Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
proposed by Representative Drew Hansen, a partner at the trial lawyer firm Susman Godfrey, the
Washington legislation expressly authorizes damages for the full cost of forest restoration. Do
restoration damages make up for the lost intangibles?
4. Death Cases
Wrongful Death Actions
Tort actions arising out of a person’s death are the most extreme example of the
impossibility of restoring a plaintiff to her original condition. Not only is life different in kind
than a sum of money, the victim cannot even use the funds to improve his or her state, as living
victims might be able to.
Perhaps for this reason, the traditional common law rule was that causes of action in tort
died with the victim: at common law, there were no death actions. Death, like pure economic loss
or pure emotional distress, was an injury as to which no tort duty existed.
One reason for this was that the medieval and early modern law of homicide typically
entailed the forfeiture of the perpetrator’s estate; there were thus no assets a decedent’s family
might hope to claim, since they had all been forfeit to the sovereign. Still, the rule seemed
anomalous at best.
A number of American jurisdictions abandoned the English rule barring death actions in
the early years of the nineteenth century. And in the middle of the nineteenth century, legislation
specifically authorized so-called “wrongful death” actions, first in England and then in states
across the U.S. John Fabian Witt, From Loss of Services to Loss of Support: The Wrongful Death
Statutes, the Origins of Modern Tort Law, and the Making of the Nineteenth-Century Family, 25
L. & SOC’L INQ. 717 (2000).
Wrongful death actions under the statutes are typically brought by the decedent’s
dependents to recover lost support. Generally, a wrongful death statute lays out who may bring a
claim and what damages they may be entitled to receive. The quintessential plaintiffs are close
family members dependent on the decedent for financial support. A number of states have
broadened the categories of plaintiffs with standing to bring wrongful death suits. In California,
for example, a dependent minor has standing to bring a wrongful death suit arising out of the
death of an adult on whom the minor was financially dependent and with whom the minor lived
for at least 180 days, regardless whether the minor plaintiff was related to the adult decedent. Cal.
Code Civ. Pro. 377.60.
Their damages in wrongful death actions are typically pecuniary damages for the loss of
support. In California, for example,
[a] plaintiff in a wrongful death action is entitled to recover damages for his own
pecuniary loss, which may include (1) the loss of the decedent’s financial support,
services, training and advice, and (2) the pecuniary value of the decedent’s society
and companionship—but he may not recover for such things as the grief or sorrow
attendant upon the death of a loved one, or for his sad emotions, or for the
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