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Wrongful Death and Recoverable Damages

Wrongful death actions occur when someone is killed by another person’s negligence or misconduct.  In California, the cause of action for wrongful death is a statutory remedy.  (C.C.P. § 377.60.)  C.C.P. § 377.61 defines the types of damages which may be recoverable in a wrongful death action.  Damages in a wrongful death action are measured by the situation existing at the time of the act.  (McLaughlin v. United Railroads of San Francisco (1915) 169 Cal. 494.)  Compensable damages in a wrongful death action include 1) loss of contributions and services, 2) loss of society, comfort and protection, 3) funeral and medical expenses, and 4) grief and suffering.

The probable value of the decedent’s life, and the corresponding pecuniary loss from the decedent’s death, is considered when determining the damages award.  (Dickinson v. Southern Pac. Co. (1916) 172 Cal. 727.)  Courts will look at the decedent’s earnings, the life expectancy of the decedent, and other elements from his death when calculating damages.

California case law holds damages may also be recovered for the loss of the decedent’s society, comfort and protection, (Bond v. United Railroad (1911) 159 Cal. 270, 286), though only the pecuniary value of these losses was held to be a proper element of recovery. Other cases have held admissible such evidence as the closeness of the family unit (Griott v. Gamblin (1961) 194 Cal.App.2d 577, 578–579), the warmth of feeling between family members (Benwell v. Dean (1967) 249 Cal.App.2d 345, 349), and the character of the deceased as “kind and attentive” or “kind and loving.” (Cook v. Clay Street Hill R.R. Co. (1882) 60 Cal. 604, 609.)

There are multiple scenarios in a wrongful death action which can affect the recovery of damages.  These include the death of a spouse and parent, the death of a minor child, the death of an adult child, and the death of another relative.  This article will specifically address the damages recoverable for the death of an adult child.

In an action by a parent for the death of an adult child, substantial damages are recoverable only by showing the decedent had been of actual pecuniary benefit to the parent or such benefit might have reasonably been expected from the continuance of the child’s life.  The court looks at the facts and evidence to determine the reasonableness of this

 

expectation, including the age of the decedent, the decedent’s wages, habits of economy, and amount of help given to the parent.  (Parsons v. Easton (1921) 184 Cal.764.)  It is not necessary, however, to show the child had ever done anything for the parent, especially since the child’s failure to do so might have been due to the absence of the parent’s needs for any contributions from the child.  (Id.)  Parents have been allowed damages for loss of financial security on the theory that ill health or old age might eventually have forced them to rely on the child for financial help.  (Ure v. Maggio Bros. Co. (1938) 24 Cal.App.2d 490, 495.)

An award for future earnings is also a proper component of pecuniary damages for wrongful death.  The wrongful death plaintiff may recover lost present and future economic support as well as the pecuniary (as opposed to sentimental) value of such factors as lost comfort, society, companionship, care, and protection.  However, the court must reduce the noneconomic damages to present cash value.  (In re Air Crash Disaster Near Cerritos, Cal., On Aug. 31, 1986, 982 F.2d 1271 (9th Cir. 1992).) The jury is entitled to consider the loss of society and comfort suffered, and there is no fixed standard by which a reviewing court can measure the value of these elements of damage.

Where the deceased was an adult child, the court may also consider loss of society, comfort and protection when determining the recoverable damages.  (Lasater v. Oakland Scavenger Co. (1945) 71 Cal. App. 2d 217.)  Damages for wrongful death are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society, and protection.

Damages are limited to the pecuniary loss suffered by the person bringing the wrongful death action.  (Corder v. Corder (2007) 41 Cal.4th 644.)  Thus, damages for lost value of economic contributions, personal service, advice, or training that would probably have been given, and society, comfort, care, protection, and companionship must be monetarily quantified.  The pecuniary value of the society, comfort, and protection that is lost through the wrongful death of a child may be considerable in cases where, for instance, the decedent had demonstrated a “kindly demeanor” toward the statutory beneficiary and rendered assistance or “kindly offices” to that person.  (Beeson v. Green Mountain G.M. Co. (1880) 57 Cal. 20, 38.)

As discussed above, wrongful death damages are generally financial, or pecuniary, in nature.  However, because wrongful death damages differ from state to state, it is important to understand the laws and procedures specific to each state.

ABOUT THE AUTHOR

Kelly Denham graduated from Loyola Law School in 2012. Ms. Denham’s primary focus at Tyson & Mendes is construction defect litigation. Contact Kelly at 858.263.4117 or kdenham@tysonmendes.com.

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