Some Legal Anatomy: Thinking Like a Tort Lawyer

5.   Booth also inquires as to the claims he may assert on his own behalf as a result of the accident.

a.   What would you advise Booth as to the elements of damages for his own physical injuries?

b.   What would you advise Booth as to his right to assert claims for loss of consortium?

c.   What would you advise Booth concerning other claims he might have?

6.   Booth brings John with him. John is also interested in asserting claims against Burton’s estate. What claims may he have, and what problems do you anticipate in recovering on them?

7.   A week after your interview with Booth and John, Lydia comes in to inquire about possible claims against Burton. What claims may she have, and what problems do you anticipate in recovering on them?

Supporting Actors

8.   Next to come in is Garrick, Isadora’s costar in the opera. What would you advise him as to his rights against Burton arising from the accident?

Putting the Show on the Road

9.   Draft a complaint seeking relief on behalf of Isadora’s estate, Booth, John, and Lydia. Assume that the West Dakota law allows both survival and wrongful death claims and recognizes fetal wrongful death claims, but has not yet addressed claims for loss of consortium on behalf of parents or children. Assume also that it is unclear what the standards are in West Dakota to state an adequate claim for negligent infliction of emotional distress.

Explanations

Setting the Stage

10. 1. a.   The right to recover for Isadora’s injuries depends on the applicable survival and wrongful death statutes, which vary from state to state. Thus, you might advise Booth, as lawyers frequently do, that you don’t know whether suit can be brought, but will find out. However, if you were an experienced West Dakota practitioner, you would probably be familiar with the local law on these issues.As Chapter 19 explains, virtually all states have modified the common law doctrine denying recovery for wrongful death. Here, for example, West Dakota’s wrongful death statute authorizes recovery of pecuniary and consortium damages suffered by Isadora’s survivors as a result of her death and the survival statute authorizes Booth, as Isadora’s executor, to recover for predeath losses Isadora suffered as a result of the accident.

2. b.   The question here is whether Isadora’s claims “survive” the death of Burton, the tortfeasor. Most states now provide by statute that tort claims survive the tortfeasor’s death and may be brought against the tortfeasor’s estate. This is true regardless of the cause of the tortfeasor’s death. Thus, it makes no difference here that the cause of Burton’s death was unrelated to the accident.