Under California Code of Civil Procedure §377.60, a wrongful death lawsuit may be filed by the personal representative of the deceased’s estate, or by the decedent’s surviving spouse, children or other dependent family members. The damages that are recoverable according to statute are, “under all the circumstances of the case, [such damages as] may be just, but may not include damages recoverable under Section 377.35 [the Survival Statute].” The Courts have interpreted the wrongful death statute to mean that the family can ask for compensation due to loss of support, loss of services, funeral and burial expenses, loss of companionship and sexual cohabitation. However, it is important to note that punitive damages are not recoverable under the wrongful death statute.
A survival cause of action can be filed by the estate’s personal representative, or if none has been appointed, by the decedent’s successor-in-interest. A survival cause of action can only be brought if the decedent did not immediately die from his injuries. However, if the deceased lived for even a short time between the accident and his or her death, then a survival cause of action may be appropriate. Under California Code of Civil Procedure §377.30, 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. In the typical survivor action, the damages recoverable by a personal representative or successor in interest on a decedent’s cause of action are limited by statute.
There are special laws in place that govern this type of legal claim. California law recognizes that parents are entitled to certain damages when a child has died. There are some people who believe the thought of a parent requesting monetary compensation for the loss of their child is offensive. It is clear that no amount of monetary compensation will make of for the tragedy of losing a child. However, California law, under the Code of Civil Procedure Section 377.60 (b), does recognize the basis for this type of legal claim and gives a parent of a child the legal right to pursue the responsible party who caused the death of their child in court. The legal action plays an important part in having the negligent party take responsibility for the tragic harm, and it may also aid in preventing any similar harms from happening to others in the future. The legal action may also serve parents in the grieving process by helping them bring closure to the sad events.
Claims made under Code Civ. Proc.Sec. 377.60 have a two-year statute of limitations as provided under Code Civ. Proc. Sec. 335.1, which begins to run on the date of death. (Witkin, 6 Summary of California L., Torts Sec.1198 (9th ed.).) But in a survival action, the statute of limitations starts running on the date the claim actually arose to the deceased, and is sometimes lengthened. (See e.g., Witkin, 12 Summary of California L., Wills and Probate Sec. 491 (9th ed.); see also Code Civ. Proc. Sec. 366.1 (which provides the time limits for the action.)
Only certain people are allowed to file a wrongful death lawsuit in California. The relevant statute specifically allows the following parties to bring a wrongful death claim:
And, if they can show they were financially dependent on the deceased person, the following people can also bring a wrongful death lawsuit in California:
The standard of proof in the United States is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. Because proving a case beyond a preponderance of the evidence (slight tipping of scales) is usually easier than a criminal prosecution (beyond a reasonable doubt), most wrongful death cases are handled in the civil court system.
There is no cap on economic damages in California. Accordingly, in the example above where the woman supports two children, the children would be entitled to recover for the loss of the comforts, education, and position in society which they would have enjoyed if their mother/wife had lived and retained her income and they had continued to form part of the family.
Practically, this means they are also entitled to;
A future lost earnings award is allowed for earnings “reasonably certain” to result from the injury and are awarded by the jury in a lump sum. The amount of lost earnings awarded must be based upon present value and not upon speculation about inflation or other unknown factors impacting earning potential. But, obviously, the computation of future lost earnings is not exact and to some degree it invariably requires speculation about the decedent’s life expectancy and expected work experience.
When there is a death of an adult caused by the negligence of another, there are certain non-economic damages that the spouse of the decedent may seek to recovery:
These damages include the following:
You might be thinking, how is it that a number can be placed on these items and many times it comes down to how much of the above were provided by the Decedent. The better the quality of the relationship between the two, it is likely that the jury will award more for the items that the decedent’s spouse will never be privy to again.
Recovery for a minor child is similar but varies just a little. The following are items both Economic and Non-Economic that are recoverable by the parent for the death of a minor child. Recovery of Economic Damages include:
Non-Economic Damages that a parent may recover for the death of a minor child include the following: The loss of the minor child’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.