Wrongful Death
 
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In California only certain persons can file a wrongful death suit on behalf of the decedent. Since an action for wrongful death is governed solely by statute, the right to bring the action is limited only to those persons described by the Legislature in Code Civ. Proc., § 377.60. Generally, this is limited to the decedent's surviving spouse, children, and issue of deceased children (grandchildren), but there are exceptions if none exist. Cal Code Civ Proc § 377.60. Under California's statute of limitations, a plaintiff must bring a cause of action for wrongful death within two years of the date of death. However, if the plaintiff is blamelessly ignorant of his cause of action, the date of accrual of a wrongful death cause of action is the date on which the plaintiff comes at least to suspect, or have reason to suspect, a factual basis for a claim of wrongful death. Norgart v Upjohn Co. (1999) 21 Cal 4th 383, 404, 87 Cal Rptr 2d 453, 981 P2d 79. If an heir or beneficiary is comparatively negligent for the decedent's death, negligence of an heir will merely be a ground for reduction of his damages.
Damages in wrongful death cases is intended to compensate for losses resulting from the death of a family member. Some losses are measurable, such as a widow seeking to recover the financial support that she would have received had her spouse lived, while most other damages are more general in nature. Types of recoverable damages include:
- Direct Expenses- medical bills and funeral cost.
- Loss of Benefits- what the person could have received in pension/retirement benefits had they lived.
- Loss of Future Earnings- what the person who died would have earned in salary if he or she had lived.
- Loss of Companionship- what the person who died would have emotionally provided to a relationship, and the mental pain and suffering resulting from the decedent’s death.
- Punitive Damages- what amount the defendant should be punished for his or her action resulting in the victim’s death.
California law provides that you may recover damages to the extent a court finds just. Cal Code Civ Proc § 377.61. The award you are entitled to recover, however, cannot include 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 cannot include damages for pain, suffering, or disfigurement. Cal Code Civ Proc § 377.61& Cal Code Civ Proc § 377.34
Calculating damages is a complex process involving multiple factors. Some factors include (1) how dependent the plaintiff was on the decedent; (2) the nature of the relationship with the decedent; (3) the anticipated lifespan of the decedent, (4) the anticipated earnings and other benefits of the decedent, and (5) the presence of any comparitive fault. Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to put a price tag on the emotional loss you suffered from the decedent death.
Probably the most important factor in a wrongful death damage calculation is estimating the expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she lived. Therefore, it is common to take the victim’s earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings. Most of the time, calculations can get very complicated because factors that may increase or decrease the number of years the decedent would have been expected to live are included.
All these factors are combined in a life expectancy table that is used to calculate future losses. Courts will often reduce the total estimated future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollar value. The purpose for using present value is that a successful plaintiff will receive a sum that if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise if it is conservatively invested.
There are defenses to wrongful death claims which may limit or even deny your recovery. The first is the statute of limitation mentioned above. Other available defenses are limited to those that could have been made against the decedent had he lived and brought his/her own claim for personal injuries. The two most common defenses are causation, and comparative negligence.
In order to hold a defendant responsible for wrongful death, you must prove that the defendant’s conduct was the cause of the decedent’s death. To satisfy this requirement, you do not have to show that the defendant was the only responsible party. You must only show a connection between the defendant’s conduct and the injury, such that the injury would not have occurred without the defendant’s actions. The time period between the fault and death does not matter either. So if a decedent died due to injuries he recieved in an accident three months ago, the negligent wrongdoer is still liable. However, the continuous causal connection between the fault and the injury is the most important element necessary to prove causation in a wrongful death suit. This means that the accident three months ago must have caused the death, not the decedent's failure to obtain medical help. If there is no causal connection, the defendant will not be found responsible.
Comparative negligence is conduct by the decedent that contributed to his death. If a decedent is comparatively negligent, the amount of any damages awarded may be reduced by the percentage of fault assigned to the decedent. American Motorcycle Assn. v. Superior Court (1978) 20 Cal. 3d 578, 598 [146 Cal. Rptr. 182, 578 P.2d 899]; Li v. Yellow Cab Co. (1975) 13 Cal. 3d 804, 809-813 [119 Cal. Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].) The defense of comparative negligence, however, is a fact for the jury to consider and it generally cannot be determined until after a case begins.
In all matters involving wrongful death it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations. If a loved one has been a victim of wrongful death, call Blackman Legal Group now at 1-800-444-5602 or CLICK HERE TO SUBMIT YOUR QUESTIONNAIRE FOR A FREE CASE EVALUATION. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.