Even more wrongful death: statutes divorced from reality.

• Author: Culhane, John G.

INTRODUCTION

Conferences convening to discuss matters of legal interest to a particular group are important occasions for gathering information, updating an audience on relevant developments, and sharing recent experiences. More specifically, the Lavender Law conference that spawned this Article also afforded legal academics, judges, and practitioners a chance to speak across the fence to neighbors with whom we too often have little contact. Such opportunities are especially enriching for those of us who write and think from a more theoretical point of view about the law; we learn of the real-world effects of our issues, not only for the lesbian/gay/bisexual/trans-gendered ("LGBT") community but for others that the legal regime often discounts. As someone who has an interest in both tort law and the rights of same-sex couples, I find these connections particularly helpful.

I first became interested in wrongful death laws because of their unjust effect on surviving members of same-sex couples. I quickly came to realize, however, that these statutes contain deeper flaws that make them ill-suited to their task of compensating those who suffer loss from the death of their "supporter," to use the most general term. Thus, this Article criticizes wrongful death laws on both of these levels simultaneously. In short, the statutes fail those in same-sex relationships, as well as many others who suffer the kind of losses for which the statutes were meant to compensate. The following preliminary words to ground the discussion of wrongful death may be helpful.

While the law favors actions for personal injury and property damage, tort claims based on injuries to relational interests are only grudgingly recognized. For understandable reasons, courts have been reluctant to extend recovery to parties beyond the person physically injured, even though these second-order harms are real enough. Thus, for example, claims for negligently inflicted emotional distress may be based on physical injury to another person, but only under carefully circumscribed circumstances. (1) Similarly, one who suffers a relational loss--labeled a "loss of consortium"--because of a physical injury to another may have a claim against the tortfeasor, though courts have strictly limited these claims as well. Legal spouses are among those most likely to recover for these types of claims. (2) Children and parents can recover in some states, but not in others. (3) Little movement has been made towards expanding claims to include unmarried couples, including same-sex couples. (4) It also follows that friends, business associates, and sports teammates are unable to recover for their loss of consortium when another suffers personal injury.

To list these categories of potential plaintiffs is to underscore the reason for judicial reluctance in allowing recovery for these relational harms. To permit recovery for injuries to relations would extend the compass of liability outward from the primary victim, an expansion which would be limited only by the practicalities of litigation: a distant acquaintance would likely suffer little loss, and therefore neither she nor her attorney (working in a contingency-fee universe) would likely pursue the case. Nonetheless, one can easily imagine a large class of potential plaintiffs in any particular case involving relational harms, and courts have established bright line ramparts to dissuade all but a tight core of closely related persons from suing. There has even been some movement to abolish the consortium tort entirely. (5)

But if the loss of consortium tort is to be recognized at all, what lines are reasonable? In attempting to fix the outer boundaries of liability, courts have sometimes looked to wrongful death laws. Such laws, passed in every state during the nineteenth century, (6) establish strict categories of those eligible to recover. As would be expected of laws that pre-date today's evolving definitions and constructions of "family," the laws generally limit recovery to close blood relations, which include the nuclear family, and perhaps grandparents and grandchildren, and those related by marriage. (7) As the following discussion shows, these laws have become problematic, as they do not reliably tie recovery to real loss.

Awards in wrongful death actions provide financial assistance to those who, because of the death of another at the hands of a party who was negligent or worse, have suffered a loss of economic support. For reasons of historical accident, (8) wrongful death law is statutory. The laws in every state define the class of eligible beneficiaries. (9) In this respect, the statutes achieve results similar to those that courts reach in emotional distress and loss of consortium cases.

Elsewhere, I have explored at length the laws of emotional distress and loss of consortium as they apply to same-sex relationships. (10) I have suggested that, despite the statutory impediments, progress on the law of wrongful death seems more promising than any evolution of thought on the common law front. Recent developments have begun to bear out this prediction. In a few states, wrongful death laws have advanced to provide recovery to some same-sex couples. In New York, a significant case was decided in a manner that avoids the strictures of the State's wrongful death laws. In contrast, a "clanging silence" persists in the area of same-sex couples and the common law torts of loss of consortium and negligent infliction of emotional harm.

This Article begins with a discussion of the suffocating restrictions on the class of eligible beneficiaries under most wrongful death statutes, and then considers recent legislative and judicial initiatives that have begun to change these laws to reflect reality. The Article goes on to analyze the Victim Compensation Fund, passed in response to the tragic events of September 11, 2001, as a powerful example of the ability of legislative and regulatory rules to define eligibility for flexible recovery. The approach used by the Fund ties compensation to real loss, rather than to status. (11)

Next, the Article discusses recent legislative and judicial developments involving the torts of negligent infliction of emotional distress and loss of consortium. This analysis emphasizes the point that courts and legislatures are increasingly willing to recognize the reality of people's relationships, even when those relationships do not enjoy the approbation uniquely accorded to marriage. I conclude by offering a few observations that might provide some explanation for the curious absence of same-sex couples from the decisional law.

1. WRONGFUL DEATH LAW: PROBLEMS AND SOLUTIONS

   In most states, a statutory gap exists between the loss for which wrongful death compensates and eligibility to recover for that loss. This gap affects surviving members of same-sex couples in an obvious way, but affects many other kinds of relationships as well.

   Recovery under wrongful death statutes in most states compensates for the pecuniary loss caused by the primary victim's death. Such loss is based on the support that the deceased had provided, and would have been expected to continue providing the survivor, had the defendant's negligence not prematurely ended the relationship. (12) A state's statute may also permit compensation for something like emotional injury or loss of consortium. (13) For simplicity's sake, this Article will focus on the pecuniary loss issue. (14)

   Who is likely to suffer such loss? The statutes generally provide a reasonable "guess list" that probably works in most cases: spouses, children, and, sometimes, parents and siblings. (15) Some also allow recovery for anyone else entitled to take under the state's law of intestacy, but sometimes only if one of the "primary" beneficiaries, namely spouses and children, does not exist. (16)

   The problem with such laws should be obvious enough, as a few examples will illustrate. What if the decedent was supporting a parent in a jurisdiction that does not allow recovery for parents? Or what about a housekeeper whose long service to her employer was rewarded with regular financial and other gifts that the housekeeper relied upon? With special relevance to our discussion, what about an unmarried partner--of the same or the opposite sex--who is not on the "list" of eligible beneficiaries, even though he or she was, in fact, the sole dependent of the decedent? In most states, none of these people even have standing to seek recovery. (17) Thus, courts never reach the question of whether they have suffered a loss that would otherwise be compensable.

   Note that the result is no different where the survivor is the sole beneficiary under the decedent's will. In that case, the party in question would get all of the assets of the decedent's estate, but none of the expected future support that is the corpus of a wrongful death recovery.

   Clearly, the statutes are out of step with social reality. The question then becomes: What is the best solution? Several state statutes, as well as the Victim Compensation Fund, have advanced beyond the archaic assumption that actual loss mirrors legal or biological status. (18) Even in the absence of a modern statute, there has been some judicial movement in the direction of recognizing real loss. The best example of such forward thinking can be found in Langan v. St. Vincent's Hospital, a recent New York decision. (19) These statutory and judicial developments merit discussion.

   1. Statutory Advances in Wrongful Death Law

      Michigan is one of the few states attempting to tie recovery to loss by allowing recovery to those entitled to take under a will, assuming they can prove actual loss. (20) Michigan, like most states, also grants standing to close relatives, even if they were not named in the will. (21) Of course, the correlation between loss and standing to recover for that loss is not complete, even in Michigan. For...