For a wrongful death cause of action, there must be a determination of “causation,” detriment or suffering caused by the death, and standing of the person claiming injury; one should also be aware of the statute of limitations for filing the action.
“Causation” is an essential element of a tort action. Defendants are not liable unless their conduct (i.e., act or omission constituting a breach of duty to plaintiff) was a “legal cause” of plaintiff’s injury [Saelzler v. Advanced Group 400 (2001)]. Under a wrongful death cause of action, the plaintiff must prove the victim’s death was “caused by the wrongful act or neglect” of the defendant—i.e., that defendant’s act or omission was a substantial factor in bringing about the victim’s death.
Only persons set forth in CCP § 377.60 have standing to a wrongful death action.
CCP § 377.60
“A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf:
(a) 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 by intestate succession.
(b) Whether or not qualified under subdivision (a), if they were 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.
(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, 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.”
As a general rule, each wrongful death claimant is entitled to damages for all detriment he or she personally suffered and is likely to suffer in the future because of decedent’s death. Each eligible claimant can recover damages for the support and other financial benefits he or she would have received from the decedent. Quite apart from direct pecuniary losses, each claimant is entitled to compensation for the services he or she could reasonably have expected to receive from the decedent. Wrongful death claimants—particularly parents, spouses, registered domestic partners and children—are entitled to damages for a proven loss of “love, comfort, companionship, society, affection, solace or moral support” [Corder v. Corder (2007); Allen v. Toledo (1980) ; Yates v. Pollock (1987); Canavin v. Pacific Southwest Airlines (1983)]. These are among the damages that may be recovered by the claimant.
Wrongful death actions are usually subject to one of two statutes of limitations: either the general two-year statute:
CCP § 335.1
“Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”
Or if the suit is based on a health care provider’s professional negligence, the three-year statute applies.
CCP § 340.5
“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”
To know more about wrongful death claims and the proper steps to take, it is best to work with a lawyer who is an expert in personal injury for proper guidance and representation.