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Scottsdale, Arizona

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Geoff Trachtenberg
Geoff Trachtenberg
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The Nature of the Wrongful Death Remedy

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Unlike most injury claims, wrongful death claims are governed by statute. This has some important and surprising consequences.

By way of some background, the reason wrongful death statutes were enacted was because, at common law, there was no such cause of action. As a result, it was often cheaper to kill someone than it was to simply injure them (there was a saying that, “if your carriage runs over someone, you had better back up and make sure they were dead.”). Wrongful death statutes were enacted, at least in part, to correct this unfair result and to compensate the survivors for the loss of a loved one.

One of the consequences of such statutes is that only certain survivors — i.e., statutory beneficiaries — can make such a claim. Typically this includes a surviving husband or wife, children or parents. So, for example, it does not include un-adopted children or live-in girlfriends or boyfriends. Those parties not included within the scope of the statute have no derivative remedy for wrongful death.

Another consequence is when someone is killed and there are no statutory survivors. While the person’s estate can bring a claim (usually under a separate survival statute), such claims are typically limited to medical and burial expenses, and exclude pain and suffering. So, for example, if someone is negligently killed, dies instantly without the need of medical care and in a manner where there is no body to bury (e.g., due to a fire), there is basically no remedy or meaningful consequence to the person who was negligent.

Ironically, had the same person survived such an incident with severe injuries, the negligent person would be liable for, among other things, medical bills, pain and suffering. So in some cases it is still “cheaper” to kill than it is to injure, a surprising outcome to say the least.