Wrongful Death

March 23, 2012

Who Has The Right To Bring A Wrongful Death Claim Arising From a Truck Accident in Tennessee?

Generally speaking, these are the rules for who may file a wrongful death lawsuit inTennessee:

A lawsuit for the death of a husband can be filed by his wife, his executor or the administrator of his estate.
A lawsuit for the death of a wife can be filed by her husband, her executor, or the administrator of her estate.
If a person is single at the time of his or her death, the lawsuit can be maintained by his or her adult children or, if there are no adult children, by his or her parents. The lawsuit can also be filed by an executor or administrator.
If a person is a single minor at the time of death, the lawsuit can be maintained by his or her parents. If the parents are divorced, special rules apply. The lawsuit can also be filed by an administrator.
If the decedent did not leave a spouse or child and was predeceased by his or her parents, the law permits a sibling to file suit. The lawsuit can also be filed by an executor or administrator.
There are exceptions to these general rules. An experienced wrongful death lawyer can explain whether an exception is applicable if he or she is advised of the nature of the family situation.

It is rarely necessary to open an estate in Tennessee for the sole purpose of filing a wrongful death lawsuit. Thus, we rarely recommend that an estate be opened for the sole purpose of filing a lawsuit.

February 29, 2012

Alabama Holds That Wrongful Death Law Protects Unviable Fetus – Tennessee Law Does Not

by The Law Offices of John Day, P.C.

Two recent cases from the Alabama Supreme Court hold that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb.

In Hamilton v. Scott, No. 1100192 (Ala. Feb. 17, 2012, Amy Hamilton alleged that several defendants negligently caused the death of the child she was carrying in utero. After discovery, defendant moved to dismiss, arguing that Alabama law required that the fetus had to viable outside the womb before the mother could maintain a wrongful death lawsuit. The case was dismissed.

The Alabama Supreme Court reversed, citing the recent decision in Mack v. Carmack, No. 1091040 (Ala. Sept. 9, 2011) that raised the same issue. This is the holding in Mack, re-affirmed in Hamilton:

September 14, 2010

Wrongful Death of Children in Foster Care

by The Law Offices of John Day, P.C.

The first law review article on the topic of "Wrongful death of children in foster care" has recently been published in the University of La Verne Law Review, 31(1), 25-44. The article is co-authored by Daniel Pollack, Professor, School of Social Work, Yeshiva University, and a frequent expert witness in child welfare and foster care cases, and Gary L. Popham, Jr., an attorney in Arizona.

The article surveys wrongful death cases filed in various states involving the death of children in foster care. Part I discusses wrongful death claims in general, and Part II discusses foster care. Part III discusses specific cases involving claims of wrongful death filed in various states which arose from the death of a child in foster care. Lastly, Part IV briefly reviews the key aspects of foster care wrongful death cases.

For a copy of "Wrongful death of children in foster care" please contact Professor Pollack at dpollack@yu.edu.

April 29, 2010

Wrongful Death Claims in Tennessee

by The Law Offices of John Day, P.C.

When a person dies as a result of someone else’s negligence, Tennessee law permits only certain people to assert a claim to recover damages for the death. This article does not discuss who receives the damages awarded by settlement or judgment of the case, but only who has the right to file suit.

Spouse

If the decedent was married, his or her spouse normally has the highest right to pursue the wrongful death claim. A court may deny the surviving spouse the right to bring a wrongful death claim only if the spouse is not legally competent (that is, has some sort of mental problem that would affect his or her ability to bring and pursue a lawsuit), has shown that he or she cannot be trusted to bring the claim (for example, the parties were in a bitter divorce fight at the time of the death), or some other factor (for example, the parties had not lived together for years at the time of the death but had never divorced).

December 10, 2009

Debt Collector Blamed in Wrongful Death Lawsuit

by The Law Offices of John Day, P.C.

Dianne McLeod says a debt collector killed her husband Stanley.

According to CNN, Ms. McLeod alleges that " her mortgage company, Green Tree Servicing, for the wrongful death of her husband. McLeod said she thinks he would be alive if not for the stress caused by Green Tree’s debt collectors. She said they sometimes called up to 10 times a day and also called the McLeods’ neighbors." Stanley , a heart patient died of heart failure.

