Chapter 38 WRONGFUL DEATH

• Jurisdiction: North Carolina

38 WRONGFUL DEATH¹

A. Definition

Generally, at common law, there was no action for pecuniary or other harm from the death of another against the person who caused the death.² Where an injury later resulted in death, the action abated; thus, any right of action ceased on the death of the injured party.³ A wrongful death action is, therefore, purely statutory.⁴ That statute, first enacted in 1854,⁵ is N.C.G.S. § 28A-18-2. The North Carolina Supreme Court said in an early case that the statute confers a new right of action that did not exist before and it must be strictly followed,⁶ although, more recently, it said that the Wrongful Death Act is not in derogation of common law, but rather a remedial statute that should be "liberally construed" according to its intent.⁷

Any common-law claim that is now encompassed by the wrongful death statute must be asserted under it,⁸ and those claims are generally referred to as "wrongful death actions."⁹ There is a precondition to an action under the wrongful death statute: the "the injured party" must have been able to have maintained an action for personal injuries had he or she survived. If the decedent could have maintained an action, the action for wrongful death exists, otherwise it does not.¹⁰

For example, in Lynch v. North Carolina Department of Justice,¹¹ the decedents were two children murdered by their custodians, allegedly because the defendant law enforcement officers tried to arrest one custodian for murder. The administrator's wrongful death action could not, said the court, be maintained because the children could not have recovered for their injuries had they lived since the defendants did not owe them any legal duty of care, the breach of which caused their injury and death.

One of the requirements of the statute that must be strictly followed is that the action is "to be brought by the personal representative or collector of the decedent . . . ."¹² The action for wrongful death vests in the personal representative of the deceased alone.¹³ However, the beneficiary, not the administrator,¹⁴ is the real party in interest, which may be significant in establishing diversity of citizenship for purposes of federal jurisdiction if a wrongful death action is brought in federal court.¹⁵

The action must be brought by the personal representative in his or her official¹⁶ — not private or individual — capacity.¹⁷ Parents may not maintain a wrongful death action in their individual capacities for deaths of their children,¹⁸ and a child may not bring an action for the death of a parent.¹⁹ A husband cannot sue for the wrongful death of his wife,²⁰ nor may a widow bring an action for the wrongful death of her deceased husband.²¹ A foreign executor or administrator lacks the capacity to sue in a North Carolina wrongful death action.²²

The plaintiff must both allege and prove that he or she has the capacity to sue.²³ When the plaintiff merely alleges that he or she is the duly qualified and acting administrator of the deceased, but offers no evidence of that fact, the defendant's denial of the allegation is sufficient to support a motion to dismiss.²⁴ However, if the defendant admits the plaintiff's capacity to sue, then the motion cannot be sustained on the ground that the plaintiff is not the party entitled to maintain the action.²⁵ If an executor or administrator is removed or discharged, the suit should be continued in the name of his or her successor.²⁶

There will be cases where a defendant allegedly injured the decedent, but it is unclear whether those injuries caused the death. Under North Carolina's "survivorship statute," the right to prosecute an action that existed in favor of the decedent survives to the personal representative or collector of his or her estate.²⁷ Thus, the personal representative may bring an action for injuries that are unrelated to the death. Additionally, wrongful death and survivorship claims may be brought as alternative claims for the same negligent acts.²⁸ However, "when a single negligent act of the defendant causes a decedent's injuries and those injuries unquestionably result in the decedent's death, the plaintiff's remedy for the decedent's pain and suffering and medical expenses lies only in a wrongful death claim. Such claim is 'encompassed by the wrongful death statute' and 'must be asserted under that statute.'"²⁹

B. Elements

The elements of an action for wrongful death are:

(1) A wrongful act, neglect or default of another that would have entitled the decedent to an action for damages had he or she lived;
(2) The act or omission caused the death; and
(3) Damages allowed under the statute.³⁰

