A.        What Is “Wrongful Death”?

“Wrongful death” is a legal term for a civil action to recover damages for the death of family member that was caused by some misconduct of another person or corporation.  The departed is referred to as the decedent.  The decedent’s legal interests are represented by either an executor or an administrator.  An executor is a person identified and selected by the decedent in his or her will.  An administrator is a court appointed personal representative when the will is silent on the issue or if there is no will.  Either way, the personal representative is the authorized person in charge of the decedent’s estate. 

A decedent’s “estate” is the legal continuation of a living person after death.  The term itself does not connote wealth.  Some estates have many assets (and liabilities) that must be accounted for and distributed to the heirs at law and legal beneficiaries.  Most estates have only a few assets, one of which may be a wrongful death claim in the event that the death was legally caused by some negligent, grossly negligent, or even intentional act or omission. 

The most common wrongful death claims arise out of motor vehicle accidents, defective products, medical malpractice and construction and industrial accidents.  Massachusetts wrongful death law is designed to allow a decedent’s estate to bring a legal action to recovery the monetary value of the loss of the decedent to his or her legal beneficiaries, which usually include a spouse, children or next of kin.

B.        Massachusetts Wrongful Death Statute.

The legal cause of action for wrongful death was created by statute.  As odd as it may seem, at common law there was no legal remedy for the death of a family member.  The first Massachusetts wrongful death statute was enacted in 1840 by the Legislature and has been amended many times up to its present version.

Where applicable, the Massachusetts wrongful death statute compensates the legal beneficiaries of an estate for the loss of the decedent.  This is referred to as a loss of consortium type of recovery in which the measure of damages is the loss to certain identified family members of the decedent’s care, comfort, companionship and support.  This should be distinguished from a separate type of recovery under the Massachusetts survival statute which focuses on the decedent’s own personal damages such as conscious pain and suffering or disability between the time of injury and the time of death.

The basic principles of wrongful death liability are set forth in G.L. c. 229, § 2 which states:

A person who (1) by his negligence causes the death of a person, or (2) by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (3) operates a common carrier of passengers and by his negligence causes the death of a passenger, or (4) operates a common carrier of passengers and by his willful, wanton or reckless act causes the death of a passenger under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted, or (5) is responsible for a breach of warranty arising under Article 2 of chapter one hundred and six which results in injury to a person that causes death, shall be liable in damages.

Thus, the statute allows recovery for death resulting from negligence, breach of warranty and reckless or intentional conduct.  Proof of more aggravated wrongdoing than simple negligence triggers the possibility of punitive damages against the defendant.

C.        Parties To A Wrongful Death Action.

1.         The Plaintiff(s).

The only party that can bring a wrongful death suit is the administrator or executor of the decedent’s estate.  This representative brings the action to enforce the rights of the estate and the statutory beneficiaries.  The beneficiaries may not sue in their own names for any damages resulting from wrongful death.  The representative must be formally appointed to the position by the probate court for the county in which the decedent last resided prior to the time of death.

Typically the estate representative is determined in one of two ways.  Either there was a will that named the specific person whom the decedent wanted to be appointed or there was no will (or the will was silent on the issue).  In the latter situation, the surviving family members will usually agree on someone trustworthy like a family head or an attorney.  There are rare challenges to the appointment of a representative, but when they occur the dispute is resolved in the probate court. 

There can be two or more representatives appointed as co-executors or co-administrators.

The probate appointment process can sometimes takes several months.  In some circumstances, it will be necessary to file suit before the actual appointment of the appropriate personal representative is completed.  This happens when critical evidence needs to be secured and the only means to do so is through the filing of suit.  This can also happen where the statute of limitations is about to run and the complaint needs to be filed in a timely manner.  Either way, the representative can petition the probate court for a temporary appointment for purposes of bringing the suit.

2.         The Defendant(s).

A wrongful death action may be brought against any person or corporation who causes the death of a person, whether by negligent or intentional acts or omissions or by breach of a warranty. 

3.         The Decedent.

In virtually every wrongful death case, the decedent was a living, breathing person at the time of the injury that caused the death.

In some cases, the decedent was a fetus killed by some injury or trauma to the mother.  A wrongful death action may be brought to recover for the death of a fetus that was “viable” at the time of the injury but is later miscarried or stillborn.  A fetus is considered viable in Massachusetts generally at 22 weeks of gestation, though this can vary depending on a variety of biological and genetic factors unique to each mother and fetus.  There can be no wrongful death claim where the fetus is injured before the time of viability and is miscarried or stillborn.

4.         The Beneficiary(ies).

General Laws c. 229, § 2 provides that the damages recovered shall be for the benefit of the persons entitled to receive them pursuant to G.L. c. 229, § 1.  The beneficiaries as set out in G.L. c. 229, § 1 are the spouse and children of a married decedent, or the next of kin of an unmarried decedent.  The statutory beneficiaries set out in G.L. c. 229, § 1 are exclusive, and no other relatives may share in the recovery.  Thus, where the decedent is survived by a spouse, the decedent’s parents have no right of recovery, even though they would be beneficiaries if their child were unmarried.  Under these rules, when an unmarried decedent, either child or adult, is survived by parents, the siblings are not next of kin for purposes of the wrongful death recovery. An adopted relative should be permitted to recover if he or she is a member of the appropriate class, as should what used to be called an “illegitimate” relative.

