Damages for Wrongful Death

1
Damages for Wrongful Death
2
Wrongful Death and Survival Statutes Distinguished

• Survival Statutes
• protect interests of decedent

3
Indiana Survival Statutes

• IC 34-9-3-1
• (d) If an individual who is entitled or liable
  in a cause of action dies, the cause of action
  survives and may be brought by or against the
  representative of the deceased party except
  actions for

• (1) libel
• (2) slander
• (3) malicious prosecution
• (4) false imprisonment
• (5) invasion of privacy and
• (6) personal injuries to the deceased party

4
Indiana Survival Statutes
IC 34-9-3-4 (a) This section applies when a
person (1) receives personal injuries caused by
the wrongful act or omission of another and (2)
subsequently dies from causes other than those
personal injuries.
5
Indiana Survival Statutes
IC 34-9-3-4 (contd) (b) The personal
representative of the decedent who was injured
may maintain an action against the wrongdoer to
recover all damages resulting before the date of
death from those injuries that the decedent would
have been entitled to recover had the decedent
lived. The damages inure the exclusive benefit of
the decedents estate.
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Wrongful Death and Survival Statutes Distinguished

• Survival Statutes
• protect interests of decedent
• Wrongful Death Statutes
• generally protect interests of designated
  sub-class of survivors of decedent
• some have measure of damages to protect pecuniary
  losses to decedents estate

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Indiana Wrongful Death Statute

• IC 34-23-1-1
• When the death of one is caused by the wrongful
  act or omission of another, the personal
  representative of the former may maintain an
  action therefor against the latter, if the former
  might have maintained an action had he or she, as
  the case may be, lived, against the latter for an
  injury for the same act or omission.

8
Indiana Wrongful Death Statute

• IC 34-23-1-1 (contd)
• When the death of one is caused by the wrongful
  act or omission of another, the action shall be
  commenced by the personal representative of the
  decedent within two (2) years, and the damages
  shall be in such an amount as may be determined
  by the court or jury, including, but not limited
  to, reasonable medical, hospital funeral and
  burial expenses, and lost earnings of such
  deceased person resulting from said wrongful act
  or omission.

9
Indiana Wrongful Death Statute

• IC 34-23-1-1 (contd)
• That part of the damages which is recovered for
  reasonable medical, hospital, funeral and burial
  expenses shall inure to the exclusive benefit of
  the decedents estate for the payment thereof.
  The remainder of the damages, if any, shall . . .
  inure to the exclusive benefit of the widow or
  widower . . . and to the dependent children, if
  any, or dependent next of kin, to be distributed
  in the same manner as the personal property of
  the deceased.

10
Indiana Wrongful Death of Child Statute

• IC 34-23-2-1
• (b) An action may be maintained under this
  section against the person whose wrongful act or
  omission caused the injury or death of a child.
• Child is defined as unmarried individual
  without dependents who is less than 20 years old
  or less than 23 and enrolled in institution of
  higher education . . .

11
Indiana Wrongful Death of Child Statute

• IC 34-23-2-1 (contd)
• (e) In an action to recover for the death of a
  child, the plaintiff may recover damages
• (1) for the loss of the childs services
• (2) for the loss of the childs love and
  companionship and
• (3) to pay the expenses of hospital, medical,
  funeral, burial, psychiatric treatment, uninsured
  debts, administration of childs estate

12
Wrongful Death Recovery

• Statutory Remedy
• Not available at common law
• Details of recovery are controlled by applicable
  statute

13
Damages to Personal Property

• Basic rule of measure of damages
• FMV of property before injury minus FMV after
  injury
• Cost of repair under certain circumstances
• COR may not exceed value of property

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Punitive Damages
Owens-Illinois, Inc. v. Zenobia

• Standard of conduct justifying punitive damages
• Plaintiffs burden of proof

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Punitive Damages

• IC 34-51-3-4
• A punitive damage award may not be more than the
  greater of
• (1) three (3) times the amount of
  compensatory damages awarded in the action
  or
• (2) fifty thousand dollars

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Punitive Damages

• IC 34-51-3-6
• Defendant pays entire punitive damage award to
  clerk of court.
• Clerk pays Plaintiff 25 and Treasurer of State
  75
• Treasurer of State deposits payment into violent
  crime victims compensation fund..

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Punitive Damages
IC 34-51-3-1- Before a person may recover
punitive damages in any civil action, that person
must establish, by clear and convincing evidence,
all of the facts that are relied upon by that
person to support the recovery of punitive
damages.
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Punitive Damages

• IC 34-51-3-3
• A jury in a case subject to this chapter may not
  be advised of
• (1) the limitation on the amount of a punitive
  damage award under section 4 of this chapter or
• (2) the requirement under section 6 of this
  chapter concerning allocation of money received
  in payment of a punitive damage award.

19
Punitive Damages
IC 34-51-3-6 . . . When a judgment that
includes a punitive damage award is entered in a
civil action . . . payment provisions discussed
above