C. Elements Defined

1. A Wrongful Act, Neglect or Default that Would Have Entitled Decedent to Action for Damages Had He/She Lived

The plaintiff must establish that there was a wrongful act.³¹ That act need not be "wanton or cruel," only wrongful.³² Recovery for wrongful death depends on the same proof of actionable negligence or misconduct under the general rules of tort liability that would apply to an action strictly for personal injury.³³ Any action — whether intentional,³⁴ negligent,³⁵ or a breach of warranty³⁶ — that sounds in tort should support a wrongful death claim.³⁷ Thus, wrongful death claims have been based on medical malpractice,³⁸ motor vehicle accidents,³⁹ breach of warranty⁴⁰ and other forms of negligence.⁴¹ While a wrongful death action might be based on an intentional killing — murder — in actuality, they rarely are, perhaps because the murderer lacks assets, and any insurance likely excludes coverage for intentional acts.⁴²

The wrongful death statute applies if "the death of a person is caused by a wrongful act, neglect or default . . . ."⁴³ In the case of a wrongful act or omission against an unborn child,⁴⁴ the North Carolina Supreme Court has held that "uncertainty in the meaning of the word 'person' should be resolved in favor of permitting an action to recover for the destruction of a viable fetus en ventre sa mere'"⁴⁵ This followed an earlier ruling in which the court said that a child injured before birth who dies from those injuries would, if he or she had lived, been able to maintain an action to recover damages for the prenatal injuries negligently inflicted on him or her and, therefore, the child's administrator may maintain an action for his or her wrongful death.⁴⁶

2. The Wrongful Act or Omission Caused Decedent's Death

If the evidence only shows the decedent was injured⁴⁷ by the defendant and later died, an action for wrongful death may not be maintained, as the plaintiff must prove the defendant caused the death.⁴⁸ In an action founded on negligence, the negligent breach of duty must be shown to be a proximate cause of the injury that produced death — that is, a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which anyone of ordinary prudence could have foreseen as probable under the facts as they existed.⁴⁹ For example, in Sharpe v. Pugh,⁵⁰ the plaintiff was the administrator for a three-year-old child who died after the defendant physician prescribed a drug. The plaintiff alleged the defendant knew, or in the exercise of due care should have known, the drug was a dangerous one that, on occasion, produced serious and harmful side effects, including aplastic anemia, and was not recommended by its manufacturer for the purposes for which it was prescribed by the defendant. The plaintiff also alleged the defendant failed to warn the plaintiff's decedent or her parents, as it was his duty to do, that taking the drug was dangerous or that it might produce serious side effects. The defendant's negligence was, contended the plaintiff, the proximate cause of the child's death. The court said that while the plaintiff's evidence would have to prove the allegations, it could not say as a matter of law that the defendant's alleged negligence was not a proximate cause of the child's death and, therefore, the lower court erred in ruling against the plaintiff.

Though the decedent died by his or her own hand — suicide — a defendant who had some responsibility to protect the decedent may yet be liable for wrongful death.⁵¹

3. Damages Allowed Under the Statute

Pecuniary damages are not an element of the action.⁵² Originally, the wrongful death statute provided only for damages for pecuniary loss. Nominal damages were unavailable.⁵³ Since, in addition to a wrongful act and causation, a plaintiff had to show damages, many actions were dismissed for failure to show any pecuniary loss.⁵⁴ The statute was amended in 1969 to provide for nominal damages "when the jury so finds."⁵⁵ Thus, nominal damages and costs may be recovered if the death was caused by the defendant's wrongful act, even if there is no finding that the death caused pecuniary loss.⁵⁶ Indeed, once a cause of action is established, a plaintiff is entitled to recover nominal damages as a matter of law.⁵⁷ The requirement to show damages is then effectively eliminated as an element of the action since, if the plaintiff shows that the decedent was killed as a proximate cause of the wrongful act of the defendant, a cause of action for wrongful death is established and a trial court errs if it refuses to enter an award of nominal damages.⁵⁸

D. Defenses

The statute of limitations for wrongful death actions is two years.⁵⁹ In general, the action does not accrue until the death;⁶⁰ however, if the decedent would have been barred from bringing an action for bodily harm, had he or she lived, because of §§ 1-15(c) or 1-52(16), then no action for his or her death may be brought.⁶¹ The first of those statutes concerns the accrual of actions for malpractice arising out of the performance of, or failure to perform, professional services.⁶² The second provides that for inter alia personal injuries other than those addressed by § 1-15(c), the action will not accrue until the bodily harm becomes apparent or ought...