Chapter 7 - § 7.7 • WRONGFUL DEATH AND SURVIVAL ACTIONS

• Jurisdiction: Colorado

§ 7.7 • WRONGFUL DEATH AND SURVIVAL ACTIONS

When a person injured by a product dies, whether that death is caused by the product or by some unrelated event, any common law rights of action belonging to the decedent cease to exist.⁵⁸ Claims by the relatives or the estate of the deceased are statutory in nature.⁵⁹ The statute giving rise to these claims, along with the entirety of Colorado product liability law, apply in product liability cases in which the person is deceased.⁶⁰

There are two statutory schemes that apply to these circumstances: Colorado's wrongful death statute and Colorado's survival statute. ⁶¹ These two statutory schemes apply to different circumstances, though they can overlap.

The survival statute applies to claims made by the "personal representative of the deceased," i.e., the estate of the deceased.⁶² It applies to claims regardless of whether the claimant died as a result of the product at issue or because of an unrelated event.⁶³

The wrongful death statute, on the other hand, applies to claims brought by certain heirs of the deceased.⁶⁴ And wrongful death claims can only be brought when the death is caused by the product at issue (or the defendant's negligence in non-product liability cases).⁶⁵

Practice Pointer
A wrongful death action is one brought by certain heirs of the deceased for death caused by product defect, while a survival action is one brought (or continued) by the estate of the deceased for the losses prior to death regardless of whether the product caused the deceased's death.

§ 7.7.1—Wrongful Death Actions

The wrongful death statutory provision applicable to, among others, product liability actions states:

When the death of a person is caused by a wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall be liable in an action for damages notwithstanding the death of the party injured.⁶⁶

In a wrongful death lawsuit, the plaintiffs' "right of action is derivative of and dependent upon the right of action which the decedent would have had, had she survived her injuries."⁶⁷ There can only be one wrongful death action for the death of any one decedent.⁶⁸

This section addresses who can bring a wrongful death claim and the apportionment of awards among potential plaintiffs. Issues regarding pro rata fault are addressed in Chapter 13 and issues regarding damages, for which the wrongful death statute has its own unique rules, are addressed in § 16.3.2.

§ 7.7.2—Individuals Who Can Bring Wrongful Death Claims

Colorado's wrongful death statute sets forth a specific set of rules on which individuals can bring a wrongful death action.⁶⁹ The wrongful death statute permits claims to be brought by four sets of potential plaintiffs: (1) the spouse of the deceased; (2) the "heir" or "heirs" of the deceased; (3) the deceased's "designated beneficiary;" and (4) the parents of the deceased.⁷⁰ The details and circumstances under which each potential set of plaintiffs can bring a claim are described below.

The spouse of the deceased takes priority in wrongful death claims. He or she can be a plaintiff in an action,⁷¹ and during the first year after death, the spouse has the exclusive right to bring the action, though he or she can elect to have the decedent's heirs join the action or proceed with the action without the spouse.⁷² In the second year after death, the spouse may still bring an action, and if the action is brought by the heirs without the spouse, the spouse has certain procedural rights to join the action.⁷³

The heir or heirs of the deceased may bring a wrongful death action, so long as such claims do not interfere with the system addressed in the previous paragraph regarding the deceased's spouse.⁷⁴ The heir or heirs are "the lineal descendants of the deceased."⁷⁵ Heirs do not include, among others, parents, nieces and nephews, or siblings.⁷⁶

The "designated beneficiary" can bring a claim with or without the heirs of the deceased if any exist.⁷⁷ A "designated beneficiary" is "a person who has entered into a designated beneficiary...