D.        Defenses To Wrongful Death Claims.

1.         Statute of limitations.

General Laws c. 229, § 2 permits the executor or administrator to bring a wrongful death action “within three years from the date of death, or within three years from the date when the deceased’s executor or administrator knew, or in the exercise of reasonable diligence, should have known of the factual basis for the cause of action.”  This last phrase – “should have known” – refers to the so-called discovery rule which can extend the time for filing a wrongful death (or most other types of personal injury claims) beyond the three year time limit.  Under the discovery rule, the three year time period does not begin to elapse until the date when it should have become reasonably apparent that the death was caused by some wrongful conduct of the defendant(s).  Usually, this occurs on or about the date of the accident or the date of death, such as in a fatal motorcycle accident collision.  In that case, the date of death roughly coincides with reasonably available information as to who caused it and who was at fault.  Sometimes though, like in some medical malpractice cases, the cause of or responsibility for a patient’s death may not become apparent for years after the death.

The three-year limitations period can also be “tolled”, that is delayed, where there are minor beneficiaries until such children reach the age of majority (which is 18 years in Massachusetts).  The limitations period is also tolled where a beneficiary is incapacitated by mental illness.  In some circumstances, fraudulent concealment of evidence by a defendant will also toll the statute of limitations in a wrongful death case. 

2.         Statute of repose.

General Laws c. 260, § 2B creates a strict six-year statute of repose for improvements to real property.  The statute of repose requires that any personal injury actions (including those for wrongful death) caused by an improvement to real property must be filed within six years from the date of the completion of the improvement.  There is no tolling of time under the statute of repose.  Nor is there a discovery rule.  The statute of repose is very strict and meant to protect construction related businesses that improve real property from open-ended periods of legal liability for their work.  The statute of repose can bar wrongful death cases even if they are brought within three years of the death or the accrual of the cause of action but after six years following the completion of the improvement.

Similarly, G.L. c. 260, § 4 sets forth a seven-year statute of repose for medical malpractice cases including those for wrongful death.  Thus a wrongful death claim would be barred if not filed within seven years of the negligent act.

3.         Comparative negligence.

The comparative negligence statute, G.L. c. 231, § 85, specifically permits this defense in wrongful death cases.  According to the statute, “any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made.”  This rule requires reduction of any wrongful death recovery by the percentage of negligence attributable to the decedent.  And if the jury determines that the decedent was more negligent than the defendant in causing the death, then the estate is barred from any recovery.

As in any other case, the defendant bears the burden of proving the decedent’s negligence and its causal relation to the injury or death.  The decedent is presumed to have exercised due care until proven otherwise.  If the decedent’s own negligence is the sole cause of his death, the beneficiaries may not recover. 

In a product liability case of wrongful death, comparative negligence of the decedent is not a defense to an action based on breach of warranty.

4.         Causation.

When there is a significant passage of time between the date of injury and the date of death, a defendant may be able to present evidence, medical or otherwise, that the death was not legally caused by the remote injury.  This issue can crop up in suicide death cases where the injured person becomes extremely depressed as a result of the injury and, tragically, takes his own life weeks, months, or even years after the initial injury.

5.         All other defenses still applicable.

All other underlying defenses are generally still available to a defendant as though the case did not involve a fatality.  So, a defendant motorist can still argue the defense of emergency, or a defendant physician can still argue that she complied with the acceptable standard of care in performing a laparoscopic surgery, whatever the case may be.

6.         Remarriage.

Some people wonder if remarriage of the surviving spouse bars him or her from recovery in a wrongful death claim.  Though the question has never been explicitly decided by a Massachusetts court, the prevalent view is that the relationship is unique and is not replaced by a new spouse.  For this reason, evidence of remarriage or some dating relationship should be inadmissible and should not bar recovery.  The question, though, becomes closer when the surviving spouse also seeks to recover for the loss of reasonably expected net income and is actually receiving more income from the new spouse.

D.        Damages Recoverable For Wrongful Death.

1.         Reasonable expected net income.

The beneficiaries of a decedent’s estate are entitled to recover the “ reasonably expected net income” that they would have received from the decedent but for the death.  Reasonably expected net income is not the total amount of lost earnings caused by the decedent’s death.  It is the amount of earnings that the decedent would have given to the particular beneficiary.  The calculation of reasonably expected net income generally starts with the decedent’s projected earnings over his expected working career and then appropriate deductions (like income taxes, living expenses, etc.) are made to arrive at the amount the beneficiary would actually have received from the decedent.

This recovery is not an asset of the decedent’s estate that is to be divided up among all of the decedent’s heirs at law and beneficiaries.  This recovery is individual to each particular beneficiary.

2.         Loss of consortium damages.

In addition to the loss of reasonably expected net income, the wrongful death statute, G.L. c. 229, § 2, enumerates various compensable aspects of the interfamilial relationship, such as care, comfort, support, advice and companionship.  Together, they are intended to compensate for the loss of the relationship between the decedent and each of the beneficiaries.

