In a survival action in California, damages are measured in terms of harm to the actual victim. The personal representative serves as the posthumous agent of the victim. In a wrongful death action in California, damages are measured in terms of harm to loved ones as a result of the loss of the victim. In this case, the surviving relatives do not serve the agent for the decedent and act on their own behalf for their own loss.
One chief difference between a survival statute and a wrongful death statute is that if death is instantaneous, there can be no cause of action except for medical bills, lost wages before death and funeral expenses under the California Survival Statute.
One question families who have lost a loved one in an accident ask us at Tryk Law, is, "what is the maximum recovery they can receive for their accidental death that is due to the negligence of someone else?" Assuming no problems with insurance or collectability, the damages can be separated into economic and non-economic damages.
There is no cap on economic damages in California. Accordingly, in the example above where the woman supports two children, the children would be entitled to recover for the loss of the comforts, education, and position in society which they would have enjoyed if their mother/wife had lived and retained her income and they had continued to form part of the family.
Practically, this means they are also entitled to 1) her lost wages from the time of the accident and her death; and 2) future lost wages. A future lost earnings award is allowed for earnings "reasonably certain" to result from the injury and are awarded by the jury in a lump sum. The amount of lost earnings awarded must be based upon present value and not upon speculation about inflation or other unknown factors impacting earning potential. But, obviously, the computation of future lost earnings is not exact and to some degree it invariably requires speculation about the decedent's life expectancy and expected work experience.
Recovery for a minor child is similar but varies just a little. The following are items both Economic and Non-Economic that are recoverable by the parent for the death of a minor child. Recovery of Economic Damages include: 1) The value of the financial support, if any, that the minor child would have contributed to the family during either the life expectancy that the minor child had before his/her death or the life expectancy of the parent whichever is shorter; 2) The loss of gifts or benefits that the parent could have expected to receive from the minor child; 3. Funeral and burial expenses; and 4) The reasonable value of household services that the minor child would have provided.
Non-Economic Damages that a parent may recover for the death of a minor child include the following: The loss of the minor child’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.
to view the actual Judicial Council of California Civil Jury Instructions 3291 & 3292, which indicate Recovery for the Wrongful Death of an Adult and Wrongful Death Recovery of a Minor.
If you live in California and believe you have a family member that was killed and believe it was caused by the negligence by another, call today and get a free no obligation consultation (559) 840-3240
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