Whenever an individual is killed as a result of the wrongful or negligent conduct of another party, the family of the decedent is entitled to sue for compensation from the responsible party or entity. To bring a wrongful death claim in California, here are 5 important things to understand:
Under California’s Code of Civil Procedure § 377.60, there are certain persons who have standing or the ability to bring a wrongful death claim on behalf of themselves as distinguished from a survival action that can be brought on behalf of the decedent’s estate. Under this code section, the following persons may sue for damages in such cases:
- The surviving spouse
- Children or issue of the decedent
- Dependent minors who have lived in the decedent’s home for at least 6-months
- The putative spouse
- Children of the putative spouse if financially dependent on the decedent
- Step-children of the deceased if they can demonstrate financial dependence on the decedent
- Parents if they can demonstrate economic reliance or dependence on the decedent
- If no surviving spouse or issue, then anyone who would be entitled to the property of the decedent by intestate succession
The statute does include individuals of certified domestic partnerships but since same-sex marriage was legalized in California in 20081 and later declared valid in all states2, this designation may no longer be applicable unless an individual in a registered domestic partnership never married their partner. Civil unions contracted in a state that did not recognize them are not recognized as marriages in California.
In other words, if you were a same-sex partner and you never married the decedent either in California or in another state that recognized such marriages before Obergefell, then you lack standing to sue unless you were previously in a contractual domestic partnership formed in California or other state that recognized such arrangements.
A putative spouse is one who was married to the decedent but the marriage was later declared void or voidable. However, it is valid for standing purposes in a wrongful death action if a court determined that the marriage was nevertheless entered into in good faith or you had a reasonable belief that the marriage was valid.
A void marriage is one where the marriage was never valid. A bigamous marriage, where one party is legally married to a person still alive, is void unless the former spouse is believed to be dead or has been missing for 5-years, or the former relationship was annulled before the date of the subsequent marriage3. Incestuous marriages are never valid4.
Voidable marriages will become valid unless a court declares the marriage to be void. An example is a spouse who was not of the age of consent when married (18-years of age in California) unless the parties freely cohabitated after the individual attains the age of consent. However, you could still have standing to sue in a voidable marriage provided a court determined you had a good faith belief that the person you were marrying was of legal age, sound mind, was not coerced into the marriage, or was not your close relative.
If you merely lived with the decedent and were in an intimate relationship but are not a close relative, this does not give you standing to sue for wrongful death. Unborn children of the decedent who are born after the decedent’s death do have standing.
There are numerous situations upon which wrongful death claims may be brought:
- Motor vehicle accidents (car, truck and motorcycle)
- Pedestrian accidents
- Premises liability
- Dog or other animal attacks
- Medical malpractice
- Construction accidents
- Workplace accidents
- Defective products
- Defective drugs
- Criminal negligence
- Railroad accidents
- Manufacturing accidents
- Exposure to toxic chemicals
- Tobacco use as substantial factor leading to death
In all of these cases, the responsible party or entity must have owed a duty of care to the decedent. For instance, all motorists must exercise reasonable care when driving, which means obeying the traffic laws, and being on the lookout for pedestrians. You breach that duty of care when a violation of a traffic law or your failure to use reasonable care results in someone else’s injury or death. This includes speeding, making an unsafe turn, driving recklessly, or not being attentive to driving.
Product and drug manufacturers have a duty to manufacture products that are safe for consumers when used as intended and to sufficiently warn consumers of hazards and risks that they know or should have known about their products. Also, it must have been foreseeable that the use of the product when used as intended would likely lead to a fatal injury. Examples are a drug company that failed to disclose that drug tests showed a high risk of heart attacks or strokes when using their product, or that a medical device would leak and cause severe infections with a high fatality rate.
In intentional tort matters such as decedent who was killed in a robbery -penal code 211 pc or other incident by the willful act of another person who intended to either kill the decedent or cause serious bodily harm, then the parties with standing may sue that person in a civil court for damages.
There are cases where prolonged exposure to certain chemicals can cause fatal conditions decades later. Numerous people who worked around asbestos years ago contracted a condition known as mesothelioma, or a form of lung cancer, in which symptoms did not manifest for several decades after the last exposure. Courts have allowed such suits to be prosecuted and many such persons or their surviving family members have settled or received jury verdicts for millions of dollars from companies that used asbestos in their products because they never warned its employees or took sufficient precautions to minimize their exposure despite knowledge that exposure was toxic.
When suing for compensation in any personal injury case, including wrongful death, the surviving family member may sue for his or her economic losses. This includes out-of-pocket expenses related to the decedent’s passing as well as the family member’s financial dependence on the decedent. Dependents include children and spouses of the decedent as well as parents in some cases.
Economic damages in a wrongful death claim include:
- Medical expenses incurred before the decedent succumbed to injuries or illness
- Lost income that the decedent would have earned and contributed to his family (retirement or pension plan, medical coverage, etc.)
