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Compensating Somebody: Wrongful Death and Survival Actions

Provisions of this type authorize damages to general classes of relatives likely to be closest to the decedent. If there are none in the closest class, the next group is considered, and so on. Like all efforts to deal generally with human relationships, these legislative classifications may miss the mark in particular cases. Mozart might be survived by a live-in lover to whom he was very close, and a son who had ignored him for 30 years. Under the Virginia statute, the son’s losses would be the measure of damages. Or, Mozart might leave no close relatives. Surely, the gravity of his death is just as profound in such a case, but under the South Carolina statute the only loss to be compensated in such a case would be the losses of remote heirs, who perhaps never saw or cared about Mozart and will consequently be unable to prove substantial damages. However, in most cases the beneficiaries named in the statutes-husbands and wives, children, parents and siblings-are the ones likely to suffer most from the death of the decedent.

Under many wrongful death statutes, the beneficiaries do not bring suit themselves. The executor or administrator of the estate is empowered to bring the action, but the damages are measured by the losses to the statutory beneficiaries and are distributed by the executor or administrator to them. Many statutes provide that the recovery does not become part of the decedent’s estate. See, e.g., Ala. Code Tit. 6-5-410(c); R.I. Gen. Law 10-7-10. The major consequence of this is that the recovery does not go to pay the decedent’s creditors. Even if the victim dies in debt, the wrongful death damages will go to the survivors the action is meant to compensate, rather than to pay the decedent’s debts.


The second thorny question is what losses of the survivors are compensable under wrongful death statutes. The death of a loved one entails many losses. Some are concrete and quantifiable, such as loss of financial support or household services rendered by the decedent. Others are intangible, such as the loss of companionship, sexual consortium, advice, and emotional support, the same types of losses which are compensated as “loss of consortium” when the victim survives. See Chapter 14, pp. 305-306. In addition to these long-term losses from the death of the decedent, the survivors also suffer tangible immediate losses (funeral and burial expenses) and intangible immediate losses (the grief and mental anguish of learning of the death).

Historically, many wrongful death statutes limited damages to the “pecuniary losses” resulting to the specified survivors, that is, direct financial contributions or services the decedent would have rendered to the survivors. The New Jersey wrongful death statute, for example, provides that the jury may give damages for “the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased….” N.J. Stats. §2A:31-5. The reason for this limitation is historical: Although Lord Campbell’s Act provided that the jury should award the statutory beneficiaries “such damages as they may think proportioned to the injury,” the Act was early held to authorize only pecuniary damages. Blake v. Midland, Ry. Co., 118 Eng. Rep. 35 (1852). Many of the American statutes either explicitly incorporated the “pecuniary loss” measure of damages (as the New Jersey statute does) or were initially interpreted to authorize only such damages. Under such statutes, damages for intangible losses such as loss of the society, sexual relationship, or advice and counsel of the decedent were not compensable.

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