A cause of action that survives the death of the person entitled to commence the action or proceeding passes to the decedent’s successor in interest, and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest. California Code of Civil Procedure Section 377.30. Moreover, an action that is brought by the successor in interest to a decedent constitutes a survival claim. Adams v. Superior Court (2011) 196 Cal. App. 4th 71.
Generally, in a wrongful death action, a plaintiff may recover economic damages, which includes (i) the financial support that the decedent would have contributed to the family during either the life expectancy that the decedent had before his death or the life expectancy of the plaintiff, whichever is shorter, (ii) the loss of gifts or benefits plaintiff would have expected to receive from the decedent, (iii) funeral and burial expenses and (iv) the reasonable value of household services the decedent would have provided.
Additionally, a plaintiff in a wrongful death action may recover non-economic damages, which includes the loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society and moral support. Notably, in determining a plaintiff’s loss, the extent of plaintiff’s grief, sorrow or mental anguish, and the decedent’s pain and suffering are not considered. California Civil Jury Instructions, No. 3920.
Moreover, plaintiffs in a wrongful death action need not have been financially dependent upon the decedent in order to recover for the decedent’s death. DiRosario v. Havens (1987) 196 Cal. App. 3d 1225; 1239–1240. For instance, the adult children of a decedent or parents of a minor decedent may recover damages for the loss of the decedent’s love, affection, care, attention, companionship, comfort, and protection. Krouse v. Graham (1977) 19 Cal. App. 3d 59, 67–69. Notably, however, the law does not provide a loss of consortium cause of action for injury to a parent-child relationship. Foy v. Greenblott (1983) 141 Cal. App. 3d 1, 7. Consequently, children cannot maintain an action for loss of “parental consortium”. Borer v. American Airlines, Inc. (1977) 19 Cal. 3d 441.
The damages recoverable in a survival action are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive damages that the decedent could have been entitled to recover had the decedent lived, and do not include damages for pain, suffering or disfigurement. California Code of Civil Procedure Section 377.34; County of Los Angeles v. Superior Court (1999) 21 Cal. 4th 292. Please note that this rule applies to emotional distress damages, as well. Berkley v. Dowds (2007) 152 Cal. App. 4th 518. Further, a survival action may be joined with a wrongful death action where, as here, the purported actions arise out of the same alleged wrongful act or neglect. California Code of Civil Procedure Section 377.62, subd. (a).
A survival action may be joined with a wrongful death action where the purported actions arise out of the same alleged wrongful act or neglect. California Code of Civil Procedure Section 377.62, subd. (a).
Further, where one spouse is injured in a way which substantially affects his ability to participate in the marriage, due to the negligent or intentional act of a third party, the other spouse may have an independent cause of action for loss of consortium (i.e. the noneconomic aspect of marriage which includes loss of conjugal society, comfort, affection, companionship, sexual relations, moral support and household services). Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal. 3d 382. A loss of consortium plaintiff can recover not only for the loss of companionship and affection through the time of trial, but also for any future loss of companionship and affection sufficiently certain to occur in the future. Boeken v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 288. Such loss of consortium damages may be recovered for the shortest of (1) the period of the incapacity, or (2) if the incapacity is permanent, the injured spouse’s life expectancy as measured from just prior to the injury (i.e. as if the injury never occurred) or (3) the plaintiff spouse’s life expectancy. Id. at 800.
With respect to the applicability of Proposition 51 to loss of consortium damages, said damages are treated as noneconomic damages such that each tortfeasor is responsible only for its proportionate share of damages. California Civil Code Section 1431.2, subd. (b)(2). As such, an injured spouse’s contributory negligence effectively reduces the value of the loss of consortium claim in that because each defendant is liable only for his or her share of fault, a defendant cannot be assessed for the percentage of fault attributable to the injured victim. Craddock v. Kmart Corp. (2001) 89 Cal. App. 4th 1300. Similarly, settlement of a loss of consortium claim has no impact upon a subsequent damages award obtained by the injured victim against nonsettling defendants. Wilson v. John Crane, Inc. (2000) 81 Cal. App. 4th 847.
Notably, however, the law does not provide a loss of consortium cause of action for injury to a parent-child relationship. Foy v. Greenblott (1983) 141 Cal. App. 3d 1, 7; Borer v. American Airlines, Inc. (19777) 19 Cal. 3d 441.