A long time ago when lawyers spoke Latin, it was said that personal injury actions die with the person. The death of either a wrongdoer who caused harm or his or her victim eliminated any claim that might have existed. The victim’s estate could not sue, and the victim could not sue if he or she lived but the wrongdoer died.
In 1846 (before Oregon even became a state), though, an English law called the Fatal Accident Act (also known as Lord Campbell’s Act) started a shift in American law away from the harsh rule barring wrongful death claims. Based on that Act, American states began to pass legislation providing for rights arising out of a person’s death caused by another’s negligent or wrongful conduct.
Wrongful death statutes create a new action giving legal rights to certain beneficiaries. Oregon’s is ORS 30.020. It’s mostly one long sentence, and it might sound like a tangled mess. But it creates important rights for survivors:
When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission.
This means that a surviving spouse, child, or parent of the deceased person, as well as surviving grandparents, stepchildren, or stepparents may file wrongful death claims to recover damages. Compensation can be recovered for funeral and burial expenses, medical and hospital expenses related to the deceased person’s final injury or illness, lost wages and benefits, pain and suffering that the deceased endured just before death, and loss of care, companionship, comfort, and guidance suffered by the surviving family members. Lost wages include those earnings that the deceased person would reasonably have made in the future if he or she had continued to live. If the defendant’s conduct that caused the death was extremely negligent or intentional, then punitive damages could also be pursued.
Obviously, none of that can replace a person who dies as a result of someone else’s negligent or intentional harm. But that would also be the case with regard to the deceased person’s injuries had he or she lived. The wrongful death claim may provide a small but important measure of justice for survivors as well as some of the often essential economic benefits that the deceased would have been able to provide.
Oregon law requires a wrongful death claim to be filed within three years of the date of the deceased person’s final injury. If too much time passes, the claim will not be allowed no matter how strong it might otherwise be. This means that even though grief, anger, and other traumatic feelings are likely present, it is important not to delay finding an experienced wrongful death lawyer. If you are dealing with a possible claim you should refer to a wrongful death attorney for a free consultation.