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Wrong ideas about wrongful death statutes.

Every state has a wrongful death statute.

Thirty-eight of these statutes impose significant limitations on who can sue, when, and on whose behalf;(1) under what theories of liability and against what defenses;(2) what kind of damages claimants can seek;(3) and how much they can ultimately recover.(4)

Most lawyers (and most courts) have always assumed that these statutes -- and these restrictions -- are beyond constitutional challenge, believing that in enacting these laws state legislators were creating causes of action where none had existed at common law. Lawyers and courts have, therefore, felt that they had little choice but to defer to the legislature. They have presumed that whatever it bestows it can narrow or even revoke and that in accepting gifts plaintiffs "must take the bitter with the sweet."(5)

These assumptions are wrong, though, and this habit of deference is unwarranted. As the U.S. Supreme Court recognized 27 years ago in Moragne v. States Marine Lines, Inc.,(6) actions for wrongful death were, in fact, cognizable at common law, at least in the American colonies, if not always in Mother England.

The Court's ruling in Moragne and the wealth of scholarship that supports that decision have tremendous practical consequences for plaintiffs in wrongful death actions. This is true particularly for those facing limits on the kind or amount of damages that can be recovered or restrictions on who can sue and when and under what theories.

Because historical research has proven that wrongful death statutes limit common law rights and do not bestow new rights, those statutes must be regarded as violating state constitutional guarantees, particularly the right to a certain or complete remedy. This is so regardless of a state legislature's ostensibly generous impulses or putatively good intentions. Accordingly, trial lawyers can and should challenge the constitutionality of statutory limitations on wrongful death actions in their complaints or in limine motions.

The confusion regarding the common law origins of wrongful death actions stems from Lord Ellenborough's famous pronouncement that there was no tort action at common law for the death of a human being, which he made in the 1808 case of Baker v. Bolton.(7)

Renowned though this proclamation may be, one noted scholar has described it as not only "obviously unjust" but also inaccurate and "technically unsound," as it is "based upon a misreading of legal history."(8)

In fact, the sole basis for the supposed absence of wrongful death actions at common law was a peculiar feature of the early English legal system known as the felony-merger doctrine. Under this rule, common law courts routinely held that private suits seeking damages for an act that simultaneously constituted a tort and a felony were not tenable.

The courts reasoned that because a civil tort against a private person was less important than a criminal offense against the Crown, the tort not only took a back seat in terms of when it could be prosecuted (an ordering that is still followed in our courts) but was totally preempted by -- or "merged" into -- the felony.

The doctrine found practical justification in the fact that wrongful death suits would never be filed because felons not only lost their lives but also forfeited all property to the Crown, rendering them effectively judgment-proof. Thus, after the crime had been punished, nothing remained of the tortfeasors' property on which to base a viable lawsuit.

Significantly, however, even before the Norman Conquest in 1066, English courts had recognized that the accidental killing of a human being was a compensable wrong.(9) Indeed, far from being disenfranchised or disfavored at early English law, wrongful death claimants could sue under an assortment of legal theories throughout the Middle Ages. The "wer," the "wite," "the compromise," and the "appeal of murder" were all conventional causes of action by which the deceased's family could obtain compensation at ancient common law.

For example, the wer and wite were reparations paid to the deceased's family and the Crown, respectively, in amounts based on the deceased's status or rank.(10) The compromise was similar to an action for damages.(11) The criminal appeal was not an appeal as we know it today. Instead, it was a criminal proceeding that a private person initiated to punish homicide, and it was used more often than an indictment for that purpose. Although a successful appeal would not produce a monetary judgment the mere threat of filing one was useful leverage for obtaining voluntary compensation.