The CNN story does not reveal the cause of action being employed in the Florida litigation. In Tennessee, the Supreme Court has ruled that debt collectors may be liable for damages caused if they engage in intentional infliction of emotional distress, as known as the tort of outrageous conduct. The case applying this tort to debt collectors is Moorhead v. J.C. Penny, Co. 555. S.W. 2d 713 (Tenn. 1977). Whether conduct is "outrageous" and whether the conduct caused an injury or death is very much dependent on the facts.

April 29, 2009

Work Life Expectancy Tables

by The Law Offices of John Day, P.C.

Economists in personal injury cases and wrongful death cases often consider work life expectancy tables in calculating future economic losses.

As explained on this website, "[m]any laypersons (and some experts) assume that [worklife expectancy] is the number of years until the person turns 65, the historic age for full social security retirement. This assumption is incorrect for two basic reasons: many people retire at different ages (usually earlier) and the average person has some breaks in employment (perhaps involuntary) before retirement."

The factors taken into account in determining work life expectancy are age, gender, education and level of work disability.

September 28, 2006

Vermont Supreme Court Allows Wrongful Death Recovery for Death of a Sibling

by The Law Offices of John Day, P.C.

The Supreme Court of Vermont has held that the sibling of a decedent may maintain a wrongful death suit seeking damages for loss of companionship where the sibling is the "next of kin."

The Vermont statute provides that in a wrongful death case the court jury may "give such damages as are just, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin or husband and next of kin, as the case may be." 14 V.S.A. § 1492(b). The Court had previously held that "pecuniary injuries are not limited to economic losses, but may include recovery for loss of child or spouse’s companionship, as well as loss of care, nurture, and protection."

In Dubaniewicz v. Houman, No. 2004-306 (September 15, 2006) extended its previous interpretation of the statute and held that plaintiff, as next of kin of the decedent, "may obtain such damages to the extent that he can prove them by submitting evidence of the physical, emotional, and psychological relationship between himself and the decedent."

May 23, 2006

Response to Motion in Limine to Exclude Economist’s Testimony

by The Law Offices of John Day, P.C.

This is a brief in response to a defendant’s motion in limine to exclude the expert witness testimony of an economist. The economist was disclosed in a wrongful death case arising out of the drowning of a three-year-old boy. The economist is expected to testify about the present value of the child’s loss of earning capacity.

Obviously, with a child so young there is very little empirical evidence to establish the child’s likely career path. The economist was asked, then, to simply address the likely present value of the child’s earnings had he graduated high school and entered the workforce, and alternatively had he graduated college and entered the workforce. We are prepared to prove the child’s likely success in life through other witnesses, to let the jury decide his probable earning capacity, and to let the economist explain how to calculate that in today’s dollars.

The Defendants moved to exclude the economist’s testimony in part because he did not have a sufficient basis on his own for the assumptions of educational achievement. The Defendants also moved to exclude his testimony because the economist’s original report did not include a deduction for personal maintenance expenses, which the Defendants’ termed as “mandatory” under the Tennessee Supreme Court’s holding in Wallace v. Couch. A careful reading of Wallace and Tennessee evidentiary law on expert witnesses demonstrates the Defendants in our case were wrong.

October 17, 2005

Gay Partner Cannot File Wrongful Death Suit

by The Law Offices of John Day, P.C.

It had to happen sooner or later.

Neil allegedly died from medical negligence in New York. His partner, John, filed a wrongful death suit, alleging and proving that he and Neil had participated in a civil union in Vermont several years earlier and insisting that he could maintain a medical negligence suit.

The Associated Press reports that a divided appellate court in New York rejected the claim, saying that a ruling allowing John to maintain the action would be “taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature.”

June 5, 2005

“Anticipatory” Wrongful Death

by The Law Offices of John Day, P.C.

Is this what a corporation does when it knowingly markets a product that it knows will kill?

No. “Anticipatory” wrongful death is what author Gregory P. Forney calls a claim for loss of earnings and consortium for someone who has arguably had his or her life expectancy shortened because of the negligence of another. In the case mentioned in Mr. Forney’s article, the male plaintiff was negligently not advised of a mass that was lung cancer and the delayed diagnosis greatly shortened his life expectancy. The still-alive plaintiff and his wife brought wrongful death claims; Mr. Forney apparently was one of the lawyers who defended the case.

The article sets forth Mr. Forney’s position on why the plaintiff should not have been permitted to seek such damages – which boil down to the fact that the plaintiff was not yet dead.