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Though the breadth of differences between state laws concerning death actions vary more considerably as related to permissible entities to bring suit than to what can be recovered, some significant outliers do exist. New York and Maryland divide death claims into separate wrongful death and survival actions, but this approach is not commonplace. Most jurisdictions consolidate such claims into a single action, though the recoverable damages are often similar nevertheless.
A few states find themselves further outside the established norm concerning death actions. Alabama’s wrongful death statute allows only recovery for economic loss, such as funeral expenses, associated with the decedent’s death. However, such statute instead permits punitive damages, placing the proof necessary to sustain an action not upon any mental or emotional anguish of the decedent, but upon the degree of culpability of the defendant.
New Jersey has taken a similar, though more mainstream approach. Like Alabama, New Jersey provides for only recovery of economic loss due to the decedent’s death, but also permits survivors to commence a separate action for negligent infliction of severe emotional distress. Again, this unique approach shifts the focus of evidence from the decedent’s mental and emotional trauma preceding death to the tangible effects of such death upon the decedent’s survivors, as well as the negligent quality of the defendant’s acts.
Cases involving death actions will often sit atop the list of a firm’s most serious and impactful cases. The differences in the law concerning these actions from state to state, while often subtle, are critically important for any tort litigator. A seemingly minor distinction as to which family member can bring such an action, or whether the decedent’s trauma or some other factor altogether, could spell the difference between a substantial recovery and dismissal. A savvy litigator can use such distinctions to more effectively litigate, and defend against, such consequential claims.
This article was a collaboration written by the following FDCC Defense Counsel Members:
• Kevin Faley at Morris, Duffy, Alfonso & Faley in New York City, NY
(assisted by his Associate Robert Whitbeck). Contact him at: kfaley@mdafny.com
• Natasha Khachatourians at Betts, Patterson Mines in Seattle, WA. Contact her at: nkhachatourians@bpmlaw.com
• Jacob Liro at Wicker Smith in Miami, FL. Contact him at: jliro@wickersmith.com
• Scott Tyler at Waters Tyler Hoffman & Scott, LLC in New Albany, IN. Contact him at: styler@wthslaw.com
• Jeff Van Volkenburg at Varner & Van Volkenburg in Clarksburg, WV. Contact him at:
jdvanvolkenburg@vv-wvlaw.com
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