When a person dies as a result of the wrongful actions of another, two distinct causes of action arise. The first is a “survival” action pursuant to 10 Del. C. §§ 3701 and 3704, whereby a personal representative of the decedent may bring any action which might have been brought by the decedent to recover damages that were sustained up to the time of the decedent’s death. The second action is one for “wrongful death” pursuant to 10 Del. C. §§ 3721-3725, which is designed to compensate family members for their losses arising from the death.75
In a survival action, there are three basic elements of damages. The first is recovery for pain and suffering from the time of the injury to the moment of death, assuming that it is proved by a preponderance of the evidence that death was not instantaneous and that there was some appreciable interval of conscious pain and suffering after the injury.76 Courts, however, will not engage in a “stopwatch” approach on the question of what constitutes an appreciable interval of time. Instead, all that must be shown is that death was not instantaneous and that the deceased suffered conscious pain and suffering.77 The second element is recovery for all expenses incurred by the decedent in attempting to cure the injury. The third element is recovery of any lost earnings resulting from the injury from the time of injury to the moment of death.78
Beyond these three basic elements of damages, the facts surrounding the injury leading to the death may warrant additional damages. For example, additional compensation may be awarded for physical impairment for a period of time between the injury and the death if the evidence shows some manifestation of diminution of a bodily function or the prevention of the exercise of a bodily function that existed prior to the onset of the tort-related cause or any subsequent impairment that would not have occurred but for the tort-related cause.79 Further, if the tortfeasor’s actions were wilful or wanton, punitive damages may be awarded, as it is an item of damage that could have been recovered by the decedent had he or she lived.80 There must be an award of compensatory damages for pain and suffering, however, before punitive damages may be awarded.81
In wrongful death actions, the statute provides five basic elements of damages. The first compensates for the loss of expected pecuniary benefits to the beneficiary or beneficiaries that would have resulted from the continued life of the deceased.82 It does not have to be established that the beneficiary or beneficiaries had a conscious subjective expectation that they would receive such monetary benefits in order to recover them as damages.83 If the decedent is a child, the amount of pecuniary benefits is measured as that amount which the child probably would have earned, saved and left to his or her next of kin at the end of the child’s life expectancy.84
Other elements of damages for wrongful death include (i) loss of contributions for support;85 (ii) loss of parental, marital and household services, including the reasonable cost of providing for the care of minor children;86 (iii) reasonable funeral expenses not exceeding $7,000.00;87 and (iv) mental anguish resulting from such death to the surviving spouse and next of kin of such deceased person.88 A surviving spouse, child, parent (in the absence of a surviving spouse or child) or persons who stand in loco parentis to the deceased89 may recover for mental anguish whether or not they had achieved such status prior to the date of the injury. By contrast, those to whom the decedent stood in loco parentis may not recover for mental anguish unless they had achieved that status as of the date of the injury.90
Punitive damages may not be awarded in a wrongful death action.91 Nor may a plaintiff in a wrongful death action recover “hedonic” damages, i.e., damages to compensate for the decedent’s loss of the ability to enjoy life’s pleasures.92
75. Goldsmith v. Doctors for Emergency Services, Inc., CA. No. 84C-AP-108, slip op. at 3, Poppiti, J. (Del. Super. Mar. 1, 1988); Shively v. Klein, C.A. No. 84C-JL-1 12, slip op. at 1, Poppiti, J. (Del. Super. Sept. 9, 1986).
76. Magee v. Rose, 405 A.2d 143, 146-47 (Del. Super. 1979); Coulson v. Shirks Motor Express Corp., 107 A.2d 922, 924 (Del. Super. 1954); Lee v. A.C. & S. Co., Inc., C.A. No. 79C-DE-125, slip op at 14, Taylor, J. (Del. Super. July 22, 1987) (ORDER); Harris v. Capano, C.A. No. 80C-FE-120, slip op. at 3, Christie, J. (Del. Super. Nov. 17, 1981).
77. Fall v. Evans, C.A. No. 85C-FE-30, slip op. at 7, Stiftel, J. (Del. Super. Mar. 28, 1989), aff’d mem., 577 A.2d 752 (Del. 1990); Harris v. Capano, C.A. No. 80C-FE-120, slip op. at 3 n.4, Christie, J. (Del. Super. Nov. 17, 1981).
78. Magee v. Rose, 405 A.2d 143, 147 (Del. Super. 1979); Coulson v. Shirks Motor Express Corp., 107 A.2d 922, 924 (Del. Super. 1954); Lee v. A.C. & S. Co., Inc., C.A. No. 79C-DE-125, slip op. at 14, Taylor, J. (Del. Super. July 22, 1987) (ORDER).
79. Lee v. AC. & S. Co., Inc., C.A. No. 79C-DE-125, slip op. at 15, Taylor, J. (Del. Super. July 22, 1987) (ORDER).
80. Reynolds v. Willis, 58 Del. 368, 209 A.2d 760, 763 (Del. 1965); Magee v. Rose, 405 A.2d 143 (Del. Super. 1979); Roberts v. Wilmington Medical Center, C.A. No. 345, slip op. at 4, Christie, J. (Del. Super. Apr. 28, 1978).
81. Magee v. Rose, 405 A.2d 143 (Del. Super. 1979).
82. 10 Del. C. § 3724(d)(1).
83. Fall v. Evans, C.A. No. 85C-FE-30, slip op. at 13, Stiftel, J. (Del. Super. Mar. 28, 1989), aff’d mem., 577 A.2d 752 (Del. 1990).
84. Bradley v. Dionisi, C.A. No. 86C-AU-33, slip op. at 3, Poppiti, J. (Del. Super. Nov. 17, 1988); Shively v. Klein, C.A. No. 84C-JL-l 12, slip op. at 2, Poppiti, J. (Del. Super. Sept. 9, 1986).
85. 10 Del. C. § 3724(d)(2).
86. 10 Del. C. § 3724(d)(3).
87. 10 Del. C § 3724(d)(4).
88. 10 Del. C. § 3724(d)(5).
89. A person stands “in loco parentis” to another when that person acts as the lawful parent or guardian of another and assumes obligations incident to the parental relation without going through the formalities necessary to a legal adoption. Gill v. Celotex Corp., 565 A.2d 21, 24 (Del. Super. 1989).
90. 10 Del. C. § 3724(d)(5); Gill v. Celotex Corp., 565 A.2d 21, 24 (Del. Super. 1989).
91. Reynolds v. Willis, 209 A.2d 760, 762 (Del. 1965); Magee v. Rose, 405 A.2d 143 (Del. Super. 1979); Sterner v. Wesley College, Inc., 747 F. Supp. 263, 267-69 (D. Del. 1990).
92. Sterner v. Wesley College, Inc., 747 F. Supp. 263, 272-74 (D. Del. 1990).
© 2010 David L. Finger