning in the early 1980s, the American civil justice system and tort laws, including wrongful death laws, came under vigorous and vitriolic attack by so-called tort reformers. For the most part, the tort reform efforts were and continue to be funded and researched by insurance companies and big businesses who alleged that the costs of frivolous lawsuits, “jackpot jury verdicts,” and the liability insurance required by medical professionals, manufacturers, and other defendants to defend against such “litigation abuse” was out of control. Some of the special-interest rhetoric claimed that the rising cost of liability insurance was putting doctors out of business, keeping Girl Scouts from selling cookies, keeping school children from playing in school yards on weekends, and preventing various manufacturers, such as pharmaceutical and drug companies, from producing new and valuable products for the good of the consuming public. Unfortunately, for honest victims of neglect and recklessness, the public’s perception and reality often differ. Many of the “urban myths” spread by the media about abuses and excesses in the civil justice system are nothing more than distortions or fabrications (see www.StellaAwards.com; www.Snopes.com; www.atla.org/homepage/debunk.aspx). In response to publicity and pressure from private interests, various state legislatures passed new laws to limit tort recoveries or eliminate what some defendants and their lobbyists considered was unfair advantages allowed in the law to plaintiffs (Speiser et al. 1992:chap. 1:28).

Some of the “tort reform” measures that were passed had to do with the elimination or alteration of “joint and several liability.” That is, at common law if two or more defendants were each liable for conduct that was a legal cause of plaintiff’s injury or death, then the plaintiff had the option to proceed to collect the full assessed damages from any one or all the defendants. Some states eliminated or altered the “collateral source rule.” That is, any benefits paid for medical bills or other losses to the plaintiff are deducted from the amount of damages awarded, unless the benefits are from insurance that has a right to subrogate, and in some cases, the insurance premiums paid by the plaintiff can still be recovered as damages. More relevant to this discussion of civil remedies for death, it is important to recognize that some tort reform measures that have become law in some jurisdictions have the effect of limiting the amount of recovery for survivors and victims of wrongful death.

Some states have imposed arbitrary limitations or “caps” on noneconomic losses such as the loss of care, comfort, companionship, love, and affection, and on the mental anguish and grief and sorrow of the survivors, as well as the conscious fear, anxiety, pain, and suffering of the deceased prior to death. For example, Colorado has a “cap” of $250,000 unless the trial court finds evidence justifying a higher award, but in no case can the award exceed $500,000 (Colo. Rev. Stat. 1987); Hawaii limits noneconomic damages to $375,000 (Haw. Rev. Stat. 1988); Idaho has a $400,000 cap (Idaho Code 1990); Kansas has a $250,000 cap (Kan. Stat. Ann. 1989); and Oregon has a cap of $500,000 (Or. Rev. Stat. 1989) (Speiser et al. 1992:chap. 1:28).

Just as pain, suffering and noneconomic damages have come under the attack of tort reformers, so too has there been an attack on punitive damages. Many states not only changed the standard of proof from a preponderance of the evidence to clear and convincing evidence, but many have limited the dollar amount of punitive damage awards (Speiser et al. 1992:chap. 7:2).

As of 1935, 17 states limited the maximum recovery for wrongful death damages. Presently, except for those states that have passed statutory limits on nonpecuniary loss recovery, none of the 50 United States has any limits for damages for pecuniary loss caused by wrongful death (Speiser et al. 1992:chap. 7:2). Just as tort law has evolved in America to expand the available remedies for injuries to emotional interests, the vast majority of jurisdictions allow recovery for loss of companionship, society, or consortium suffered by the survivors of a wrongful death (Boston et al. 2002:chap. 6:20).

Deciding on a course of legal action to take after the death of a loved one may seem to some to be unsympathetic and calculating; however, the perishable rights, future needs, and well-being of the deceased’s family and survivors are very important and time-sensitive considerations. It is natural for the grieving process to take time and help from loved ones and close friends. The civil laws that may help replace, punish, and retrieve the wrongful loss of the decedent also take time and often have short time limits attached. The statutes of limitation within which a lawsuit must be filed or the tort claims notices required to be filed against known or suspected wrongdoers usually begin with the date of death. If too much time is lost due to inaction, ignorance, or bad advice, the legal rights of all survivors may be forever lost. Therefore, in a compassionate and expeditious manner, some regard must be given to the civil laws and methods of compensating for the wrongful death. As mentioned earlier in the section on jurisdiction and choice of law, whenever the family and survivors of a wrongful death come to entrust a lawyer with the legal advice for the estate and survivors, it is strongly recommended that the professional qualifications for and experience with the handling of a wrongful death case on the part of the lawyer be examined. The laws of neighboring states can vary drastically when applied to a death case. The litigation, trial, evaluation, and settlement of a wrongful death case are not the same legal procedures nor do they require the same professional competence and skills as the administrative process of probating the decedent’s will or administering the estate. The subject of wrongful death and the damages recoverable is an area of the law that requires more than a law school education and a license to practice law. The consumer of legal services is urged to consult with lawyers who have the specialized experience and expertise in litigating and actually trying wrongful death cases.