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Wrongful Death of a Child or an Adult — Righting the Ultimate Wrong

John D. Winer, San Francisco

A. Who Can Sue in a Wrongful Death Case in California?

A person in California is entitled to bring a wrongful death action when he or she can show that a close relative died as the result of the wrongful conduct of another person or corporation.

Only certain relatives are allowed to bring a wrongful death action under California law. If the decedent was married, his or her spouse at the time of death can bring a lawsuit. If the decedent also had children, the children can also bring a lawsuit. If the decedent was married, but had no children, then his or her parents are allowed to bring a lawsuit. (Even if the decedent had children, a parent who was financially dependent upon the decedent could also bring a case.) Brothers and sisters are entitled to bring a wrongful death action if the decedent has no surviving children or parents. See California Code of Civil Procedure section 377.

In the case of a death of a child, the child’s parents are allowed to bring a case.

B. What Type of Misconduct Can Give Rise to a Wrongful Death Case?

A survivor can bring an action for wrongful death if the death results from either negligent or intentional wrongful conduct.

Wrongful death actions can be maintained if a person dies as the result many different types of misconduct including motor vehicle accidents, aviation accidents, train accidents, medical malpractice, toxic exposure, misprescription of drugs, fatal falls, construction site accidents, defective products, defective roadway design, intentional or accident killing by weapons and any other number of intentional or negligent mishaps that result in a death.

C. Wrongful Death Cases are Allowed by Statute.

Before 1862, there was no cause of action for wrongful death in California. However, in that year, the California Legislature passed a statute providing for wrongful death actions; thus, in California wrongful death actions are strictly a creature of statute.

D. What if the Decedent Survived for a Period of Time Before Death?

Sometimes, a victim does not die at the moment of the wrongful event. These are called “survival actions” and they belong to the decedent’s estate. It is different from a wrongful death action in that the estate can only recover for the economic losses incurred by the decedent between the time of the incident and the time of the death. However, the estate is allowed to recover punitive damages, i.e., damages to punish and make an example of the wrongdoer in a survival action, whereas those damages are not recoverable in a wrongful death action. In a proper case, both a survival action and a wrongful death action can be brought. Further, in elder abuse cases, the estate is allowed to recover for the decedent’s pain and suffering before death — these damages are not allowed in any other type of survival actions or wrongful death cases.

E. When Must a Wrongful Death or Survival Suit be Brought?

Under California law, a wrongful death action must be brought within one year of the date of death. If the case is not brought within that time limitation, the rights of the survivors are lost. It is important to note that the one-year statute begins running on the date the decedent died, not necessarily on the date of the incident. However, a survival action, mentioned above, must be brought within one year of the date of the incident (or the date the cause of action accrues) or six month from the date of death — whichever is longer.

Further, even if the decedent, while alive, had already brought a personal injury lawsuit, a new wrongful death case must be brought upon the decedent’s death.

Also, claims against public entities, such as cities and states, must be brought within six months of the time of the death.

F. Do All Heirs Have to Sue Together?

The law requires all the heirs entitled to bring a wrongful death action to bring the action together. For instance, in a case involving the death of a child, the mother and father must bring the action together even if they are separated at the time. However, they can have different attorneys.

G. How are Damage Awards Divided Among Heirs in a Wrongful Death Case?

Even though the cases must be joined together, the law recognizes that each person’s loss in a wrongful death case is individual and personal. If the case is settled, usually the heirs themselves, along with their attorney and sometimes with the help of a judge or mediator, determine the distribution of the settlement proceeds. In the case of a trial, the jury makes one award to all of the survivors and then the judge later divides the damages individually.

H. What Damages are Recoverable in Wrongful Death Cases?

i. What is the “just damage” rule?

California Code of Civil Procedure section 377 entitles wrongful death claimants to such damages “as under the circumstances of the case may be just.”

ii. Can the heirs recover monetary damages?

However, California cases have further defined wrongful death damages to include the value of future monetary contributions from the decedent to the heirs and the value of any personal service, advice or training that would have probably been given. This is determined by projecting the amount of money the decedent would have earned in the future but for his or her death.

iii. What emotional distress damages are allowed?

Damages also include compensation for loss suffered by the heirs of love, companionship, comfort, affection, society, moral support or any loss of decedent’s physical assistance in the operation or maintenance of the home.

iv. Are damages for grief recoverable?

The law does not allow recovery for grief or the pain and suffering of the heirs. Instead, damages are focused on the emotional losses suffered by the heirs.

v. Are damages for decedent’s pain and suffering recoverable?

No. Damages for the decedent’s pain and suffering before death are not recoverable in either a survival action or a wrongful death case. The only exception to this rule is elder abuse cases in which the estate is allowed to recover monetary damages for the decedent’s pain and suffering.

vi. Are the survivors allowed to recover punitive damages against the defendant?

Punitive damages are recoverable only in a survival action. If the decedent died at the moment of impact, punitive damages, which are damages meant to punish the wrongdoer, are not recoverable.

