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Compensating Somebody: Wrongful Death and Survival Actions

N.D. Cent. Code §32-21-01.[1] Statutes like this allow recovery for wrongful death if the decedent would have had a cause of action herself had she been injured instead of killed. Thus, an “action for wrongful death” is not a separate tort in itself, it is an action for a recognized tort-such as battery, negligence, or a products liability claim-in which the victim is killed rather than injured. In a wrongful death claim based on negligence, for example, the plaintiff must prove the same elements as in a personal injury negligence claim: duty, breach, causation, and damages. The proof of the first three elements will be the same as in an injury case. The major difference between a wrongful death case and other negligence cases involves the last element, damages.


Damages in personal injury cases compensate the injured person herself for the losses resulting from the accident, such as medical expenses, lost wages, or pain and suffering. Wrongful death statutes, however, do not compensate the decedent herself; it is obviously impossible to compensate the decedent for anything. The best the law can do is to compensate survivors who were close to the decedent for the losses they suffer as a result of the decedent’s death. Thus, wrongful death statutes authorize damages for the economic or emotional losses to the survivors of the decedent, not the loss suffered by the decedent herself.

Assessing the damages to the survivors raises two thorny questions: Which survivors, and for what losses? As to the first question, most wrongful death statutes limit the recovery to the losses suffered by close relatives as a result of the decedent’s death. For example, the Virginia statute provided until 1992[2] that the recovery is for the benefit of

(i) the surviving spouse, children of the deceased and children of any deceased child of the deceased or (ii) if there be none such, then to the parents, brothers and sisters of the deceased…or (iii) if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents.

Va. Code §8.01-53. South Carolina’s statute is a little different:

Every such action shall be for the benefit of the wife or husband and child or children of the person whose death shall have been so caused, and, if there be no such wife, husband, child or children, then for the benefit of the parent or parents, and if there be none such, then for the benefit of the heirs of the person whose death shall have been so caused….

S.C. Code §15-51-20.

[1] [ft] The North Dakota statute, in language taken verbatim from Lord Campbell’s Act, makes the tortfeasor liable “although the death shall have been caused under such circumstances as amount in law to felony.” Although the felony merger doctrine never applied in the American states, this irrelevant clause repudiating the doctrine was copied into many American wrongful death statutes.
[2] [ft] The statute was amended in 1992. This is the pre-1992 version, used for illustration purposes. The current version is discussed in the analysis of Example 3

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