- Loss of benefits or gifts the decedent would have provided
- Funeral and burial costs
- Loss of an inheritance cut short by the decedent’s passing
- Value of the goods and services the decedent would have provided
If the decedent died instantly, then any medical expenses might be limited to ambulance costs. In the case of a person suffering from mesothelioma from prolonged exposure to a toxic substance, medical expenses may be in the hundreds of thousands of dollars from years of taking medications and treatments. The award of any future damages is reduced to present cash value by the economist.
Regarding loss of income and benefits and of the value of goods and services the decedent would have provided, a forensic economist is typically used. For instance, the economist can evaluate the following damages depending on the decedent’s age, employment, and income potential:
- Loss of future earning capacity from current employment based on annually adjusted earnings
- Value of pension lost, net loss to spouse of incremental Social Security benefit above survivor’s benefit
- Age-earnings profile of an infant or student by educational attainment level and projected alternative loss of future earnings
- Value of past and future household services (cooking, cleaning, childcare, shopping, home repairs, landscaping, transportation)
Most states place limits or caps on certain cases or for suits against the state or a municipality. California has a cap of $250,000 for non-economic damages in medical malpractice cases but no cap on economic losses5. There is no limit on damages for lawsuits against the state of California.
Non-economic damages usually refer to pain and suffering but such damages are not recoverable in a wrongful death case in California. There are other forms of non-economic damages that are recoverable in a wrongful death claim:
- Loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support
- The loss of enjoyment of sexual relations (loss of consortium)
Heirs of a decedent pursuing a wrongful death claim cannot seek punitive damages, although it is permitted in survival actions or wrongful death claims brought on behalf of the decedent’s estate6. This is regardless of how egregious the defendant’s conduct may have been. Punitive damages are designed to punish and deter such behavior.
To prove non-economic loss, your personal injury lawyer will need evidence of the character of the decedent, what life was like with the decedent and how those plaintiffs seeking damages had their lives affected by the decedent’s death. Plaintiffs may give testamentary evidence of the decedent’s love and affection for them, how the decedent would console or advise them in times of distress, would come to their aid if ill or suffering emotional trauma, would teach them certain skills (social or practical), and how the decedent lead by example or was a role model7.
Loss of sexual relations is also part of non-economic damages and included with damages for loss of love, affection, guidance, etc.8.
There is no separate claim for loss of consortium in a wrongful death claim. Similarly, heirs, regardless of how close or intimate they were with the decedent, cannot assert damages for their own grief, sorrow or pain and suffering9.
In many wrongful death claims, there may be two simultaneous actions. One is brought by the heirs on behalf of themselves and the other is brought on behalf of the decedent’s estate. The latter claim is called a survival action or lawsuit10. These actions can be combined into a single lawsuit11.
Survival actions are brought by the personal representative of the decedent’s estate and are only applicable if the decedent survived for any period of time after sustaining his or her injuries. Damages that may be recovered in a survival claim or lawsuit include:
- Medical expenses incurred following the injury and prior to death
- Lost earnings or wages by the decedent during his or her working life
- Punitive or exemplary damages
Punitive damages may be sought in a survival action if the personal representative is able to demonstrate that the defendant’s conduct was willful and wanton and amounted to malice12. A plaintiff must prove by clear and convincing evidence that “…the defendant was aware of the probable dangerous consequences of his conduct and that he willfully and deliberately failed to avoid those consequences13.
Damages are limited in survival actions and are generally only brought if there is a cause of action for punitive damages and provided the decedent survived for a time following the accident or illness that proved fatal. Further, any pain and suffering sustained by the decedent prior to death is not compensable.
However, the Elder Abuse Act does allow for pre-death pain and suffering in a survival action brought by the personal representative or the successor-in-interest to the decedent’s cause of action14. A successor-in-interest is a person entitled to inherit from the decedent’s estate in situations where no personal representative has been appointed. This may include the decedent’s surviving spouse, domestic partner, surviving children, or if none of these persons exist, then anyone else entitled under the laws of intestate succession.
To recover damages, it must be proven by clear and convincing evidence that a defendant was liable for physical abuse as defined in Welfare and Institutions Code § 15610.63 or neglect as defined in Welfare and Institutions Code § 15610.57, and the defendant has been found liable or guilty of fraud, oppression, recklessness or malice in the commission of the abuse15.
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- Hollingsworth v. Perry (2013) 133 S.Ct. 2652 [↩]
- Obergefell v. Hodges (2015) 135 S.Ct. 2584 [↩]
- Family Code § 2201 [↩]
- Family Code § 2200 and 2201 [↩]
- Medical Injury Compensation Reform Act of 1975 [↩]
- Ford Motor Company v. Superior Court (1981) 120 Cal.App.3d 748, 751 [↩]
- Civil Code § 1431.2(b)(2); Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 633 [↩]
- Allen v. Toledo (1980) 109 Cal.App.3d 415 [↩]
- Krouse v. Graham (1977) 19 Cal.3d. 59 [↩]
- Code of Civil Procedure § 377.30 [↩]
- Code of Civil Procedure § 377.62 [↩]
- Civil Code § 3294 [↩]
- Taylor v. Superior Court (1979) 24 Cal.3d. 890, 896 [↩]
- Welfare and Institutions Code § 15657 [↩]
- Welfare and Institutions Code § 15657, subds. (a) and (b). [↩]