Part II: How Much Is My Case...

Damages Recoverable in a Wrongful Death Case

When someone is killed because of another person’s carelessness (negligence) or deliberate misconduct, this is called a “wrongful death.” For instance, if a person is killed in an automobile accident caused by another motorist who ignored a stop sign, we call that a wrongful death since the death was caused by another person’s carelessness.

Who Can Sue For The Wrongful Death of Another?

The wrongful death of a person often affects many other people: a spouse, children, grandchildren, employers, friends, and so forth, but only certain persons are entitled to sue the wrongdoer for specified damages. If a 35-year-old married man with three children is killed in an automobile accident caused by another driver’s negligence, the spouse (widow) and his three children (the survivors) can all sue the negligent driver. If the man was supporting someone else, such as his elderly parents or a minor under 18, they can also sue to recover their monetary losses, i.e., the money they reasonably could have expected to receive from the deceased person had he not been killed.

What Types of Damages Can the Survivors Sue For?

In a wrongful death jury trial in California, it is the jury who will ultimately decide how much money will reasonably compensate the survivor for the loss of the decedent. This compensation is called “damages.”

The monetary damages that the jury may award the survivors in a successful wrongful death lawsuit are those that “under all the circumstances of the case, may be just.” The survivors are entitled to sue for any and all medical expenses that may have been incurred in attempting to save the victim’s life, if such damages have not been recovered in a “survival action.” The survivors are also entitled to sue for the lost wages and earnings that the decedent would have contributed to the household during his working years, taking into account raises, bonuses, promotions, and any other types of compensation he would have received from his employer.

Suppose that instead of a 35-year-old working man, the person who was killed was the stay-at-home wife/mother. Since she wasn’t working at a paying job, can the survivors seek compensation for “lost earnings?” In the case of a non-working spouse who stays at home and takes care of the children and house, the surviving spouse and children are entitled to receive full and adequate compensation for the loss of services the decedent would have contributed to the household. Studies show that it would cost in the area of $100,000 to hire persons to take the full place of the deceased parent or spouse. For example, who would make the family’s meals, get the children ready for school, go shopping for groceries and clothes, do the laundry, prepare the meals, take the kids to dance rehearsals or Boy Scout meetings, etc.?

Although each heir’s loss will be different from the others, only one wrongful death lawsuit may be filed. The heir filing the lawsuit must include all of the other heirs entitled to a share of the estate. For instance, if a woman died leaving a husband and three children, if one of the children files a wrongful death action, she must list the decedent’s husband and other two children as claimants (“plaintiffs”) as well.

One issue with wrongful death cases involving more than one plaintiff is the division of the settlement or award. The jury (or judge, if the trial is by court) must compute the damages by considering the pecuniary loss suffered to all of the heirs and return a verdict for one lump sum. It is then up to the judge to divide the total amount of damages among the individual plaintiffs.

In making her determination as to how much to award each individual plaintiff, the judge will consider such things as the closeness of decedent and the heir, the nature of their relationship, how long they had known each other, the amount of support the decedent was providing for the heir, and other factors.

Evidence that the decedent was unhappy in his marriage and told others that he planned on getting a divorce from his wife does not defeat the wife’s claim for damages resulting from her husband’s death if no legal action had been taken by the deceased husband, such as obtaining a legal separation or filing for divorce, as couples frequently have disagreements or hard times that make them reassess whether it is worth staying in their marriage. Indeed, even the most happily married couples occasionally have spats in which one threatens to get a divorce. While evidence of a statement that a married person did not get along with his spouse and was going to get a divorce does not bar the other spouse from receiving a share of the wrongful death settlement or award, it may reduce the surviving spouse’s share if it bears on the nature and closeness of their relationship.

In California, if a wrongful death case involving multiple plaintiffs is settled out of court and the parties are unable to agree among themselves as to the division of the award, they will have to file an action in court and have a hearing before a judge who will make the ultimate determination as to the settlement’s allocation among the heirs. Alternatively, the heirs may agree to have the issue of the division of the settlement proceeds settled out of courts, such as by binding arbitration.

Among the damages recoverable in a wrongful death action in California are economic damages and non-economic damages.

Economic Damages in a Wrongful Death Action:

  • Financial support that the decedent would have contributed to the family during the life expectancy of the decedent
  • The loss of gifts or benefits
  • Funeral and burial expenses
  • Reasonable value of household services

Non-Economic Damages in a Wrongful Death Action:

  • Loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support
  • Loss of enjoyment of sexual relations (if applicable)
  • Loss of training and guidance

The following cannot be considered by a jury when determining loss:

  • Grief, sorrow, or mental anguish
  • Pain and suffering
  • Poverty or wealth of the plaintiff

Survival Actions

In California, a survival cause of action can be filed by the estate’s personal representative or the decedent’s successor-in-interest. A survival cause of action can only be brought if the decedent did not immediately die from his or her injuries. A wrongful death survival action may be appropriate even if the deceased lived for a short time after the incident.

Damages recoverable under the statute include “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.”

Essentially, the survival statute allows one to “step into the shoes” of the deceased and recover the damages the deceased person would have been entitled to had they lived, including medical expenses and lost wages, as well as penalties or punitive or exemplary damages. One cannot recover damages for pain, suffering, or disfigurement in a survival action.