Glen R. Pritchard The Law of Wrongful Death

1. CPR&S Glen R. PritchardThe Law of Wrongful Death

2. www.GlenPritchard.com This slide show is may be downloaded under the “Glen’s Library” section of Glen’s World Click on “Glen’s Library”

3. The History of Wrongful Death in Ohio • Ohio passed the first Wrongful Death Statute in 1851. It limited damages to $5000 for economic damages only. • After various amendments, the Ohio Constitution was amended in 1912 to provide that the amount of damages recoverable in a wrongful death action may not be “limited by law”. • In 1982, the statute was amended to permit recovery for non-economic damages.

4. The Statute: R.C. 2125.01 • Authorizes an action if the decedent could have maintained an action if death had not ensued. • Precludes an action against the owner or lessee of real property, unless 1) the death was caused by the violent unprovoked act of someone under the owner’s control, or 2) the act of the owner constitutes “gross negligence”

5. The Statute: R.C. 2125.02(A)(1) • Action must be brought in the name of the personal representative of the decedent. • For the benefit of the surviving spouse, children, and parents, who are rebuttably presumed to have suffered damages. • Also for “the other next of kin”. • A parent who abandons a minor child “shall not receive any benefits” for the child’s wrongful death.

6. The Statute: R.C. 2125.02(A)(2) • The jury or court may award damages “proportioned to the injury and loss resulting to the beneficiaries”; and • may award the reasonable funeral and burial expenses, which the court or jury must “set forth separately.”

7. The Statute: R.C. 2125.02(A)(3) • The status of all beneficiaries is fixed on the date of the decedent’s death. • A person conceived prior to the decedent’s death and who is born above after the decedent’s death is a beneficiary. • Any party may present evidence of the cost of an annuity to cover future damages. • Any party may present evidence that the surviving spouse re-married.

8. The Statute: R.C. 2125.02(B) • Compensatory damages may include: • Loss of support from reasonably expected earning capacity of the decedent; • Loss of society, including, loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education; • Loss of prospective inheritance to the decedent’s heirs; • Mental anguish

9. The Statute: R.C. 2125.02(C) • The personal representative, with the consent of the court making the appointment, may settle with the defendant.

10. The Statute: R.C. 2125.02(E) • Procedure for obtaining a determination that deadbeat parent of minor decedent is not entitled to compensation. • “Abandon” means that a parent of a minor failed without justifiable cause to communicate with the minor, care for the minor, and provide for the maintenance or support of the minor as required by law for a period of at least one year immediately prior to the date of the minor’s death. R.C. 2125.02 (F)(3).

11. The Statute: R.C. 2125.03(A)(1) • The personal representative shall distribute proceeds “to the beneficiaries or any one or more of them”. • The court shall adjust the share of each beneficiary in a manner that is equitable, except when all beneficiaries are on an “equal degree of consanguinity”. • If all beneficiaries are on an equal degree of consanguinity, the beneficiaries may adjust the shares among themselves, or the court will do it.

12. The Statute: R.C. 2125.03(A)(2) • The court may create a trust for any beneficiary who is under twenty-five years of age and order that the portion of the settlement be placed in trust until age 25 and distributed in accordance with the terms of the trust. • Trustee must be approved by each adult beneficiary (of the trust??) and by the guardian of each minor beneficiary of the trust.

13. The Statute: R.C. 2125.03(B) • The court shall distribute the amount of funeral and burial expenses awarded to the personal representative “to be expended by the personal representative” for the payment or reimbursement of the expense.

14. The Statute: R.C. 2125.04 • Savings Statute • For every wrongful death action “commenced or attempted to be commenced” within the two years may be re-filed within one year if a judgment for the plaintiff is reversed or if the plaintiff fails otherwise than upon the merits and the time for filing the action has expired at the date of such reversal or failure.

15. Does Wrongful Death Claim Survive Death of Beneficiary • Where, during the pendency of an action for wrongful death * * * the only heir and next of kin of the decedent, who has sustained pecuniary injury by reason of such death, dies, no one remains within the purview of [the Wrongful Death Statute] in whose behalf the action may be further prosecuted, and the sustaining of a motion by the defendant for a directed verdict or for a dismissal of the action is proper. • Danis v. New York Cent. RR. Co. (1954), 160 Ohio St. 474

16. Does Wrongful Death Claim Survive Death of Beneficiary • 2125.02(3)(a) The date of the decedent's death fixes, subject to division (A)(3)(b)(iii) of this section, the status of all beneficiaries of the action for purposes of determining the damages suffered by them and the amount of damages to be awarded. A person who is conceived prior to the decedent's death and who is born alive after the decedent's death is a beneficiary of the action.

17. Does Wrongful Death Claim Survive Death of Beneficiary • The primary effect of R.C. 2125.02(A)(3)(a) was to supersede prior case law holding that if a beneficiary dies prior to trial or judgment, his interest dies with him and his estate does not succeed to his wrongful death claim. Brookbank v. Gray (1996), 74 Ohio St. 3d 279, fn 3.

18. Settlement of Decedent's Personal Injury Claim • Kissinger v. Pavlus, 10th Dist. App. No. 01AP-1203, 2002-Ohio-3083. • Thompson v. Wing (1994), 70 Ohio St. 3d 176.

19. Legally Entitled to Recover • Fish v. Ohio Casualty Ins. Co., 5th Dist App. No. 2003CA00041, 2003-Ohio-4276. • “Legally entitled to recover means that the insured must be able to prove the elements of her claim necessary to recover.” • “One of the essential terms of Ohio’s wrongful death statute is the time frame within which a wrongful death action must be filed. . . . [T]his two-year requirement [is] an essential element of the action.”

20. Equitable Adoption • Where, under the Ohio wrongful death statues, one who is neither a natural nor an adoptive parent seeks to recover from a tortfeasor, such a claim will lie only where the following four tests are met by clear and convincing evidence: • 1) the natural parents of the child have disclaimed or abandoned parental rights to the child; • 2) the one claiming to be parent has performed the obligations of parenthood for a substantial period of time;

21. Equitable Adoption • 3) the child and the one claiming to be parent have held themselves out to be parent and child for a substantial period of time; • 4) the relationship between the child and the one claiming to be parent has been publicly recognized. • Lawson v. Atwood (1989), 42 Ohio St. 3d 69.

22. Distant Relatives • The phrase “and other next of kin” is used in a broad sense and includes brothers and sisters of a decedent as well as his parents, when both classes of kindred are in existence. • Karr v. Sixt (1946), 146 Ohio St. 527

23. Too Distant Relatives • St. Ursula Convent is not a next-of-kin for purposes of death of “Sister” Mary Cochran. The convent was not entitled to recover Sister Mary’s lifetime earning capacity. • Buchert v. Newman (1993), 90 Ohio App. 3d 382.

24. Attorney Relationship to Beneficiaries • Administrator of estate was in privity with the statutory beneficiaries, and thus, the attorney-client relationship existing between the administrator and estate’s attorneys extended to mother and siblings of the decedent for purposes of maintaining a legal malpractice action for failing to represent the beneficiaries’ interests in the wrongful death action. • Brinkman v. Doughty (2000), 140 Ohio App. 3d 494. • * Sexton claims

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