A decedent’s damages from the injury incurred, and his time of death, do not “die” when the injured party dies. A beneficiary (usually a wife) is allowed to recover for damages that her husband was entitled to, prior to his death, and after his injury.
She is also entitled to wrongful death monies, such as pecuniary monies, and consortium monies.
Murphy’s (Plaintiff) husband was negligently burned in a fire on the premises of Martin Oil Co. (Defendant). He survived for 9 days, then died as a result of the fire – Wife brought claim under (1) wrongful death statute (2) under the survival statute.
Survival complaint asked for :
- The decedent’s physical and mental suffering, for loss of wages for the 9 day period, and loss of clothing, worn at the time of the fire.
- Old rule – action for personal injury would not survive the deceased’s death.
- Wrongful death act – Limited to pecuniary losses when the injured party died from a cause other than that which caused the injuries which created the cause of action..
- Under survival statute – non-economic damages (consortium) could only be had if death resulted from a cause other than the one which gave rise to the personal injury action.
- Can the P recover for the loss of wages which her decedent would have earned, during the interval between his injury and death
- Can the P recover for the destruction of the decedent’s personal property at time of death?
- Can the P recover damages for pain & suffering of the decedent form the time of his injuries, to the time of death?
- YES – you can allow personal injuries, in addition to the action under the wrongful death statute although death is attributable to the death.
- YES – you can recover for pain and suffering, if it is not contemporaneous to the decedent’s death.
In order for there to be full liability and full recovery, there must be action allowed for damages up to the time of death (survival claims that are for the decedent) and thereafter (wrongful death claims from the decedent’s heirs).
– Just because death occurs, does not seem logical that a suit should die with the tortfeasor.
– Wants all tort remedies to survive, as do contract remedies.
– Usual cause of action is to allocate, pain and suffering, expenses, loss of earnings up till the decedent’s date of death and then to allocate the loss of benefits of the survivors to the action for wrongful death.
– Not fair that if some dies, from injuries that cause death, that the wrongdoer should receive a windfall and not be liable to pay any monies to the decedent’s survivors.