Wrongful Death Action for the Loss of a Minor

A wrongful death lawsuit can be a painful ordeal for a family that has lost a loved one, but it may be necessary to provide the family with financial support, and, in some cases, it may be necessary to seek justice for the loss suffered. Generally, parents and spouses or domestic partners are permitted to seek compensation for the loss of a loved one, whether the loved one is a minor or an adult. However, there may be some issues to keep in mind when the loss is of a minor child.

In order to pursue a wrongful death action for a child, the child has to have been born alive. This means that the parents of a stillborn child cannot pursue a wrongful death suit even if the child was viable before death. However, if the child was born alive and died shortly after, it is possible that the parents can seek compensation in a wrongful death action, even for negligent or intentional actions that were committed before the child was born and that ultimately lead to the death of the child.

One of the main differences between a wrongful death lawsuit for a minor and an adult is in the award of damages. With an adult, the cost of the deceased’s lost income, future earnings, and even pension costs can easily and readily be calculated into the award. For a child, these costs can only be considered if the child was earning a living and supporting the family. In some cases, future earnings a child may have used to support the parents and any reasonable value of household services the child would have provided can be taken into account if they are reasonably certain. Parents can also recover for the funeral and burial expenses. A jury may be instructed to subtract the parents’ contribution or expenses for the child’s support and education, which may reduce any award the parents may receive for a child’s future earnings.

Unfortunately, parents cannot recover for the pain and suffering or grief associated with the death of their child. However, they may recover for the non-economic loss of love, companionship, comfort, care, and affection that they would have received from their child. A jury may tend to award a larger award for these losses than the economic losses.

If you have suffered the loss of a loved one, especially a minor child, through the negligence of another, you should contact an experienced personal injury attorney for more information on how you may file an action for wrongful death. For a free consultation, contact the passionate San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P., serving Santa Clara County, San Mateo County, Monterey County, Alameda County, San Benito County, and the Bay Area.

• Justus v. Atchison, 565 P. 2d 122 - Cal: Supreme Court 1977