The importance of understanding the difference between a wrongful death claim and a survival statute claim

 Day on Torts is reporting (here) on a recent case in Tennessee that reminds us of the importance of the difference between a wrongful death claim and a claim under a survival statute.  And what is that difference?  In a nutshell, the recovery in a wrongful death claim goes to the beneficiary as defined in the wrongful death statute, which is usually the decedent's surviving spouse; but the recovery in a claim under the survival statute goes to the decedent's estate.  This means that in a case under the survival statute, it is possible the surviving spouse will get a much more reduced recovery - or none at all.

In this new case, called Sanders v. Higgins (available here), the plaintiff was the surviving spouse of someone who died in an accident. Plaintiff brought a claim against the decedent’s insurance company alleging misrepresentation and negligence.  The parties reached a settlement on the negligence claims, and the trial court ordered disbursement of the settlement proceeds to plaintiff as surviving spouse but the decedent’s estate appealed arguing that the proceeds should have been distributed to the estate. On appeal, the court of appeals agreed with the estate and reversed.

Article on changes to the law in Tennessee on whether the law recognizes a wrongful death action for the death of an unborn fetus

 Over the years, I have posted comments and updates on whether the law recognizes (or should recognize) a wrongful death claim for the death of a stillborn fetus, or even for the loss of a pregnancy at any point in the pregnancy.  Go here for all the stories on "pre-natal torts."  

I am writing about this today because a few days ago I saw a short article on the state of the law in Tennessee which changed recently.  You can read the article here.

Tennessee Supreme Court Upholds Constitutionality of Damage Caps

Last week, in a 3-2 opinion, the Tennessee Supreme Court declared that the state's statute that caps noneconomic damages to $750,000 (in most cases) is not unconstitutional. 

Day on Torts has links to all the opinions here.

Recent developments on whether colleges and universities have a duty to protect students from harm -- UPDATED

August

Last year I published an article on whether colleges or universities have a duty to protect students from harm (available here).  In it I discussed the then most recent cases on the subject.  One involved a claim against a university based on an attack by one student on another.  The other case involved a student who committed suicide.  In both cases, the courts found that the institution owed a limited duty of care to protect the students, which was a hint of the beginning of a new trend on the issue.

I am writing about this today because, sadly, there are two recent stories that combine both types of cases.

The first story involves the the death of a 24-year-old Ph.D. student of Chinese and Indian heritage at Utah State University.  According to a complaint filed recently, she ended her life after eight months of racist bullying by classmates.  The complaint names as defendants Utah State University, the head of the psychology department, and some students and professors, and it alleges negligence, wrongful death, and intentional infliction of emotional distress.

The claim against the University and its employees is based on the allegation that the decedent  complained about the alleged bullying to professors and a department chairperson but that the University took no action.

This claim is similar to the one filed in the case I discussed in my article so it will be interesting to see if the courts continue the trend to recognize, and impose, more of a duty to protect.  The one significant difference between the two cases however is that Utah State University is a state actor and, therefore, may be protected by immunity under a state "torts claims act" type statute.

You can read more about the case here.

A second related item involves  a Missouri college student who allegedly was “fascinated” with death and gave five other students advice on how to commit suicide. The student is now being sued by parents of two of the students who killed themselves, along with the University the students attended and the Fraternity they belonged to.  However, from the news account it is not too clear how strong the connection between the conduct of the student and the alleged conduct of the university really is.

You can read more about this case here.

For my posts on cases involving suicide, including some cases involving claims against colleges and universities, or against students for hazing, go here and scroll down.


UPDATE 11/3/19:  CBS has an article on the case here.

Recent Tennessee case holds suicide is a superseding cause

A couple of days ago I posted a comment about a couple of recent claims based on deaths by suicide.  Sadly suicide is a serious health issue.  There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country, which raises an interesting question for courts:  if the risk of suicide is known, can it be said that someone committing suicide is always unforeseeable?

I have published many stories on the issues raised by claims based on suicide over the years.  You can go here and scroll down to read them.  In a recent one I commented on an article that argues it is time to change the way courts approach suicide as a superseding cause that eliminates the right of a plaintiff to recovery -- a view I happen to agree with.

I am writing about this today because I just read about a new opinion out of Tennessee that provides the most recent and fairly comprehensive discussion on whether the act of committing suicide should be considered to be a superseding cause.  The case is called Cotten v. Wilson and you can read the opinion here.

As you may know already, some jurisdictions consider suicide a superseding cause per se, in all cases, while others presume it is a superseding but would consider evidence to support the claim that the presumption should be defeated.

Tennessee appears to be in the second camp.  According to the case, courts in Tennessee have generally held that suicide will be deemed a superseding cause of death if it was ‘a willful, calculated, and deliberate act of one who has the power of choice based on the notion that no reasonable person could foresee that a rational person would intentionally choose to commit suicide. But, courts would consider the conduct foreseeable under different circumstances including (1) where it is reasonably foreseeable that the defendant’s conduct will cause a mental condition in the decedent that would lead to the self-destructive act, (2) where the suicide occurs in a custodial context, (3) where there was a special relationship between the defendant and decedent, and (4) situations in which the defendant facilitated the suicide by supplying the decedent with the means to carry it out.

The case involved a woman and a psychiatrist who had been in a relationship.  The psychiatrist knew that the woman had attempted to commit suicide in the past, but nevertheless allowed her to stay in his home alone with an unsecured gun.

It seems to me that it is not too far fetched to argue that suicide could be considered to be foreseeable under those circumstances.  Yet, the Tennessee Supreme Court dismissed the claim holding that the “suicide constitutes a superseding intervening event that breaks the chain of proximate causation.”  One judge filed a dissenting opinion, which you can read here.