Wrongful Death Statute & Survival of Civil Actions Statute

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August 16, 2009

Connecticut's wrongful death statute, found at Conn. Gen. Stat. § 52-555, provides for the recovery of "just damages," medical expenses and funeral expenses by the executor or administrator of an estate for injuries resulting in death. The statute also requires that the executor or administrator bring the suit within two years of the date of death and five years of the date of the injury. The estate itself may not bring a wrongful death action.[1]

No action lay at common law for causing death.[2] The statutes permitting actions for wrongful death are in derogation of the common law, and therefore are strictly construed.[3] Not every death gives rise to a cause of action. If the decedent had no right of action, none survives to his administrator. The statutory right of action belongs, in effect, to the decedent. Thus, a cause of action for wrongful death may not be maintained unless the death was truly wrongful in that it resulted from the negligence, recklessness, carelessness or other actionable tort of the defendant.[4]

The wrongful death statute must be read in conjunction with the Survival of Civil Actions Statute. Conn. Gen. Stat. § 52-599 provides that a right to any civil action is not lost upon the death of the plaintiff. The statute provides for the executor or administrator to substitute for a deceases litigant in the prosecution or defense of a claim or lawsuit.

This statute prevents the cause of action from being lost under the common-law rule that the death of the plaintiff extinguishes the cause of action.[5] But for such a statute, the common-law rule providing that a cause of action abates upon the death of the plaintiff, either due to a wrongful act of the defendant or natural causes would remain the law in Connecticut.[6] However, the Survival of Civil Actions statute does not permit the survival of any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants.[7] However, even actions dependent upon the testimony of a decedent (such as a slander action), may continue through use of the Dead Man's Statute.[8]

The Wrongful Death Statute, § 52-555, creates a remedy for a wrongful death, overturning the common-law rule that no action for wrongful death may be maintained. The Survival of Action Statute, § 52-599, creates neither a cause of action nor a remedy, but establishes the procedure allowing for the continuation of an action despite the death of a party. The Survival of Action Statute pertains to any kind of civil suit originally commenced by a plaintiff who thereafter dies, or brought against a defendant who thereafter dies.

The Wrongful Death Statute permits recovery for the tortiously caused death of any person "whether instantaneous or otherwise."[9] Conn. Gen. Stat. § 52-555 specifies two categories of damages recoverable for a wrongful death. The first category includes the expenses the decedent and the estate suffered as a result of the wrongful act. The estate may thus recover the cost of reasonably necessary medical, hospital and nursing services, and funeral expenses. The statute also permits the recovery of "just damages." These frequently comprise the greater portion of the wrongful death recovery and consist of such elements as the decedent's pain and suffering, loss of life itself and loss of the enjoyment of life's activities. Losses or damages suffered by beneficiaries of the estate of decedent's dependents do not constitute "just damages" under the statute.[10]

"Just damages" for wrongful death include compensation for the very loss or deprivation of the life itself. The fact that the decedent has lost his life, without consideration of any other circumstances or facts involving the decedent's life, entitles him to substantial damages.[11] The courts have wrestled with the definition of this element of damages. However, courts do not fully equate loss of earning capacity with loss of the life itself, because loss of life is a non-pecuniary type of damages for which, like pain and suffering damages, no money standard can apply.

[1] See Isaac v. Mt. Sinai Hospital, 3 Conn. App. 598, 600 (1985).

[2] See Connecticut Mut. Life Ins. Co. v. New York & N. H. R. Co., 25 Conn. 265 (1856) (The death of a human being, whatever may be its consequences in a pecuniary or in any other aspect, is not an actionable injury).

[3] Grody v. Tulin, 170 Conn. 443, 448 (1976).

[4] See Nolan v. Morelli, 154 Conn. 432, 435 (1967) (The plaintiff in this suit under our wrongful death statute, stands in the shoes of the decedent and can recover only if the decedent, had his injuries not proven fatal, could himself have recovered. Thus, the question to be determined is whether a cause of action is stated which the decedent himself, had he lived, could have maintained).

[5] Doucette v. Bouchard, 28 Conn. Supp. 460 (1970).

[6] Gorke v. Le Clerc, 23 Conn. Supp. 256 (1962).

[7] Conn. Gen. Stat. § 52-599(c)(2).

[8] Conn. Gen. Stat. § 52-172.

[9] Conn. Gen. Stat. § 52-555(a). See Broughel v. Southern New England Tel. Co., 72 Conn. 617, 623 (1900) (the real cause of action arises from the wrongful act; death is but the effect or consequences of the act. It makes no difference as to the liability of the wrongdoer, whether the complete effect of his act instantly follows the act, or follows after some short interval of time).

[10] Sanderson v. Steve Snyder Enterprises, 196 Conn. 134 (1985) (error to allow introduction of evidence that decedent's wife had remarried by the time of trial, since remarriage had no relationship to "just damages" recoverable by decedent's estate under Conn. Gen. Stat. § 52-555).

[11] See Broughel v. Southern New England Tel. Co., 72 Conn. 617, 623 (1900) (primary purpose of the wrongful death legislation is to make some compensation in money for mere loss of life).