Wrongful Death

A wrongful death claim is a suit that arises from the death of an individual that was caused by the conduct of another. A wrongful death suit is different from other types of personal injury claims because the actual victim (the "decedent") is not bringing suit, rather it is the family members or the decedent's estate. As such, a wrongful death claim is brought to recover damages for the injuries that the surviving family and/or estate have suffered due to the death of the victim. The damages recovered do not include damages that are personal to the decedent, since the decedent is not allowed to recover for pain and suffering, mental distress, or any other form of compensatory damages unique to him or her. The purpose of a wrongful death suit is to provide relief to family members who have been injured emotionally and financially as a result of the family member's death.

In California only certain persons can file a wrongful death suit on behalf of the decedent. Since an action for wrongful death is governed solely by statute, the right to bring the action is limited only to those persons described by the Legislature in Code Civ. Proc., § 377.60. Phraner v. Cote Mark, Inc., 55 Cal. App. 4th 166, 63 Cal. Rptr. 2d 740 (4th Dist. 1997). Generally, the decedent's surviving spouse, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse, who is entitled to the property of the decedent can file suit. Cal Code Civ. Proc. § 377.60. Under California's statute of limitations, a plaintiff must bring a cause of action for wrongful death within two years of accrual. Cal. Code Civ. Proc. $ 355.1. The date of accrual of a cause of action for wrongful death is the date of death. However, if the plaintiff is blamelessly ignorant of his cause of action, the date of accrual of a wrongful death cause of action is the date on which the plaintiff comes at least to suspect, or have reason to suspect, a factual basis for a claim of wrongful death. Norgart v. Upjohn Co., 21 Cal. 4th 383, 404, 87 Cal. Rptr. 2d 453, 981 P.2d 79 (1999). If an heir or beneficiary is comparatively negligent for the decedent's death, negligence of an heir will merely be a ground for reduction of his or her damages.


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