Wrongful Death
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Wrongful Death

Wrongful Death

Torts is like a pirates treasure chest of theories; there are so many that are left undiscovered or rarely talked about.  Yes, we briefly cover them but then we quickly move on to the bigger theories like Duty, Causation, etc.  Wrongful death, Survival Actions, and Abatement are some of those little gems sitting in that treasure chest.  It is important to keep survival actions and wrongful death actions separated; they are not the same.

If you are confronting this issue in an essay you will generally be informed that there is a specific statute in the jurisdiction.  If you are not presented with a statute but the fact pattern arises the issue and you believe you can complete an accurate and pertinent argument, then discuss it!

Survival Action

Back in the day, old school Common Law style, if the victim or the tortfeasor died then the action died with them.  However, modernly and in a majority of jurisdictions, there are now statutes called survival statutes that have changed this.  These statutes allow for the action to continue where under Common Law they would have terminated.

In order to properly do an analysis on a survival action you have to look to the type of injury suffered and the damages that are recoverable.  A majority of jurisdictions allow for survival actions where the damage suffered is personal injury and a minority of jurisdictions allow survival actions where there is only property damage.  Less than a minority, a very small amount of jurisdictions, allow for survival actions when the injury is to the reputation; think defamation and privacy interests.

The damages that are recoverable under survival actions vary as well as the damage requirements above.  Some jurisdictions don’t allow for recovery of pain and suffering of the victim if the victim dies before judgement. And most jurisdictions do not permit recovery of punitive damages against the tortfeasor who dies before judgement.

Wrongful Death

All jurisdictions have statutes which allow heirs of a deceased victim or personal representative of the victim to bring action against a tortfeasor responsible for the victims death.  Recovery is generally limited to pecuniary losses resulting from the death; think lost wages the victim may have earned over his lifetime, medical expenses, lost wages, etc.

Let’s do some practice!

Daniel owned a restored “classic” automobile made in 1922. To discourage tampering with the car, Daniel installed an electrical device designed to give a mild shock, enough to warn but not to harm persons touching the car. Paul, a heart patient with a pacemaker, saw Daniel’s car and attempted to open the door. Paul received a mild shock which would not have harmed an ordinary individual but which caused his pacemaker to malfunction, resulting in a fatal heart attack.

If Paul’s estate asserts a claim against Daniel for the wrongful death of Paul, will the estate prevail?

(A) No, if Daniel was not using excessive force to protect his car.

(B) No, because Paul was a trespasser.

(C) Yes, because Daniel’s act was a substantial factor in causing Paul’s death.

(D) Yes, if Paul had no reason to suspect the presence of the electrical device.


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