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Death may involve significant legal ramifications for the family of the deceased. Death, itself, has been subject to a variety of legal definitions. One such definition of death is“An individual who has sustained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem, is dead[i].”  Further, a determination of death must be made in accordance with accepted medical standards.

Generally, there is no common law right to file a claim for wrongful death.  In many jurisdictions, the wrongful death claim is entirely a statutory creation[ii].

Although spouses and dependent children, all other dependent next of kin, and death creditors can seek damages for the wrongful death of an individual, certain jurisdictions bars claims brought by some specific classes of beneficiaries.  For instance, under the Georgia Wrongful Death Statute, the only persons who are entitled to bring a claim and recover for wrongful death are surviving spouses and surviving children[iii].  Whereas the Maryland Code limits primary wrongful death actions to those brought for the benefit of the wife, husband, parent, and child of the deceased person and limits secondary beneficiaries to actions for the benefit of any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased[iv].

Changes in the elements of damage or the standards by which they are recovered under these circumstances is a legislative prerogative and hence, are not subjected to constitutional review.  Although the right of action for wrongful death is not a vested right, courts have generally upheld the constitutionality of wrongful death actions and held that such statutes does not violate the anti-discriminatory and equal protection clauses of the Constitution[v].

Further, despite being remedial in nature, wrongful death statutes are strictly construed by the courts because they are created by the legislative acts.

A tort action abates upon the death of the wrongdoer at any time before the action is ready for rendition of a final judgment, in the absence of a statute expressly providing that the cause of action shall survive.[vi]  In some states, the statutes expressly stipulate that the wrongful death action, as a personal action at law, may survive the death of either party[vii].

Death of a person can be proven by circumstantial evidence.  Wrongful death action will lie only where the deceased had a claim that was not time-barred on or before his death[viii].

In most states, a wrongful death action must be brought within two to three years of the date when the action accrues.  A cause of action accrues and the statute of limitations begins to run when a party has the right to apply to a court for relief.  However, where there is no proof of death, the three- year statute of limitations for wrongful death actions is tolled until the plaintiff can present evidence of death by way of the presumption created in the statutes and common law[ix].

A cause of action for personal injuries accrues when the plaintiff suffers injury and generally, the limitations period is not tolled simply because the plaintiff is unaware of the existence of an injury.  To alleviate the harsh consequences that would flow from the mechanical application of the limitations period, courts follow the discovery rule. The application of the discovery rule postpones the commencement of the relevant statute of limitations until an injured party knows or reasonably should know that he has been injured and that his injury was wrongfully caused[x].

[i] Uniform Determination of Death Act § 1

[ii] Tolbert v. Maner, 271 Ga. 207 (Ga. 1999)

[iii] Tolbert, 271 Ga. 207

[iv] Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500 (Md. 1996)

[v] Capiello v. Goodnight, 357 So. 2d 225 (Fla. Dist. Ct. App. 2d Dist. 1978)

[vi] Estes v. Riggins, 68 Nev. 336 (Nev. 1951)

[vii] Owens-Corning Fiberglas Corp., 343 Md. 500

[viii] O’Brien v. O’Donoghue, 292 Ill. App. 3d 699 (Ill. App. Ct. 1st Dist. 1997)

[ix] Nelson v. Schubert, 98 Wn. App. 754 (Wash. Ct. App. 2000)

[x] Golla v. General Motors Corp., 167 Ill. 2d 353 (Ill. 1995)

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