Law Commons^™

A Better Interpretation Of The Wrongful Death Act, Dennis M. Doiron

Maine Law Review

A viable fetus is not a person under the wrongful death act, declared the Maine Law Court in a controversial decision in 1988. To reach this conclusion, the court employed one traditional and one new rule of statutory interpretation, and one traditional rule of law. The traditional rule of interpretation-that the wrongful death act is to be strictly construed because it is in derogation of the common law-dates from the earliest wrongful death cases heard by the court. The new rule of interpretation-that the death statute must be harmonized with the Maine Uniform Probate Code-derives from the enactment of the …

Issues Complicating Rights Of Spouses, Parents, And Children To Sue For Wrongful Death, Dale Katzenmeyer

Akron Law Review

There are two types of wrongful death statutes, the personal representative type, and the beneficiary type. With the personal representative type, the action is brought by the personal representative of the deceased on behalf of all persons statutorily eligible to benefit from the action. In the beneficiary type of statute, the statutorily authorized beneficiaries are joined together and bring the action in their own names.

Irrespective of the type of statute, the statutes seem to name clearly the persons who are acceptable beneficiaries. These beneficiaries, at a minimum, include spouses, parents and children. The difficult issues arise when the plaintiff …

Person V. Potential: Judicial Struggles To Decide Claims Arising From The Death Of An Embryo Or Fetus And Michigan's Struggle To Settle The Question, Dena M. Marks

Akron Law Review

“Death is well understood; it’s life that isn’t.” We recognize death, but state by state, courts struggle to understand life when called on to determine whether their states’ wrongful death acts apply after the death of an embryo or fetus. These struggles arise because, for the most part, state legislatures have failed to clarify whether a cause of action may be maintained under their wrongful death acts for the death of an embryo or fetus. This failure has lead to inconsistent and unfair results, often allowing the tortfeasor to benefit from causing the greater harm of death, when the tortfeasor …

Concubinage And Union Libre: A Historical Comparison Of The Rights Of Unwed Cohabitants In Wrongful Death Actions In France And Louisiana, Robert F. Taylor

Georgia Journal of International & Comparative Law

No abstract provided.

No Adequate Recompense For Destruction: The Constitutionality Of The New York Medical Malpractice Statute Of Limitations As Applied To Misdiagnosis Of Latent Disease, Lillian M. Spiess

Touro Law Review

No abstract provided.

Wrongful Death And Survival Actions For Torts In Violation Of International Law, Alastair J. Agcaoili

San Diego Law Review

This Article aims to make sense of this neglected area of ATS law. I contend that the salient issue in these deceased-victim cases is not whether the nonvictim plaintiffs have standing to sue but rather whether they have a viable cause of action in the first place. Standing and cause of action concepts have an uneasy relationship in law. Although the distinction between constitutional standing and cause of action inquiries is well established, the division is less clear where, as here, standing doctrine is used to define a plaintiff’s eligibility to bring suit. Indeed, reliance on standing terminology in this …

Steed V. Imperial Airlines, Clay Plotkin

Pepperdine Law Review

No abstract provided.

California's Response For Wrongful Death Of A Stillborn Fetus: Justus V. Atchison, Phyllis A. Dow

Pepperdine Law Review

No abstract provided.

Aviation Litigation: Federal Preemption And The Creation Of A Federal Remedy As A Means To Extinguish The Current Confusion In The Courts, Deborah J. Olsen

Pepperdine Law Review

No abstract provided.

Lost Life And Life Projects, Sean Hannon Williams

Indiana Law Journal

This Article provides the first analysis of wrongful death damages from the perspective of individual justice accounts of tort law. There is a widespread belief that wrongful death damages are incoherent. Currently, tort law responds only to the harms of the decedent’s living relatives. Drawing on deterrence rationales, Cass Sunstein, Eric Posner, and others have recommended altering these damage awards so that they respond to the harms of the decedent herself by providing “lost life” damages. This Article offers a different and powerful new foundation for lost life damages rooted in corrective justice and its main competitor, civil recourse. At …

The "Enlightened Barbarity" Of Inclusive Fitness And Wrongful Death: Biological Justifications For An Investment Theory Of Loss In Wycko V. Gnodtke, Ryan Shannon

University of Michigan Journal of Law Reform

Wrongful death laws should permit and encourage courts and juries to consider the survivors' investment in decedents when determining wrongful death damages, given new biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan's courts in the early 1 960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and sociobiology, the investment theory of recovery accords with the goals of corrective justice as …

Medical Malpractice Law, Kathleen M. Mccauley, William F. Demarest Iii

University of Richmond Law Review

No abstract provided.

Loss Of Potential Parenthood As A Statutory Solution To The Conflict Between Wrongful Death Remedies And Roe V. Wade, Erica Richards

Washington and Lee Law Review

No abstract provided.