The unintended side effects of the felony-merger rule may have made it often futile to seek compensation from the tortfeasor-felon. But it would be wrong to equate the lack of an incentive to seek compensation with the absence of a legal right to do so. Indeed, given both the confounding nature of Lord Ellenborough's ruling and the fact that it appears to conflict with prior common law practice, some English judges have gone so far as to question whether his ruling was accurately reported.(12)

The decision was a nisi prius ruling, meaning that it arose in a local county trial conducted by a single judge, not in the more formal context of the court sitting en banc at Westminster. In light of the fact that Lord Ellenborough gave no reason for, and cited no precedent or other authority in support of, his sensational assertion, there is good reason to doubt either his mastery of the law or the reliability of the reported version of his decision.

In colonial America

In any event, the American colonies won independence from England before Baker v. Bolton was handed down, that is, before Lord Ellenborough summarized the state of British law circa 1808. Most important, his edict was contrary to the practice that was followed by American courts before the Revolution and was based on early principles never adopted by the colonies.

Not surprisingly, one leading constitutional scholar discovered that there is "no observation in colonial statutes or decisions lending any support to a belief that a death claim would have been denied by our colonial ancestors."(13) This legacy strongly militates against the judicial adoption of Lord Ellenborough's view by U.S. courts.

Indeed, as Justice Joseph Story, one of the principal expositors of early U.S. law, emphasized, although our ancestors brought with them [the] general principles [of the common law] and claimed it as their birthright; ... they brought with them and adopted only that portion which was applicable to their situation."(14)

In reality, the paradigmatic colonial practice required a person who had been convicted of homicide to compensate the bereaved family -- a form of a wrongful death action.(15) For example, in 1675 a Massachusetts Bay Colony court found a civil defendant liable for having "accidentally discharg[ed] guns at foules on ye neck thereby wounding Samuel Fflacks son so he died." The court ruled the tortfeasor should pay 10 [pounds sterling] to the boy's father.(16)

Notably, numerous 19th-century U.S. decisions permitted common law wrongful death actions.(17) For example, in 1825, a federal district court justified its holding that a wrongful death action could be maintained in admiralty on the ground that the felony-merger rule had "never been adopted in this state" and was "entirely in opposition to the system of civil polity established in this country."(18)

In 1854, the Supreme Court of Georgia expressly distinguished the felony-merger rule as wholly inapplicable where the death was caused by negligence or other noncriminal acts.(19) Similarly, the leading antebellum text on the law of domestic relations made clear that the felony-merger doctrine was irrelevant in the United States.(20) In brief, as a noted commentator concluded,

Ellenborough's blunt announcement that no

civil action can be grounded upon the death of

a human being not only lacked historical

support at the time but was consistently ignored

in America until 1848 (and even later by the

English courts), and during this forty-year

interval [from 1808 to 1848] there was no

instance of a denial of civil action for



It was not until the 1848 decision in Carey v. Berkshire Railroad(22) that a U.S. court decreed that no cause of action for wrongful death had existed at common law. Carey relied entirely on Baker v. Bolton. Other courts followed, citing Carey and Baker, even though the underlying felony-merger doctrine continued to be universally rejected by U.S. courts as having no application in this country.

State wrongful death statutes were adopted in response to Carey and its progeny, as purely prophylactic measures designed to ensure that this perverse and narrow (and incorrect) view of the common law did not leave victims' families without a remedy. Many states also adopted survival statutes to supplement the wrongful death remedy, permitting the deceased's estate to prosecute any claims for personal injury that the deceased would have had but for his or her death.

Nonetheless, the myth that there is no common law action for wrongful death, and that legislatures accordingly have a free hand in establishing (and restricting) wrongful death recoveries, has created a perverse situation. Dean Prosser ridiculed it this way: "From the defendants point of view it [is] cheaper to kill a person than to scratch him."(23)

Other scholars have termed the rule "barbarous"(24) and have concluded that "no satisfactory reason for the rule has ever been suggested."(25) Indeed, a legal system that fully compensated even minor injuries while providing inadequate recovery for the ultimate personal injury -- death -- would seem to exemplify the very kind of arbitrariness condemned by the U.S. Supreme Court in cases such as the recent Romer v. Evans.(26)

Moragne decision

Twenty-seven years ago, the U.S. Supreme Court aimed to level this topsy-turvy landscape. In Moragne, it expressly overruled its 1886 decision in The Harrisburg(27) and held that the general maritime law -- one of the few areas of judge-made federal common law -- did afford a cause of action for wrongful death.(28)

