Wrongful Death

Survival Act

Claims brought under the Survival Act are governed by N.J.S.A. §2A:15-3. The statute states:

Executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser, and recover their damages as their testator or intestate would have had if he was living.

In those actions based upon the wrongful act, neglect, or default of another, where death resulted from injuries for which the deceased would have had a cause of action if he had lived, the executor or administrator may recover all reasonable funeral and burial expenses in addition to damages accrued during the lifetime of the deceased.

Every action brought under this chapter shall be commenced within two years after the death of the decedent, and not thereafter, provided, however, that if the death resulted from murder, aggravated manslaughter or manslaughter for which the defendant has been convicted, found not guilty by reason of insanity or adjudicated delinquent, the action may be brought at any time.

The damages recoverable for claims brought under the Survival Act are for a decedent’s conscious pain and suffering. New Jersey limits recovery to the pain and suffering experienced by the decedent from the time of the alleged negligence and resulting injury until the time of death. Lebegern v. Forman, 339 F. Supp. 2d 613, (D.N.J. 2004), aff’d 471 F.3d 424, 2006 (3d Cir. N.J. 2006). Under N.J.S.A. 2A:15-3, the pertinent time period is "between the time that the tort was committed and death" because this is the period by which a decedent’s pain and suffering can only be calculated. Id. at 475. But, in order to be entitled to such an award of damages under the Survival Act, the record must still contain sufficient evidence that the decedent suffered pain and discomfort, and that there was some loss of enjoyment of life as a result of a defendant’s actions. Arenas v. Gari, 309 N.J. Super. 1, 706 A.2d 736, 1998 N.J. Super. LEXIS 78 (App.Div. 1998). The fact finder must reasonably be able to infer from the evidence that the decedent was conscious and in pain in the time between the injury and his or her death. Jablonowska v. Suther, 390 N.J. Super. 395, (App.Div. 2007), rev’d 195 N.J. 91 (2008). Absent some appreciable moment of consciousness, no matter how minimal, there can be no recovery.

Discovery is typically necessary to determine whether a decedent was responsive after the accident and whether there was any period after the accident and prior to death where the decedent was conscious. You need a lawyer familiar with the issues presented in cases involving disputed consciousness and who has experience with experts in the medical community who can assist in establishing a period of consciousness no matter how slight.

Because, if these types of claims proceed to the jury, jurors are not provided any guidance as to the valuation of conscious pain and suffering. There is not an equation to compute, for example, that “X” minutes equals “Y” dollars. Rather, it is left to the jury to determine what it believes is fair compensation based upon the facts. And, with the right representation, should you be able to get your claim under the Survival Act to a jury you could be compensated handsomely for your tragic loss.

Wrongful Death Act

Claims brought under the Wrongful Death Act are governed under N.J.S.A. §2A:31-1. The statute holds the following:

When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.

When the death of a person is caused by the "wrongful act, neglect or default" of another, an "action for damages" arises. N.J.S.A. 2A:31-1. The hallmark case interpreting this statute is Green v. Bitner, 85 N.J. 1 (1080). In Green, the New Jersey Supreme Court held that in "every action" brought under N.J.S.A. 2A:31-1, the family of the deceased should not be limited to “pecuniary loss such as the loss of the value of the [decedent’s] anticipated help with household chores, or the loss of anticipated direct financial contributions,” but in addition, “the jury should be allowed, under appropriate circumstances, to award damages for the…loss of…companionship as they grow older, when it may be most needed and valuable, as well as the advice and guidance that often accompanies it.” The Court confined such losses “to their pecuniary value, excluding emotional loss,” however.

The Appellate Division applied the Green holding to the sole younger sister of a deceased sibling in Gangemi v. National Health Labs, Inc., 291 N.J. Super. 569 (App. Div. 1996). In Gangemi, the Appellate Division recognized the speculative nature of such damages in holding that:

The nature of these cases has led our courts to allow damages even though the inferences, and the estimate of damages, are based upon uncertainties…when an infant child dies and loss of prospective services is allowed to the parents, the proof that suffices is the parent-child relationship and what we assume the jury can conclude from that relationship alone. Damages are allowed without any showing…that the child – even if only five months old… - was likely to render services around the house.

But, there are other holdings from the New Jersey Supreme Court that specifically limit damages available under the Wrongful Death Act to established pecuniary loss resulting from the death of the decedent. These cases hold that the jury can only award damages "with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased" to the "persons entitled to any intestate personal property of the decedent." N.J.S.A. 2A:31-5. Smith v. Whitaker, 313 N.J. Super. 165. See Carey v. Lovett, 132 N.J. 44, 67, 622 A.2d 1279 (1993) ("Damages for the wrongful death are limited to economic matters."); ("An award of damages in a wrongful death action is not intended to punish the tortfeasor, but only to replace that which the decedent likely would have provided.").

As such, there is some dispute even among the highest court in the state as to what proofs may go toward supporting damages awarded under the Act. Based upon our experience, the decision by the court as to what the jury is permitted to consider has a lot to do with the defendant. In cases against corporate defendants courts are often more likely to give more leeway under the Wrongful Death Act and allow the jury to consider non-pecuniary testimony as a basis for damages. The reason for this is likely due to the fact that the Wrongful Death Act does not allow for an award of emotional distress damages to the decedent’s family. As such, any emotional distress claim must be brought separately and is subject to the required elements as set forth in Portee v. Jaffe, 84 N.J. 88 (1980), discussed here on our wbsite. Courts are cognizant that this threshold makes recovery on emotional distress claims more difficult for plaintiffs. Therefore, courts are likely to be reluctant to bar recovery for loss of services and companionship too as they may be the only way in which the decedent’s family can be compensated for their own loss.

It is crucial that you obtain sound legal advice on these issues when dealing with the loss of a loved one. Call us now if you need more help.