Chapter 10 - § 10.2 DECEDENT'S SURVIVOR MAY NOT ASSERT INDEPENDENT CLAIMS IN OWN NAME FOR CLAIMS THAT COULD HAVE BEEN MAINTAINED BY DECEDENT HAD HE OR SHE LIVED

• Jurisdiction: Colorado

§ 10.2 DECEDENT'S SURVIVOR MAY NOT ASSERT INDEPENDENT CLAIMS IN OWN NAME FOR CLAIMS THAT COULD HAVE BEEN MAINTAINED BY DECEDENT HAD HE OR SHE LIVED

In Hale v. Morris, 725 P.2d 26 (Colo. App. 1986), the plaintiff brought a wrongful death action against a dentist, Jay Morris, for causing the death of her five-year-old son. The plaintiff dropped her son off for treatment at the defendant's office and then left to do errands. When she returned, there were emergency vehicles present, and she found that her son had suffered respiratory failure due to a combination of drugs administered at the defendant's office. The boy later died of cardiac failure.

The plaintiff then brought a wrongful death action against Morris and separate, individual claims for outrageous conduct, negligent infliction of emotional distress, lack of informed consent, and breach of implied contract. The trial court granted partial summary judgment against the plaintiff on her individual claims, and she appealed. The court of appeals upheld the summary judgment. Id. at 27.

The court of appeals first held that the plaintiff could not assert individual claims for breach of contract or lack of informed consent because these claims belonged to her son and could have been brought by her on her son's behalf had he survived. The mother's claim for breach of implied contract and lack of informed consent were derivative and could only be brought under the Wrongful Death Act. Id. at 28. Likewise, the court held that the trial court had properly dismissed the plaintiff's claims for outrageous conduct and negligent infliction of emotional distress. These claims had to be dismissed because the plaintiff was not subjected to a direct threat...