by Moolah on Fri May 22, 2009 12:45 am
General Introduction to Wrongful Death Actions
California Wrongful death actions are governed by Code of Civil Procedure §§ 377.60-377.62. A one-year statute of limitations governs most wrongful death actions. However, in some circumstances, the limitations period may be tolled.
California law limits a claim for wrongful death to the death of "a person." A person is legally dead if brain functions or circulatory and respiratory functions have irreversibly ceased. An unborn fetus is not a person under the California Code.
California law creates an action for wrongful death only when the death "is caused by the wrongful act or neglect of another." The phrase "wrongful act" has been construed to mean "tortious act," and includes actions based on either negligence or intentional wrongful conduct.
What is a Wrongful Death Action?
A wrongful death action is an action for damages for the death of one person when that death is caused by the wrongful act or neglect of another. In California, a wrongful death action is created entirely by statute. Therefore, what the legislature says, not what the court say, is what creates the boundaries for wrongful death actions. For example, because the Legislature did not intend that a fetus be considered a person within the meaning of the wrongful death statutes, a wrongful death action cannot be maintained for the death of an unborn child. See Justus v. Atchison (1977) 19 Cal.3d 564, 580.
The purpose of a wrongful death action is to compensate persons who have a relationship with the decedent that is delineated by statute for the pecuniary loss suffered by them as a result of the death of the decedent.
The plaintiff in a wrongful death action stands in the shoes of the decedent for many purposes. For example, an award for wrongful death must be reduced by the proportionate share of the decedent's negligence. See Cavallaro v. Michelin Tire Corp. (1979) 96 Cal.App.3d 95, 109-110. The contributory negligence of a wrongful death plaintiff reduces his or her recovery proportionately, but it does not affect the award to which any other wrongful death plaintiff is entitled
If the decedent executed a pre-injury waiver and release by which he or she assumed all the risks of a particular activity, one may not effectively waive a cause of action for wrongful death, because that cause of action lies not in the releasor but in persons designated in wrongful death statute. This results from the fact that a wrongful death action is not derivative but, rather, a separate and distinct right belonging to the entitled persons set forth by statute that does not arise until the decedent dies. Therefore, any provision in a written waiver and release that waives or purports to waive a cause of action for wrongful death is legally ineffective to bar a wrongful death action by or on behalf of those persons entitled to sue under the wrongful death statute. See Madison v. Superior Court (1988) 203 Cal.App.3d 589, 596.