Wrongful death occurs when a victim is killed as a result of a lack of reasonable care under the circumstances presented. A wrongful death claim belongs to a victim’s survivors. Such survivors may seek monetary damages to compensate for the consequences of such improper conduct.
A wrongful death claim differs from a simple negligence claim for a victim’s injuries. To understand wrongful death claims, we must consider English “common law”, the basis of most American jurisprudence.
In England, a wrongful death claim did not exist. Because, it was thought that the victim’s claim died with him. Injustice resulted since surviving family members had no claim and death was never vindicated. To correct this problem, American states passed wrongful death laws to compensate for damages flowing from the victim’s death. Today, every state has a wrongful death statute of some type.
Wrongful death statutes are state specific. However, most wrongful death statutes require:
- Death was caused, in whole or part, by defendant’s conduct;
- Defendant was negligent or strictly liable for the victim’s death;
- The existence of a surviving spouse, children, beneficiaries or dependents;
- Monetary damages due to the victim’s death.
Oregon’s wrongful death statute is Oregon Revised Statutes 30.020 which reads in relevant part:
“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 … may maintain an action against the wrongdoer …”
In Oregon wrongful death claims must be brought within three years, but significant exceptions apply to this rule. And, special Oregon “tort claim notice” rules may also apply. An attorney should be consulted on death cases.
In considering how much to award for wrongful death Oregon courts consider the following factors:
- Charges necessarily incurred for … medical services, burial services and memorial services …;
- Disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death;
- Pecuniary loss to the decedent’s estate;
- Survivor’s loss of companionship and services of the decedent;
- Punitive damages the decedent would have recovered had he or she lived
The dead cannot cry out for justice; it is a duty of the living to do so for them.Lois McMaster Bujold, 2001