The Court based its ruling in large part on its reevaluation of both English and American legal history. Pointedly, that reassessment revealed that "the historical justification marshaled for the [felony-merger] rule in England never existed in this country."(29) As the Court explained, the absence of wrongful death suits "in primitive English legal history ... was based on a particular set of factors that had, [even in 1886], long since been thrown into discard even in England, and that had never existed in this country at all."(30)

Following Moragne, several state courts have recognized that wrongful death actions are properly regarded as having their genesis in common law rights, not legislative largesse. Chief among those courts has been the Supreme Judicial Court of Massachusetts, whose erroneous 1848 decision in Carey v. Berkshire marked the first time a U.S. court embraced Lord Ellenborough's characterization of the common law and thus inaugurated the baleful trend.

In 1972, two years after Moragne was decided, Massachusetts's high court expressly overruled Carey, observing that

the law in this Commonwealth has also evolved

to the point where it may now be held that the

right to recovery for wrongful death is of

common law origin, and we so hold. Consequently,

our wrongful death statutes will no longer be

regarded as "creating the right" to recovery for

wrongful death.(31)

Six years later, the Illinois Supreme Court described the view that wrongful death actions are wholly statutory in nature as "a much criticized concept stemming from questionable antecedents."(32)

The following year, the Supreme Court of Alaska explained that it did not find that state's wrongful death statute to be in derogation of the common law, because "if there were no statute, we would in all probability follow the lead of the United States Supreme Court in Moragne."(33)

In 1984, the Supreme Court of Alaska again rejected the proposition that wrongful death statutes are in derogation of the common law and therefore should be construed strictly."(34)

Similarly, in 1985, the Arizona Supreme Court acknowledged that "it appears ... that reliance on Baker as the basis for lack of recovery at common law may be misplaced."(35) The court held that wrongful death "statute and precedent have combined to produce a cause of action with common law attributes."(36) The court explained that even if the Arizona legislature had "believed that it was creating a new statutory right of action in enacting the Wrongful Death Acts," there was "no evidence to suggest that [the legislature] intended to occupy the field completely, thus leaving no room for future judicial initiative."(37)

Stare decisis is no bar

To be sure, other courts have declined to follow Moragne, usually citing considerations of stare decisis and the longstanding nature of state wrongful death statutes.(38) But plaintiffs seeking to challenge the continued vitality -- and constitutional legitimacy -- of statutory limitations on common law wrongful death claims ought not be deterred by either factor. After all, neither one impeded the Moragne Court from overruling an 84-year-old precedent.

Indeed, neither stare decisis nor the mere passage of years provides sufficient justification for perpetuating Baker's inequitable results. The fact that it took more than 150 years for scholars and the U.S. Supreme Court to correct Lord Ellenborough's errors is no reason why other courts should continue to replicate his (or perhaps his scribe's) mistakes.

Nor should the doctrine of stare decisis stand as an insuperable shield against correcting injustice. As the U.S. Supreme Court recently explained, "Stare decisis is not an inexorable command; rather, it `is a principle of policy and not a mechanical formula of adherence to the latest decision.'"(39)

Automatic allegiance to dogma is particularly inappropriate where, as in this area,

* state constitutional rights and not mere statutory interpretations are at issue;(40)

* the sort of reliance interests that exist in cases involving property and contract rights are not present;(41)

* relatively few courts have squarely addressed the issues or carefully surveyed the relevant history;(42) and

* new facts, specifically those about the customs observed by colonial American courts, have been uncovered.

Moreover, the common law has always been regarded as the special domain of the courts and been subject to judicial modification when society's needs dictate change. There is no legitimate reason for the courts to refrain from correcting judicial error and from returning to the proper historical understanding of wrongful death actions under the common law.

