CYBER BREACH FALLOUT

1 0 www.uslaw.org U S LAW
(INSERT STATE HERE)
50 STATES.
50 WRONGFUL DEATH STATUTES.
Why Where You Die
Matters (Still).
Paul F. Ebeltoft and Olivia Krebs
Ebeltoft . Sickler . Lawyers
This past summer, Justice Kennedy, delivering
the United States Supreme Court
opinion in Obergefell v. Hodges 1 upholding
the right of same-sex persons to marry,
called the identification and protection of
fundamental rights “an enduring part of the
judicial duty.” Among the privileges that
marriage now affords same-sex couples is
damages in tort suits where one partner has
been injured or killed.
We have come a long way. The common
law imported from the English system
in 18th century America prohibited anyone
from recovery for the death of another,
however wrongful. “[I]n civil Court, the
death of a human being could not be complained
of as an injury.” 2 When the English
Colonies became the new United States,
some states ignored the English rule, allowing
money damages where masters, husbands
and fathers sued for recovery of the
economic loss suffered through the deaths
of servants, wives or children. Other states,
while allowing suits arising out of injury by
negligent conduct, prohibited suits for
damages when someone died as a result.
Putting aside the bad public policy that encouraged
negligent parties to “finish the
job,” rather than just injure someone, the
basis upon which a court might grant relief,
if at all, for a wrongful death was hard to decipher.
With differences among the states
proliferating, in early America where you
died mattered.
Beginning in the mid-19th century, legislatures
responded to the chaos by adopting
wrongful death statutes. Each state harmonized,
or created, legislatively what the courts
had not. The statutes shared commonalities:
defining the length of time a survivor had in
which to file a wrongful death lawsuit, specifying
the types of recoverable damages and,
importantly, delineating who could benefit
from the proceeds of the lawsuit.
From about 1840 onward, states generally
adopted wrongful death statutes that
protected close family: surviving spouses,
children, and, sometimes, parents. The
commonality was that legislatures abandoned
earlier court rulings that compensated
males for loss of services they, as
surviving masters, husbands or fathers endured
when a slave, a wife or a child was
lost to the male’s small economic unit.
Instead, lawmakers created causes of action
allowing recovery for those who were
economically dependent on the person
who died. Not surprisingly, the initial
scope was narrow. Women and children
could recover for the deaths of husbands
and fathers because of their economic dependency
arising from the duty that a
male owed to support his wife and children.
Men, on the other hand, could
claim no such right for the loss of a wife or
child.