Page 64 - Demo

60
Insights SPRING2021
In an action brought for wrongful death or loss of consortium, the contributory fault of the decedent or injured person shall be imputed to the claimant in that action. RCW 4.22.020.
Joint and Several Liability & Contribution
Generally, an at-fault defendant will have severable liability. RCW 4.22.05 & 4.22.070. When more than one tortfeasor is responsible for damages, Washington will treat at-fault tortfeasors jointly and severally: (1) if the at-fault parties were tortiously acting in concert; or (2) the tortfeasor was an agent of servant of the party; or (3) if the plaintiff was entirely not at fault. Id.
Where joint tort liability still exists, it permits the plaintiff to recover the entire judgment amount from each defendant. The rule of contribution allows any defendant required to pay more that their proportionate share to have a claim against the other jointly liable parties for the excess. Washington apportions the amount of contribution (if any) among defendants based on the comparative fault of each defendant. RCW 4.22.040.
Damages & Loss of Consortium
Washington courts apply the traditional rule of damages in tort cases – a plaintiff is entitled to that sum of money that will place him/her in as good a position as he/she would have been in but for the defendant’s tortious act. Pugel v. Monheimer, 83 Wn. App. 688, 692, 922 P.2d 1377 (1996). The amount of damages need not be proved with mathematical exactness, but the fact of loss must be established with sufficient certainty to provide a reasonable basis for estimating loss. Eagle Point Condominium Owners Ass’n v. Coy, 102 Wn. App. 697, 9 P.3d 898 (2000). However, damages will not be awarded where the evidence of injury is insubstantial or speculative. Sherrell v. Selfors, 73 Wn. App. 596, 871 P.2d 168 (1994).
Punitive damages are not available in Washington absent express legislative authorization. Dailey v. North Coast Life Ins. Co., 129 Wn.2d 572, 574, 919 P.2d 589 (1996).
Under RCW 4.24.010, which relate to the claims for the wrongful death of a child, parents or legal guardians who regularly contribute to the support of his/her minor child, and parents or legal guardians who had significant involvement in the life of an adult child may maintain an action as a plaintiff for the injury or death of a child so long as the child did not have a spouse, state registered domestic partner, or children. RCW 4.24.010(1) and (3). “Significant involvement” is defined as “demonstrated support of an emotional, psychological, or financial nature within the parent-child relationship, at or reasonably near the time of death, including either giving or receiving emotional, psychological, or financial support to or from the child.” Based on this “definition” alone, the question of “significant involvement” would necessarily be a question of fact for a jury. (RCW 4.24.010(1).
As to damages, parents can seek damages for the child’s health care expenses, loss of the child’s services, loss of the child’s financial support, and other economic losses, including but not limited to the loss of love and companionship of the child, loss of the child’s emotional support, and for injury to or destruction of the parent-child relationship. RCW 4.24.010(2).
In Washington, a child may bring an action for loss of parental consortium. Ueland v. Pengo Hydra-Pull Corp., 103 Wn. 2d 131, 691 P.2d 190 (1984). A child beyond the age of majority may bring a claim for loss of consortium, however, whether a child beyond minority suffers damages is a question of fact. Id. Further, the Washington Supreme Court has held that a child’s claim should be joined with the injured parent’s underlying claim. Id.