Wrongful Death Statute & Survival of Civil Actions Statute

Wrongful Death Statute & Survival of Civil Actions Statute

By Sally A. Roberts

            Connecticut’s wrongful death statute, found at Conn. Gen. Stat. § 52-555, provides for the recovery of “just damages,” medical expenses and funeral expenses by the executor or administrator of an estate for injuries resulting in death.  The statute also requires that the executor or administrator bring the suit within two years of the date of death and five years of the date of the injury.  The estate itself may not bring a wrongful death action.[1]

            No action lay at common law for causing death.[2]  The statutes permitting actions for wrongful death are in derogation of the common law, and therefore are strictly construed.[3]  Not every death gives rise to a cause of action.  If the decedent had no right of action, none survives to his administrator.  The statutory right of action belongs, in effect, to the decedent.  Thus, a cause of action for wrongful death may not be maintained unless the death was truly wrongful in that it resulted from the negligence, recklessness, carelessness or other actionable tort of the defendant.[4]

            The wrongful death statute must be read in conjunction with the Survival of Civil Actions Statute.  Conn. Gen. Stat. § 52-599 provides that a right to any civil action is not lost upon the death of the plaintiff.  The statute provides for the executor or administrator to substitute for a deceases litigant in the prosecution or defense of a claim or lawsuit. 

            This statute prevents the cause of action from being lost under the common-law rule that the death of the plaintiff extinguishes the cause of action.[5]  But for such a statute, the common-law rule providing that a cause of action abates upon the death of the plaintiff, either due to a wrongful act of the defendant or natural causes would remain the law in Connecticut.[6]  However, the Survival of Civil Actions statute does not permit the survival of any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants.[7]  However, even actions dependent upon the testimony of a decedent (such as a slander action), may continue through use of the Dead Man’s Statute.[8]

            The Wrongful Death Statute, § 52-555, creates a remedy for a wrongful death, overturning the common-law rule that no action for wrongful death may be maintained.  The Survival of Action Statute, § 52-599, creates neither a cause of action nor a remedy, but establishes the procedure allowing for the continuation of an action despite the death of a party.  The Survival of Action Statute pertains to any kind of civil suit originally commenced by a plaintiff who thereafter dies, or brought against a defendant who thereafter dies.

            The Wrongful Death Statute permits recovery for the tortiously caused death of any person “whether instantaneous or otherwise.”[9]  Conn. Gen. Stat. § 52-555 specifies two categories of damages recoverable for a wrongful death.  The first category includes the expenses the decedent and the estate suffered as a result of the wrongful act.  The estate may thus recover the cost of reasonably necessary medical, hospital and nursing services, and funeral expenses.  The statute also permits the recovery of “just damages.”  These frequently comprise the greater portion of the wrongful death recovery and consist of such elements as the decedent’s pain and suffering, loss of life itself and loss of the enjoyment of life’s activities.  Losses or damages suffered by beneficiaries of the estate of decedent’s dependents do not constitute “just damages” under the statute.[10] 

            “Just damages” for wrongful death include compensation for the very loss or deprivation of the life itself.  The fact that the decedent has lost his life, without consideration of any other circumstances or facts involving the decedent’s life, entitles him to substantial damages.[11]  The courts have wrestled with the definition of this element of damages.  However, courts do not fully equate loss of earning capacity with loss of the life itself, because loss of life is a non-pecuniary type of damages for which, like pain and suffering damages, no money standard can apply.