If wrongful death suits are recognized as arising under the common law and not as being solely statutory in origin, then statutorily proscribed recoveries should be viewed not as a matter of legislative grace -- as creating a remedy where none has existed before -- but rather as caps on damages. Furthermore, this fresh understanding of colonial practices is relevant to contemporary issues such as --

* what types of damages are available (for example, loss of consortium, loss of society, loss of services, mental anguish);

* whether equitable tolling principles can be applied to statutes of limitation;

* what kinds of people are entitled to bring suit (for example, equitably adopted children); and

* whether wrongful death actions may be brought on behalf of fetuses.

In cases outside the wrongful death category, courts in many jurisdictions have invalidated damages caps and other restrictions on who can sue, when, and why. Courts have condemned these limitations as arbitrary measures that violate state constitutional guarantees of substantive due process, the right to jury trial, and the right to a complete and certain remedy. Courts have also condemned these limitations as legislative remittiturs that invade the province of the judiciary, contrary to the separation of powers principle.

Plaintiffs should enlist these same clauses and arguments to mount across-the-board challenges to the constitutionality of wrongful death statutes or to contest particular limitations imposed thereby. In their complaints and in limine motions, plaintiffs' attorneys should argue that wrongful death actions are common law in nature rather than wholly statutory in origin. Accordingly, any arbitrary limitation on wrongful death actions or recoveries should be held to violate an assortment of constitutional guarantees.

In the words of Justice Felix Frankfurter, "Wisdom too often never comes, and so one ought not reject it merely because it comes late."(44) It is time for courts, aided by plaintiffs, attorneys, to correct a century's worth of misconceptions about our common law heritage. These have bedeviled wrongful death actions, denying too many bereaved families their full measure of justice.


(1.) Although most states have two- or three-year statutes of limitations, five states -- California, Kentucky, Louisiana. Pennsylvania, and Tennessee -- mandate that wrongful death claims must be filed within one year.

(2.) For example, nine states -- Arizona, Arkansas, Colorado, Iowa, Kansas, Nebraska, Nevada, New York, and West Virginia -- allow recovery to be barred or diminished by a decedent's contributory negligence.

(3.) Twenty states -- Georgia, Hawaii, Illinois, Iowa, Kansas, Massachusetts. Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, Washington, and Wisconsin -- restrict recoveries to compensatory damages. One state -- Alabama -- allows punitive damages only.

Of the 20 states that restrict recoveries to compensatory damages, 6 further limit awards to compensation for demonstrable pecuniary losses: Georgia, New Jersey, New Mexico, New York, Ohio, and Rhode Island.

(4.) Nine states -- Alabama, Alaska, Colorado, Idaho, Kansas, Maine, New Hampshire, Oregon, and Wisconsin -- cap damages at preset amounts, some as little as $50,000 for a decedent who left no widow or dependents (New Hampshire) or $100,000 for any and all claimants (kansas).

(5.) Arnett v. Kennedy, 416 U.S. 134, 154 (1974) (plurality opinion, per Rehnquist, J.).

(6.) 389 U.S. 379, 389 n.2 (1970).

(7.) 1 Camp. 493, 170 Eng. Rep. 1033 (nisi prius 1808) ("in a civil court, the death of a human being cannot be complained of as an injury").



(10.) See generally Wex S. Malone, The Genesis of Wrongful Death, 17 STAN. L. REV. 1043, 1055 (1965).

(11.) See generally George E. Woodbine, The Origins of the Action of Trespass, 33 YALE L.J. 799, 803 (1924).

(12.) See, e.g., Osborn v. Gillett, 8 L.R. 8 Exch. 88, 96 (1873) (Bramwell, B., dissenting).

(13.) Malone, supra note 10, at 1065-66 (emphases added).

(14.) Van Ness v. Pacard, 2 pet. 137, 144 (1829).

(15.) See generally Malone, supra note 10, at 1062-65.

(16.) 1 Mass. Ct. Assts. 54-55 (1675).

