There is no cause of action for wrongful death under common law since common law does not recognize liability in tort for killing another because actions for personal injury did not survive the death of the injured party[i]. However states have created a statutory cause of action for wrongful death. A claimant’s cause of action for wrongful death arises when the decedent dies[ii].  On the other hand, there are statutes which impose liability on individuals for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s or his agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness, or default[iii].

Every state has its own version of wrongful death statute.  Most statutes provide remedy only in cases where defendant’s actions or inactions were the proximate cause of plaintiff’s death.

Generally, wrongful death statutes are strictly construed and allow recovery for only those damages prescribed by the Statute Pecuniary loss is the foundation of a wrongful death action.  Damages in a wrongful death action are limited to the pecuniary loss suffered by the beneficiaries.  Beneficiaries include spouses and dependent children, all other dependent next of kin, and death creditors.

If a wrongful death action is brought under the federal Civil Rights Act in a state court, then the state wrongful death statute will be the governing law regarding the computation of damages[iv].

Some jurisdictions hold that a common-law right of action for wrongful death exists.  However, courts are reluctant to recognize a common-law right of action on the presumption that legislative enactments have preempted the common law cause of action[v].  The majority view is that any common law claim encompassed by the wrongful death statute must be asserted under that statute[vi].

Although courts do not recognize an independent cause of action under common law for wrongful death, “courts have inherent power to apply common-law principles in construing a wrongful-death statute, where the legislature, by incorporating into the statute common-law principles of liability as a basis of entitlement, demonstrated that it did not intend to occupy the field of law entirely, leaving no room for judicial development of wrongful death remedies[vii].”

While wrongful death statutes create independent claims for the survivors, the survivors’ claims are also derivative since they are dependent upon a wrong committed upon another person[viii].  In other words, “a wrongful death action is derivative of the injured person’s right, while living, to recover for personal injury[ix].”

Wrongful death provisions are construed to be remedial and are intended to compensate the loss caused to the claimants due to the death of the decedent[x].  However, this is not the rule in Alabama.  Under Alabama law, all damages recoverable under wrongful death statute have been held to be punitive damages and an action for wrongful death as well as a cause of action for wrongful death survives against the personal representative of a deceased defendant[xi].

In the absence of an express legislative intent, wrongful death statutes are not considered to have retroactive operation[xii].  Retroactive operation is permitted in certain limited instances.  For example, if amendments to a wrongful-death statute authorizing recovery for loss of society, comfort, and companionship are held to be remedial rather than substantive in nature, they may be applied retroactively[xiii].

Courts are generally disinclined to extend the survival of actions for wrongful death against the representatives of the wrongdoer.  Generally, the death of the tortfeasor terminates any right to recover damages for the wrongful death, unless the statute expressly authorizes such survival of action.  However, some other courts have taken a different view and held that death statutes intend compensation to the estate of the decedent or to the designated beneficiaries, regardless of whether the wrongdoer survived[xiv].

Generally, a personal representative of the decedent brings an action for the death and the choice of applicable state law is determined by the residency of the decedent at time of his or her death and not by the domicile of the personal representative[xv].

While determining the choice of law issue, courts generally take into consideration (a) “the place where the injury occurred; (b) the place where the conduct causing the injury occurred; (c) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (d) the place where the relationship, if any, between the parties is centered[xvi].”

Some states also apply a “governmental interests” analysis, under which the law of the interested state prevails in the event of a conflict of state law occurs.  However, when both states have an interest in applying their own laws to the facts of the case, the law of the forum is applied unless the foreign state has a greater interest in the controversy[xvii].

Normally, damages recoverable in a tort action are based on the negligent acts of the tortfeasor.  However, damages in a wrongful-death action are not similar to other tort actions because recoverable damages are not based on the negligent act but, rather, on the survivors’ injuries resulting from the decedent’s death[xviii].

In order to claim damages, the wrongful act is of such character as would, if death had not ensued, have entitled the person injured to maintain an action in respect thereof[xix].  This is an essential condition to the creation of the new cause of action in the beneficiaries and once this condition is fulfilled, the action accruing to the beneficiaries is perfected upon the death of the decedent.  Some states have less stringent norms regarding the accrual of the cause of action to the beneficiaries.  In such states wrongful death action is an independent and distinct action that arises “even in the absence of a viable personal injury action by the direct tort victim and compensates the beneficiaries for their own individual injury arising out of the victim’s death[xx].”

[i] Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994)

[ii] Chavez v. Carpenter, 91 Cal. App. 4th 1433 (Cal. App. 6th Dist. 2001)

[iii] Hall v. Huff, 957 S.W.2d 90 (Tex. App. Texarkana 1997)

[iv] Alvarez v. Wiley, 71 Cal. App. 3d 599, 604 (Cal. App. 5th Dist. 1977)

[v] Liff v. Schildkrout, 49 N.Y.2d 622 (N.Y. 1980)

[vi] State Auto Ins. Co. v. Blind, 650 S.E.2d 25 (N.C. Ct. App. 2007)

[vii] O’Grady v. Brown, 654 S.W.2d 904 (Mo. 1983)

[viii] Celotex Corp. v. Meehan, 523 So. 2d 141, 147 (Fla. 1988)

[ix] Toombs v. Alamo Rent-A-Car, 833 So. 2d 109, 118 (Fla. 2002)

[x] Cunningham v. State Dep’t of Children & Families, 782 So. 2d 913 (Fla. Dist. Ct. App. 1st Dist. 2001)

[xi] Ellis v. Zuck, 546 F.2d 643, 644 (5th Cir. Ala. 1977)

[xii] Gayken v. Nelson, 296 F. Supp. 292 (D. Minn. 1969)

[xiii] Robinson v. Parker-Hannifin Corp., 4 Ohio Misc. 2d 6 (Ohio C.P. 1982)

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

[xv] Burney v. P V Holding Corp., 218 Mich. App. 167 (Mich. Ct. App. 1996)

[xvi] Restatement Second, Conflict of Laws § 145

[xvii] Herbert v. District of Columbia, 808 A.2d 776 (D.C. 2002)

[xviii] Englert v. Carondelet Health Network, 199 Ariz. 21 (Ariz. Ct. App. 2000)

[xix] Yardley v. U.S. Healthcare, Inc., 698 A.2d 979 (Del. Super. Ct. 1996)

[xx] Walls v. American Optical Corp., 740 So. 2d 1262 (La. 1999)