Denial Of Recovery To Nonresident Beneficiaries Under Washington's Wrongful Death And Survival Statutes: Is It Really Cheaper To Kill A Man Than To Maim Him?, Jonathan James

Seattle University Law Review

Although courts have expressed repugnance for discrimination against nonresidents as far back as the early 1900s and recognized that it was out of date even in their time, it is the refusal of Washington courts to question the constitutionality of such legislative enactments which has allowed this injustice to continue unabated for almost 100 years. It is time that the courts in Washington finally realize that such discriminatory legislation must succumb to the protections provided by both the United States and Washington Constitutions and find these statutes unconstitutional. To do otherwise would allow a tortfeasor an “undeserved and morbid windfall” …

Torts: Nealis V. Baird: The Oklahoma Supreme Court Extends Fetal Rights In Wrongful Death Suits But Leaves Important Questions Unanswered, Cory Hicks

Oklahoma Law Review

No abstract provided.

Survivability Of Noneconomic Damages For Tortious Death In Washington, Steve Andrews

Seattle University Law Review

The focus of this Comment will be the 1993 amendment to Washington's general survival statute. In particular, the goal is to interpret how noneconomic damages for tortious death are to be treated under the new survival statute and to answer the question of what noneconomic damages are available to the victim's survivors. Because of Washington's complex statutory scheme, each of five potentially applicable statutes will be examined for available noneconomic damages, the survivability of these damages, the beneficiaries of the action, and possible duplication of damages. In answering these questions, this comment will also address the issue of survivability of …

Kentucky Law Survey: Torts, Ronald L. Green

Kentucky Law Journal

No abstract provided.

Holsten V. Massey: The Coexistence Of The Public Duty Doctrine And The Governmental Tort Claims And Insurance Reform Act, Stephanie M. Bonnett

West Virginia Law Review

No abstract provided.

Torts—Wrongful Death: A Viable Fetus Is Not A "Person" Under The Arkansas Wrongful Death Statute. Chatelain V. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995)., Brenda Daugherty Snow

University of Arkansas at Little Rock Law Review

No abstract provided.

Life Begins At The Moment Of Conception For The Purposes Of W. Va. Code 55-7-5: The Supreme Court Of Appeals Of West Virginia Rewrites Our Wrongful Death Statute, Jason Cuomo

West Virginia Law Review

No abstract provided.

A Practical View Of Farley V. Sartin, Thomas J. Hurney Jr.

West Virginia Law Review

No abstract provided.

Relational And Liberal Feminism: The Ethic Of Care, Fetal Personhood And Autonomy, Joyce E. Mcconnell

West Virginia Law Review

No abstract provided.

Farley V. Sartin And Tort Claims For The Wrongful Death Of A Nonviable Fetus: Paradigms, Imponderables And Proposals, Teree Foster

West Virginia Law Review

No abstract provided.

After Farley V. Sartin: The Consequences Of Declaring A Nonviable Fetus A Person For The Purpose Of Wrongful Death, Stacie L. Lude

West Virginia Law Review

No abstract provided.

To Recover Or Not To Recover: A State By State Survey Of Fetal Wrongful Death Law, Jill D. Washburn Helbling

West Virginia Law Review

No abstract provided.

Farley V. Sartin: Viability Of A Fetus No Longer Required For Wrongful Death Liability, Robin C. Hewitt

West Virginia Law Review

No abstract provided.

Impacts Of Modern Life Support Techniques On Wrongful Death Actions Brought After Final Personal Injury Judgments, Elizabeth Clark

Seattle University Law Review

This Comment examines both the history of wrongful death actions and modern applications of law. This historical overview reveals that most courts reject the doctrinal bases of wrongful death actions. Specifically, when one has recovered on behalf of a decedent for fatal injuries, these courts tend to construe wrongful death statutes in a manner that denies statutory beneficiaries of a cause of action. To the extent that problems of finality and overcompensation are real, this Comment asserts that the remedy does not lie in misconstruing wrongful death acts so as to deny beneficiaries all recovery. Rather, the answer lies in …

Application Of The Discovery Rule To The Ohio Wrongful Death Statute, Edward J. Leonard

Journal of Law and Health

The focus of this note will be on the statute of limitations applicable to the Ohio wrongful death statute. This statute requires that any claim for wrongful death be brought within two years of the date of death. Application of the discovery rule to the wrongful death statute would allow an action to be brought within two years of discovering that the death was the result of a wrongful act.

Tort Law - The Expansion Of The Viable Fetus Wrongful Death Action - Parents' Individual Claim For Negligent Infliction Of Emotional Distress Caused By Concern For A Third Party: The Viable Fetus - Johnson V. Ruark Obstetrics, Bruce Batchelor

Campbell Law Review

This Note will examine the rationale of the Johnson decision and illustrate how a parent's claim for negligent infliction of emotional distress is a natural extension of a viable fetus wrongful death action. Also, the Note addresses why the Johnson case provides a concrete example for the policy that the business of the courts is to make precedent where a wrong calls for redress, even if lawsuits must be multiplied.

Wrong Without A Remedy - North Carolina And The Wrongful Death Of A Stillborn, Susan D. Crooks

Campbell Law Review

This comment ... presents a legal argument supporting a civil action for the wrongful death of some stillborns and suggests that a gestational age of twenty-six weeks represents an appropriate viability standard in interpreting the North Carolina wrongful death statute. It also attempts to bridge the perceptual gap between certain aspects of medical and social sciences and the law regarding the fetus. The argument in support of the twenty-six week viability standard is presented in four parts. First, this comment illustrates why the fetus now enjoys an elevated status in society. Second, it illustrates the devastating impact of a stillbirth …