I. What If the Decedent Was Partially at Fault for Causing His or Her Own Death?

California is a comparative negligence State and, therefore, the heirs are still allowed to bring the case; however, their recovery will be reduced by the percentage of fault that is assigned to the decedent. In other words, if the heirs win a $3,000,000 award, but there is a determination that the decedent was 50% negligent, their recovery will be reduced to $1,500,000.

J. Are There Special Limitations to Damages Recoverable in Medical Malpractice Cases Involving Wrongful Death?

All of the heirs together in a medical malpractice case are limited to a $250,000 recovery for non-economic losses in a wrongful death case. This applies to the emotional losses but not the economic losses.

K. Can the Parents of an Unborn Child Bring a Wrongful Death Case?

No. California law does not permit the recovery of wrongful death damages for the death of a fetus, even a viable fetus, that is not born alive.

However, if the parents witnessed the negligence which caused the death of the fetus, they may be able to bring a lawsuit against the wrongdoer for negligent infliction of emotional distress. To bring this type of case, the parents must witness the wrongdoing and the injury causing death.

If a child is born alive, even for a short period of time, the parents can maintain a wrongful death action even if the injury which caused the death occurred before the child was born.

L. How Are the Financial Losses in a Wrongful Death Case Calculated?

If the decedent was supporting his or her family, loss of the financial benefits that the decedent could reasonably have been expected to contribute to the family in the future is the starting point for a calculation of economic damages in a wrongful death case.

However, future financial support must be reduced to present cash value.

Further, the total earning capacity of the decedent is reduced for the decedent’s own personal consumption, i.e., the part of the income that would not have ordinarily supported the surviving heirs.

A decedent’s retirement income from a pension or social security can be considered in determining probable contributions to heirs.

i. What if the surviving spouse has worked or will be able to work in the future — will this effect their recovery?

Even though a spouse has worked in the past or will be able to work in the future, he or she is entitled to damages for the loss of that part of the decedent’s prospective earnings that would have supported the spouse and enhanced his or her quality of life.

This rule applies whether or not the decedent was the major bread winner in the family.

ii. How are financial losses by a child determined?

Children are entitled to damages for loss of either parent’s expected financial contributions during each year of their expected life.

During the time a child would have been dependent upon the parent for financial support, the child can recover whatever the share of the deceased parent’s likely earnings would have been. If a child can establish that he or she would have been supported by the parent beyond the age of 18, the child can recover damages for that loss of support.

iii. Can the parents of a young child recover any financial losses in a wrongful death case?

If the parents can establish that the child was already financially contributing the family or would have likely contributed in the future, they can recover damages for their financial loss. They can even recover for the support and financial benefit they would have reasonably received after the child was 18.

M. The Heirs Recover for a Decedent’s Loss of Services in a Wrongful Death Case.

An heir is entitled to damages for the loss of the decedent’s services. The heirs can recover from the loss of the decedent’s services in addition to the loss of the anticipated financial contributions of the decedent.

All the heir, usually the surviving spouse, has to show is that he or she has suffered a financial loss as a result of having to perform services which the decedent would have performed if he or she were still alive or the spouse has had to hire someone to perform those same services that would have enhanced the surviving spouse’s life.

Damages for loss of services can be collected even if the heir did not hire or find a substitute to perform the services and did not perform them himself or herself. The heir can still introduce evidence of the actual or probable cost of hiring someone else to perform those services.

This element of damages is particularly important if the decedent was a homemaker because the heirs would not otherwise be able to claim any significant economic loss.

N. Can Wrongful Death Heirs Recover for Loss of Decedent’s Training and Advice?

A decedent’s death can deprive both a child and a spouse of the training and advice that they would have otherwise received from the decedent if the decedent had lived. For instance, a spouse might have to now take courses to learn tasks that the decedent did or the decedent would have been able to train the surviving spouse to do.

Further, a child might now need to pay for outside tutoring or training which the decedent would have provided.

The heirs are entitled to recover the cost of this expense.

O. Can the Heirs Recover Funeral and Burial Expenses in a Wrongful Death Case?

The heirs are entitled to recover as damages the amount of any reasonable expense paid out by them or for which they are liable for the decedent’s burial and funeral services.

P. Can the Defense in a Wrongful Death Introduce Evidence of Changed Circumstances Such as the Remarriage of a Surviving Spouse?

Evidence of changes in the status of an heir occurring after the decedent’s death is absolutely inadmissible. Therefore, the defense is not allowed to introduce evidence of a spouse’s remarriage. Further, the defense would not be allowed to introduce evidence that a new person has come along to support the family.

Wrongful death damages are assessed on the basis of the conditions that existed at the time the death occurred.

Q. For What Period of Time into the Future Are Wrongful Death Damages Calculated?

An heir may recover wrongful death damages for benefits the heir would have received during the years that both the heir and the decedent are expected to have lived. Damages are limited to the shorter of the two life expectancies. Therefore, evidence of the medical condition of both the decedent and the heirs is relevant at a trial.

However, absent evidence to the contrary, the trier of fact will assume that both the decedent and heirs were in good health.

R. Can the Defense Enter into Evidence the Fact That the Heirs Inherited Money Through a Will or Trust or That They Were the Beneficiaries of a Life Insurance Policy?

