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The wrongful death of a loved one is an extremely difficult situation to endure. Darryl B. Freedman and his firm have successfully represented people who have suffered wrongful death in all types of car/automobile, big rigs, trucks, motorcycles, distracted driving accidents and more. Stop by our results page to see real life examples of personal injury cases.

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Wrongful Death Victims

Wrongful Death

WHAT IS WRONGFUL DEATH?

A cause of action for the death of a person caused by the wrongful act or negligence of another may be asserted by any of the persons described in the next section, or by the decedent’s personal representative on his behalf [Code of Civ. Proc., §377.60].

Why do we need such a law?

Because once a person’s death is caused by a civil wrong (a tort), the decedent cannot sue for his own damages. The decedent’s pain and suffering is no longer compensable. The decedent’s past and future loss of earnings are no longer compensable unless a third party would have recovered some benefit from those earnings.  So, if the decedent no longer has a cause of action against the wrongdoer, who can sue?

WHO MAY RECOVER FOR THE WRONGFUL DEATH?

  • The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent if he died without a valid will;
  • Persons dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.
  • A minor at the time of the decedent’s death, if the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support [Code of Civ. Proc. 377.60].
  • In order for any of these claimants (plaintiffs) to recover, they must still prove that the wrongful act of the tortfeasor (defendant) was a substantial factor in causing of the wrongful death.

In the event a person entitled to recover for wrongful death damages dies away before a settlement or verdict, your losses cannot be recovered by another family member.  A personal injury claim is a personal loss and when someone passes away, their right to pursue a personal injury claim such as a wrongful death claim passes away with them.]

WHAT CAN BE RECOVERED FOR THE WRONGFUL DEATH?

When an individual is injured, they can make a claim for

  • Economic damages,
  • General damages
  • Occasionally, for punitive damages.

General damages for a Plaintiff usually consists of

  • Compensation for pain,
  • Suffering and loss of enjoyment or quality of life.

These general damages are not available in a wrongful death claim. Common sense would indicate that when you lose a loved one, the biggest element of a plaintiff’s damage is the grief, sorrow and mental anguish suffered as a result of the loss. However, in California the jury is specifically instructed that it cannot compensate for these damages [CACI 3921].

This is also true for any compensation for the decedent’s pain and suffering. Therefore, if the decedent was severely burned or became a quadriplegic from the accident and subsequently died from those injuries, no compensation can be awarded for the pain and suffering experienced by the decedent before his death [CACI 3921].  Similarly if a person who is entitled to wrongful death damages, themselves pass away before settlement or verdict, their wrongful death claim passes with them. For example, if a mother and father have filed a wrongful death claim for the loss of their minor child, and the mother passes away before the case has settled or reached a verdict, the value of the loss will then only be determined by the loss of the surviving father.

Punitive damages, those designed to punish the defendant rather than to compensate the family or others entitled to recover for the loss, can only be awarded in cases where plaintiffs prove the person or company which caused the death was “guilty of oppression, fraud, or malice” [Civil Code section 3294].

  • “Malice” means conduct that is intended to cause injury such as a battery, or despicable conduct carried out with a willful and conscious disregard of the rights or safety of another.
  • “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
  • “Fraud” means an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention of causing injury.

The nature of the damages that can be awarded in a wrongful death case are found in the Judicial Council of California Civil Jury Instructions (CACI). The following are the instructions a potential jury would be provided to guide them in awarding damages.

3921. Wrongful Death (Death of an Adult)

  • If you decide that plaintiff has proved his claim against the defendant for the death of decedent, you also must decide how much money will reasonably compensate plaintiff for the death of decedent. This compensation is called “damages.”  
  • Plaintiff does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages. 
  • The damages claimed by plaintiff fall into two categories called economic damages and noneconomic damages.
  • You will be asked to state the two categories of damages separately on the verdict form.

Plaintiff can claim the following economic damages:

  • The financial support, if any, that decedent would have contributed to the family during either the life expectancy that decedent had before his death or the life expectancy of plaintiff, whichever is shorter;
  • The loss of gifts or benefits that plaintiff would have expected to receive from decedent;
  • Funeral and burial expenses; and
  • The reasonable value of household services that decedent would have provided.

Your award of any future economic damages must be reduced to present cash value.

Plaintiff also claims the following noneconomic damages:

  • The loss of decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support; [and]
  • The loss of the enjoyment of sexual relations.
  • The loss of decedent’s training and guidance.

No fixed standard exists for deciding the amount of noneconomic damages.

You must use your judgment to decide a reasonable amount based on the evidence and your common sense. [Your award for noneconomic damages should not be reduced to present cash value.]

In determining plaintiff’s loss, do not consider:

  • Plaintiff’s grief, sorrow, or mental anguish;
  • Decedent’s pain and suffering; or
  • The poverty or wealth of Plaintiff.

In deciding a person’s life expectancy, you may consider, among other factors, the average life expectancy of a person of that age, as well as that person’s health, habits, activities, lifestyle, and occupation. This information is evidence of how long a person is likely to live but is not conclusive. Some people live longer and others die sooner.

In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. It will be divided the amount among the plaintiffs.

Common sense would indicate that when you lose a loved one, the biggest element of a plaintiff’s damage is the grief, sorrow and mental anguish suffered as a result of the loss. However, in California the jury is specifically instructed that it cannot compensate for these damages [CACI 3921].

This is also true for any compensation for the decedent’s pain and suffering. Therefore, if the decedent was severely burned or became a quadriplegic from the accident and subsequently died from those injuries, no compensation can be awarded for the pain and suffering experienced by the decedent before his death [CACI 3921].

*These words of experience are not intended as legal advice or as a substitute for retaining an attorney, but again, are just words of experience that people who have been injured have found helpful when they are first making inquiries into how best to proceed.

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Committed To Our Community

As a native of Fresno, Darryl B. Freedman is committed to California's Central San Joaquin Valley. He works to improve lives in our community by practicing law in the community he loves. Raised in the San Joaquin Valley, Mr. Freedman attended Fresno High School and went on to earn his bachelors degree in Public Administration from California State University, Fresno.