(17.) See, e.g., Cross v. Guthery, 2 Root 90, 92 (Conn. 1794); Piscatauqua Bank v. Turnley, 1 Miles 312, 316 (Phila. Dist. Ct. 1836); Ford v. Monroe, 20 Wend. 210 (N.Y.Sup. Ct. 1838); James v. Christy, 18 Mo. 162, 163-64 (1853); Kake v. Horton, 2 Haw. 209, 212-13 (1860); Sullivan v. Union Pac. R. Co., 23 F. Cas. 368, 371 (No. 13,599) (C.C. Neb. 1874).

(18.) Plummer v. Webb, 19 F. Cas. 894, 895-96 (No. 11,234) (D. Me. 18250, dism'd on appeal for lack of admiralty juris., 19 F. Cas. 891 (No. 11,233) (C.C. D. Me. 1827).

(19.) Shields v. Yonge, 15 Ga. 349, 355-56 (1854).

(20.) REEVES, DOMESTIC RELATIONS 377 (Am. ed. 18160.

(21.) Malone, supra note 10, at 1067 (emphasis added).

(22.) 55 Mass. (1 Cush.) 475 (1848).


(24.) FREDERICK POLLOCK, LAW OF TORTS 55 (Landon ed., 1951).

(25.) FRANCIS BUCHANAN TIFFANY, DEATH BY WRONGFULACT [sections] 12 (2d ed. 1913).

(26.) 116 S. Ct. 1620 (1996).

(27.) 119 U.S. 199 (1886).

(28.) 398 U.S. 379.

(29.) Id. at 384.

(30.) Id. at 381 (emphasis added).

(31.) Gaudette v. Webb, 284 N.E.2d 222, 229 (Mass. 1972).

(32.) Wilbon v. D.F. Bast Co., 382 N.E.2d 784, 790 (Ill. 1978).

(33.) Haakanson v. Wakefield Seafoods, Inc., 600 P.2d 1087, 1092 n.11 (Alaska 1984).

(34.) Hanenbuth v. Bell Helicopter Int'l, 694 P.2d 143, 145-46 (Alaska 1984).

(35.) Summerfield v. Superior Court, 698 P.2d 712, 716 (Ariz. 1985).

(36.) Id. at 718.

(37.) Id. at 717. See also RESTATEMENT (SECOND) OF TORTS [sections] 925, cmt. k (1979).

(38.) See, e.g., Ecker v. Town of West Hartford, 530 A.2D 1056, 1062 (Conn. 1987); Sullivan v. Carlisle, 851 S.W.2d 510, 516 (Mo. 1993); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 356 n.7 (Tex. 1990).

(39.). Payne v. Tennessee, 501 U.S. 808, 827-28 (1991) (citations omitted).

(40.) Id. at 828. See generally United States v. Barnett, 376 U.S. 681, 699 (1964); Smith v. Allwright, 321 U.S. 649, 665 (1994); Rutan v. Republican Party of Illinois, 110 S. Ct. 2729 2756 (1990) (Scalia, J., dissenting).

(41.) Payne, 501 U.S. 808, 828. See generally Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965); Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-11 (1932); (Brandeis, J., dissenting); United States v. Title Ins. & Trust Co., 265 U.S. 472 (1924); The Genesee Chief v. Fitzhugh, 13 L. Ed. 1058 (1852).

(42.) See generally Brecht v. Abrahamson, 113 S. Ct. 1710, 1718 (1993), citing Edelman v. Jordan, 415 U.S. 651, 670-71 (19740; Perry v. Thomas, 482 U.S. 483, 493 (1987) (Stevens, J., dissenting) ("Since none of our prior holdings is on point, the doctrine of stare decisis is not controlling." (citation omitted)).

(43.) See generally Webster v. Reproductive Health Serv., 492 U.S. 490, 558 (1989) (Blackmun, J., concurring in part and dissenting in part) (citations omitted).

(44.) Henslee v. Union Planters Bank, 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).

Jonathan S. Massey, a former law clerk to retired U S. Supreme Court Justice William J Brennan Jr., is a sole practitioner in Washington, D. C. Ned Miltenberg is associate general counsel in ATLA's Legal Affairs Department.
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Date:Jan 1, 1997
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