Massachusetts courts recognize that the loss may differ among various beneficiaries depending on the nature of their relationship with the decedent.  Thus, two sibling beneficiaries may not necessarily share equally in a wrongful death recovery if one of them grew apart from the decedent and rarely had any contact or connection with the decedent.  In making an award of damages, the factfinder should consider the joint life expectancy of the decedent and each beneficiary.

This recovery is also not an asset of the decedent’s estate.

3.         Conscious pain and suffering.

The survivor statute, set forth in General Laws c. 229, § 6, permits recovery for the decedent’s conscious pain and suffering between the time of the injury and the time of the death.  This recovery is an asset of the estate and is divided among the statutory beneficiaries in accordance with the terms of the decedent’s will, if one exists, or else the law of intestate succession.

The claim for conscious pain and suffering is essentially what would have been the decedent’s own claim for personal injuries had he or she lived.  Thus, the recoverable damages include all the normal elements of physical pain, emotional suffering, disfigurement, impairment, loss of bodily function, embarrassment, humiliation or other mental anguish.

The plaintiff bears the burden of proving that the decedent was conscious during the period of pain and suffering following the injury but before death.  In some cases, a lay witness’s description of the decedent’s physical condition will be sufficient to permit the jury to find conscious pain and suffering.  However, if the decedent’s post-incident condition was comatose with only involuntary types of bodily movements, medical testimony may be necessary to establish the decedent’s state of mind. 

4.         Medical expenses.

A claim for medical and hospital expenses survives the death of the injured person, and these items are generally recoverable in a wrongful death action as part of the decedent’s estate.

5.         Funeral and burial expenses.

Funeral and burial expenses are recoverable under the wrongful death statute.

6.         Punitive damages.

If the decedent’s death was caused by the malicious, willful, wanton or reckless conduct or by the gross negligence of the defendant, then punitive damages can be awarded in order to punish the wrongdoer.  This is over and above the primary purpose of the wrongful death statute which is to reimburse the beneficiaries and the estate for the loss of the decedent.  Theoretically, there is no cap or limit to the amount of a punitive award against a defendant.

In contrast to mere negligence (which is the failure exercise reasonable care in the discharge of a legal duty to another), gross negligence is a deliberate indifference to the discharge of one’s duty to another.  It is a conscious disregard for the safety of another to whom a duty of care is owed.  Gross negligence would include a pharmaceutical company’s intentional disregard of poor test results on a new drug product.  Gross negligence would be a motorist speeding through a red light talking on a cell phone.

E.         What To Do.

Whenever a family member has been killed by some wrongful conduct of another, there are a few things that must be done immediately to protect the decedent’s legal estate and the beneficiaries of the estate and heirs at law.  Evidence must be preserved, witnesses identified, photographs taken and the right kind of legal counsel must be consulted.  Whether a wrongful death claim is ever asserted is a question for down the road.  For now, preliminary steps must first be taken in order to make an informed decision about the legal options.

1.         Consult the right kind of legal counsel.

Wrongful death claims are very serious matters, especially to the beneficiaries of a loved one’s estate and/or to the decedent’s heirs.  The wrongful death of a family member can strike right at the heart of a family and their rights need to be protected and, if warranted, vindicated in a court of law.

In addition, there are many pitfalls and traps for the unwary plaintiff’s attorney who is unskilled in this specific area of practice.  Wrongful death cases should only be entrusted to skilled trial attorneys who exclusively represent plaintiffs and who have a successful track record with such claims.  These are not cases for novices learning the ropes.  And this is not the arena for even an experienced jack-of-all-trades lawyer like a general practitioner.  You should only confer with an attorney who regularly handles high stakes wrongful death cases. 

For those unfortunate enough to suffer the loss of a loved one, their misfortune can be compounded by selecting the wrong attorney.  The major mistake people make is to contact the first personal injury law office they come across, whether it’s on television or on a billboard or on a busy street front.  Those types of law firms generally handle a high volume of small cases like everyday motor vehicle accidents.  Though they may advertise themselves as sophisticated high-end trial attorneys, chances are they are not.  In reality, they will simply refer your wrongful death case to another attorney in exchange for a referral fee.  Avoid this mistake and cut out the middle man by doing some research and finding the right king of legal counsel the first time around.  This will make all the difference for your case.

2.         Preserve the evidence.

In any death case, important evidence must be identified and preserved.  If important evidence is lost, tampered with or altered in any way after an accident, there will likely be some negative consequence when it comes time to prove the case at trial.  The preservation of evidence can be accomplished by placing the physical items in a safe, secure location until legal counsel can arrange for its storage.  Numerous photographs should be taken and also passed along to counsel. 

3.         Identify witnesses.

It is also important to document the names and contact information for any witnesses.  The witness list is not limited to those who actually saw or heard the accident occur.  It also includes anyone learned about the accident’s details after-the-fact like such as family members, co-workers, emergency medical technicians, nurses or doctors.  Important witnesses can also include pre-incident witnesses.

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