The value of the decedent’s estate and the fact that an heir will inherit from the decedent or that the heirs are the beneficiaries of a life insurance policy are irrelevant in a wrongful death case and cannot be introduced into evidence to reduce the recovery of the heirs.

S. Can the Defense Enter into Evidence the Cost of Raising a Child to Diminish the Financial Recovery of the Parents in a Wrongful Death Case?

In the wrongful death case of a minor, the defendant is entitled to have the trier of fact deduct from damages for the parents’ loss of services, benefits, society and comfort the prospective cost of the child’s care, maintenance and education. Even though the defense is allowed to introduce this evidence, it is a dangerous strategy because it could anger jurors.

T. Can the Defense Present Evidence of the Heir’s Wealth at a Trial?

No. Evidence that an heir is wealthy or poor, dependant on the decedent for support or has no means of support, is irrelevant to damage issues in wrongful death cases.

U. What Investigation Should Be Performed in a Wrongful Death Case.

i. The police report.

Hopefully, in any wrongful death accident case, the police will be called to the scene and will conduct an investigation and prepare a police report. The police report is a public document and can be obtained by the plaintiffs, or their attorneys or investigators a reasonable time after it is completed.

Although the police report itself cannot come into evidence at the time of the trial (it can come into evidence, however, at most arbitrations), the findings of the investigating officers can be elicited through the officer’s testimony at trial and can be utilized by the expert witnesses in the case.

Thus, a plaintiff should always obtain a police report in a wrongful death case.

ii. Investigation by the plaintiff attorney.

Whether or not a police report is created, a plaintiff’s attorney, either personally, through an investigator or both, should investigate the accident scene. Obviously, the sooner a motor vehicle accident scene can be investigated the better; however, even some time after an accident, there may be useful evidence to collect at a scene, such as skid marks, vehicle debris, ruts in the road and scrape marks. In addition, the condition of the accident scene itself may provide useful information for the case, such as the existence of signs, lights and other factors that can contribute to an accident. Pictures should always be taken documenting the condition of the scene as close to the accident as possible, and in appropriate cases, videotapes.

In other accident death cases, such as electrical, construction, product defect, construction or aviation cases, investigation is equally important and should be performed by an investigator with expertise in the subject matter.

iii. Maintaining the physical evidence.

It is critical that whatever instrumentalities caused the death be maintained in the exact condition that they were in at the time of the accident if the heirs are able to take control of the evidence.

iv. Obtaining the statements of witnesses.

Eye witnesses to an accident can make or break a case. Plaintiff generally will want to send an investigator to speak to witnesses and obtain signed declarations if their potential testimony is helpful. It is sometimes helpful for the investigator to bring the witness back to the scene to determine distances and other accident factors.

v. Investigation to determine possible defendants.

In a wrongful death accident case, the most obvious wrongdoer may not have enough insurance to cover the injury. Thus, consideration should be given to determining whether anybody other than the most obvious defendant was responsible for the death. The police report should be reviewed to see if it indicates the presence of any other possible wrongdoers and the accident site investigation and witness statements should be analyzed to see if there were any other possible defendants, such as people who had illegally parked their cars; the public entity for failure to provide a safe roadway or adequate lighting; the manufacturer, seller or repairer of the product which caused the death if there is evidence of product failure and any other possible defendants.

V. Expert Testimony in a Wrongful Death Case.

The two types of liability experts most commonly retained in wrongful death accident cases are accident reconstruction experts and human factors experts. Accident reconstructionists attempt to analyze and reconstruct the factors that were involved in the accident to help aid the jury in determining fault, and human factors experts analyze the relationship between people and machines, and based on studies and a study of the particular case, testify as to what the expected or reasonable conduct would or would not have been of the participants in the accident including the decedent.

In wrongful death cases involving children, plaintiff should consider retaining a child psychologist or a person with similar expertise, to talk about the normal behavioral patterns of children, since a child only owes the duty of care of an ordinary child, yet it is sometimes hard for adult jurors to remember how reckless they were as children.

Further, in cases in which the speed of the child crossing the street is an important factor, which is frequently, a plaintiff’s attorney should consider retaining a kinesiologist to perform tests and testify as to the actual speed that the plaintiff walked as opposed to “presumed” speed from studies.

An example of the type of expert testimony that can be useful in a wrongful death case is the analysis utilized in a case involving the death of a pedestrian.

Most pedestrian wrongful death cases will involve an analysis of a motor vehicle operator’s ability to avoid impact with a pedestrian once he knew or should have known that the pedestrian was crossing in front of them. To a significant, but lessor extent, the expert testimony will also focus on the ability of the pedestrian to have perceived the potential danger of a motor vehicle and avoiding it.

A similar liability analysis can be utilized in any type of wrongful death accident case whether it involves a motor vehicle accident case whether it involves a motor vehicle accident, product failure, construction accident or aviation accident. The appropriate expert should be hired in each case to ensure that plaintiff prevails on liability.

In addition, in a wrongful death case, it will be critical for the plaintiff to retain damage experts such as vocational specialists, economists and, in some cases, psychotherapists.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit for more information or for a free online consultation.

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