US Tort Law/Wrongful Death

Disclaimer: This page is sourced from an actual law student. Neither he or the editors of this article are licensed attorneys. All information discussed herein is a work in progress and cannot be construed as legal advice.

In this chapter of the Torts Casebook we will discuss Wrongful Death

Neil Wehneman is a 1L at University of Cincinnati School of Law

Sources:

• Neil Wehneman's podcast on this topic: [1]

• Neil Wehneman's notes on this topic (personal communication).

Cases:

Eleason v. Western Casualty & Surety Co. - Wisconsin Supreme Court 1948

Facts:

• The plaintiff was the executor of an estate that belonged to a man run down by a truck and killed

• The defendant was an insurance company
  • at this point in time, Wisconsin allowed direct action against an insurance company

• Luer, driver of the truck, was driving the truck within the scope of his employment; respondeat superior would have kicked in through vicarious liability

• Within a few hours of the man's death, his wife died after finding out about the tragedy

• Luer knew that he had "spells" where he would lose consciousness

• It was illegal for someone with epilepsy to get a driver's license

Issues:

Is it negligence, specifically wrongful death action, for an individual who suffers from "spells" (even if he does not understand their reason) to drive?

Decision:

Yes, the reasonable person would be aware of the danger caused by these "spells".

The defense in turn justified the actions by saying they were "Acts of God"

Response by the Supreme Court Justice: "the term Act of God in its legal sense means such inevitable accident as cannot be prevented by human care, skill, or foresight."

Wrongful Death Overview:

Wrongful death is one of the most significant torts, as far as damages go; it does not fall under the common law, it is a statutory tort.

Statutes

Under common law, you cannot recover from wrongful death. The theory is that you cannot be "made whole" if you are dead.

The statutes fixed this problem by assigning the rights to the heirs of the deceased. (Note: If the heirs are not determined by the will, the state has a means of finding your rightful heirs)

Damages

Due to tort reform the common law often puts a caps on tort damages. In Ohio, the constitution states that wrongul death damages cannot be capped, but a statute is in place that does not allow for punitive damages.

There is huge list of damages that can be included, ie consortium, companionship, education, etc...

Survival Action

This is a period after the negligent action by the plaintiff, but before the eventual wrongful death.

This period of time involves medical expenses, lost wages, and mental and physical pain.

If you die immediately you cannot recover, and if you are unconscious you will only get medical expenses.

Unmarried, Long Term Couples

In general, unwed couples do not have the ability to recover from a wrongful death unless it is stated explicitly in the statute. However, they do have legal recourse if they are mentioned in the explicit will.