Tuesday, September 15, 2009

Who has the right to recover for wrongful death?

There is something about the concept of a "wrongful death action" that has always troubled me. In most states the right to recover for wrongful death is limited to a specific person or to persons who fall in a very specific category. Some statutes limit the recovery to a "surviving spouse", others to the "next of kin", others to "heirs." And the claims often are mutually exclusive. The statute may say that the children of the deceased recover only if there's no surviving spouse, and the parents only recover if there is no spouse and no children, etc. What bothers me about this is this: an action for wrongful death is designed to provide a remedy for the loss someoone suffers when a person is killed because of another's negligence. Yet, given the language of many statutes it is not unusual that people who can make a very good case that they have suffered a loss do not have a right to recover. If the statute limits recovery to a surviving spouse and children, for example, the parents of the deceased simply don't have a right to recover anything. Can we really argue that parents don't suffer a loss when their child dies? I understand that we can't allow just anybody to try to recover -- there has to be a limit as to how far we extend the reach of possible liability; but I think the approach to wrongful death in many states is unduly restrictive. I am thinking of this topic today because I just read about a case pending before the Supreme Court of Georgia that exposes the problem. What appeared to be a straightforward wrongful death claim has turned out to be a very unfortunate situation for everyone involved. The case involves the death of 16 year old boy in a traffic accident. At the time, his girfried was pregnant with his daughter. After the boy's death, his parents filed a wrongful death action. However, after the girlfriend gave birth, she filed a claim on behalf of the child. And only one of the two claims can be valid. The claims are now "competing" against each other. In this case, the Court will have to decide who can recover the value of the loss caused by the death, even though I don't think it is difficult to argue that all the plaintiffs have suffered because of the death. Again, why should a daughter's claim exclude a claim by the parents? Go here for the full story.

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