wrongful death/babies Flashcards
Can you bring a wrongful death suit on an unborn child?
no, you can only bring a wrongful death suit on behalf of a person, and in most cases, a fetus in the womb is not considered to be a person
where is the minority and majority jurisdictional split with regards to liability for unborn children?
Minority says liability for damages caused by wrongful death ceases at the point dictated by public policy (most cases birth)
Majority of jurisdictions draw the line at viability
is there such a thing as wrongful life?
NO- an infant P may recover special damages for the extraordinary medical expenses attributable to his affliction, but that he may not recover general damages for emotional distress for an impaired childhood
Who does wrongful death give cause of action to?
the spouse and children of the decedent
-Spouse must be legally married
-gay couple issue! couple from NY cannot if they move to KY
-unmarried and living together couples cannot file
–they can, however, recover for loss of society, comfort, and companionship
-stepchildren can usually not bring a wrongful death action
-children out of wedlock can bring wrongful death
-children in utero have a jurisdictional split (viability cutoff jurisdiction)
-when there are no survivors, no one can bring wrongful death
Parents can sue on behalf of their infant child or if there are no other spouses or children to recover
-modern rule looks to relationship between parents and child
–loss of society and companionship is recoverable
—pecuniary loss is difficult to establish in the death of a child because they cost more than they bring in
What are you required to plead for wrongful death?
The elements of negligence! duty breach causation damages mostly statutory
What is a survival claim
survival gives damages on behalf of the decedent given by an executor or administrator of an estate
What has to have happened in order for a survival claim?
the P has to be conscious to get pain and suffering, must have proof that P was living for a short period of time to bring this action
-only half the states allow for decedent’s claim for personal injuries
