Introduction – Chapter 1 (p. 2) and Chapter 2 (p. 13)

WRONGFUL DEATH ACTIONS

1. SURVIVAL ACTIONS (loss-to-estate statutes). Minority Rule, but prof says every state has this [Gilbert 230]

1. EXECUTOR/ADMINISTRATOR STEPS INTO THE SHOES OF THE DECEDENT and damages are distributed to the estate.

   1. Measure of DAMAGES: amount DECEDENT WOULD HAVE BEEN ABLE TO RECOVER in his lifetime “but for” his wrongful death.

   2. LIMITED IN SOME STATES INCLUDING CA. CA: only get pain and suffering [see statutes CB 565]. Strange because majority rule allows you to get everything.

1. WRONGFUL DEATH ACTIONS (Loss-to-survivors. Majority Rule). Must look at statute to see who is a proper P. CA on p. 565)

1. A NEW CAUSE OF ACTION ESTABLISHED FOR THE BENEFIT OF SPECIFIED SURVIVORS

   1. Measure of recovery BASED ON THE SURVIVOR’S LOSS OF CONSORTIUM OF THE DECEDENT (provable loss) [Gilbert 230]

1. PECUNIARY DAMAGES: loss of support/earnings, services, funeral expenses, losses from injury to child.

   1. NON-PECUNIARY DAMAGES:

1. consortium (society, comfort, protection, parental guidance, and nurture). Looks at nature of the relationship.

   1. D’s pre-impact terror.

   2. Loss of children: parents cannot recover for loss of consortium with children, but can recover for lost pride and enjoyment, less costs of rearing the child. Limited by parents’ life expectancy. May also have a claim for neg. infliction of Emotional Distress. Split as to whether there is an action for unborn children. May allow siblings to recover. [Gilbert 234]

   3. Prejudgment interest: not per se recoverable, but used in calculation of PV of damages. [Gilbert 235]

1. Punitive damages are generally not allowed.

1. NEW STATUTORY CAUSES OF ACTION. Doesn’t exist at CL.

2. DOES NOT ALLOW A DOUBLE RECOVERY

3. Usually amount is not limited by statute. [Gilbert 235]

4. CA: limites noneconomic damages in medical malpractice cases to $250K

5. Once you have standing to sue, you can recover whatever damage you can prove. Each person can recover for their own losses and it’s not considered double recovery.

6. CALIFORNIA: HAS BOTH

1. SURVIVAL ACTION: THE ESTATE CAN RECOVER ALL DAMAGES THE DECEDENT WOULD HAVE BEEN ABLE TO RECOVER EXCEPT PAIN AND SUFFERING

   1. WRONGFUL DEATH: ALL DAMAGES THAT MAY BE JUST BUT MAY NOT INCLUDE DECEDENT’S DAMAGES.

1. WHO MAY RECOVER: CALIFORNIA

1. SURVIVAL ACTION: SUCCESSOR IN INTEREST OR PERSONAL REPRESENTATIVE

   1. WRONGFUL DEATH: SURVIVING SPOUSE, CHILDREN AND ISSUE OF DECEASED CHILD, OR IF NONE, TO THOSE ESTABLISHED BY INTESTATE SUCCESSION.

   2. CA: statute is a bit weird because it gives preferences for intestate succession, whereas most states will award to all spouses and children, including unborn children.

1. CASES

1. MORAGNE V. STATES MARINE LINES, INC.

   1. PROBLEM: THE GRIEVING MOTHER

   2. SANCHEZ V. SCHINDLER Time: injury to death. General damages: medical, funeral, wages, earning capacity. p. 573: court is OK with minors recovering. For adult children, special circumstances are probably required. Prof says that court really bends it’s analysis to stretch the rules and make sure the adult child gets damages. However, historical perspective is good. Wrongful death is truly a statutory claim and we should live and die by the statute.

   3. OJ case: Nicole Simpson’s family brought wrongful death and survival action. Survival: She couldn’t recover for emotional distress b/c of CA law. Family sued for damage to personal property and won $150 for the dress she was wearing. Wrongful death: much bigger award because she had been supporting the parents and the kids.

10. FRAUD [Gilbert 240]

1. First, analyze whether the K has been affirmed by accepting benefits after discovery of the fraud, suing for damages, etc. If so, establish the ELEMENTS of the tort:

1. Misrepresentation of fact by D (or active concealment. Non-disclosure is usually not actionable w/o special knowledge). [Gilbert 242]

   1. Scienter: actual knowledge, reckless disregard for truth or sometimes negligent misrepresentation. [Gilbert 243]

   2. Intent to induce reliance

   3. Materiality/Justifiable reliance: is it (1) a material fact and (2) likely to induce an objectively reasonable person

   4. Actual reliance: causal element (but for misrepresentation, P would not have entered into K) [Gilbert 244]

   5. Damages: must have pecuniary loss.

1. Compensatory damage measure:[Gilbert 246]

1. Benefit-of-the bargain: K school of thought. Sale of goods are governing by the UCC using this measure and includes incidental and consequential damages.

   1. Out-of-Pocket Rule: Tort school of thought.

1. Buyer breach: OOP Costs + damages proximately resulting from the fraud. [Gilbert 248]

1. Sometimes consequential damages are recoverable.

2. No recovery for mental distress [Gilbert 247]

3. Punitive damages may be recovered where fraud is intentional and malicious.

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