Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
sentimental value of the loss.
Quiroz v. Seventh Ave. Ctr., 45 Cal. Rptr. 3d 222, 226-27 (Cal. App. 2006).
In a case not involving death, a close relative of a victim of the non-fatal personal injuries
would have a loss of consortium claim to recover for the intangible value of the lost relationship.
Does it make sense that such an action is unavailable in death cases?
Consider also injuries causing death to children. If children do not have dependents, will
there be any wrongful death action at all? This problem, among others, led to a wave of
twentieth-century statutes authorizing so-called “survival actions” in death cases:
Survival Actions
Unlike wrongful death actions, which are brought by the decedent’s relatives in their own
capacity, survival actions are brought on behalf of the decedent’s estate.
Survival actions allow the recovery of the lost income of the decedent even if there were
no people dependent on the decedent for support. They also allow pain and suffering damages for
any pain the decedent may have experienced prior to death. See David W. Leebron, Final
Moments: Damages for Pain and Suffering Prior to Death, 64 N.Y.U. L. REV. 256 (1989).
In some states, like California, the wrongful death action and the survival action are
typically joined into one case. In other states, such as Massachusetts, all cases must be brought by
the estate of the decedent, but the estate may collect and distribute damages for losses suffered by
relatives of the decedent.
Death Cases and Family Structure
If a system is to recognize tort actions in death cases, a question that must be answered is:
Who gets to sue? The answers a given society offers are revealing. Early American wrongful
death statutes, for example, typically limited damages to dependent “widows and next of kin.”
One effect was to exclude individuals who lay outside the usual family structure. Another effect
was to exclude a widower: the male surviving spouse. For more than one hundred years, many
states’ wrongful death law denied recovery to dependent widowers seeking lost support in the
wake of a wife’s death. (The English statute, interestingly, authorized death actions by either
spouse.) Both of these features meant that the wrongful death statutes both reflected and
reinscribed very particular ideas about what proper families looked like. Proper families were
ones with wage earning husbands and fathers who supported dependent wives and children.
Indeed, given the way in which most statutes limited damages to lost wages, the death of nonwage
earners such as women (who worked in the home) or children (who increasingly did not
work for wages) often gave rise to no cause of action at all. See VIVIANA ZELIZER, PRICING THE
PRICELESS CHILD: THE CHANGING SOCIAL VALUE OF CHILDREN (1985).
The gender assumptions underlying the wrongful death model of the family lasted right
into the late twentieth century. The widow/widower asymmetry lasted until the U.S. Supreme
Court struck it down as an unconstitutional violation of the Equal Protection Clause of the
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