CALIFORNIA LAW ON THE WRONGFUL DEATH OF A CHILD

This website is devoted to California child injury claims, and it would not be complete without briefly addressing the sad subject of a child’s wrongful death, caused by the negligent or reckless conduct of another. The death of a child is a tragedy that no parent should ever have to endure. Sadly, every year more than six thousand children die from accidental injuries. Perhaps one of the greatest fears of any parent is that their child will predecease them. The pain of this loss may be magnified or more pronounced because of the way or manner in which the child died—for example, as the result of someone’s negligent acts or omissions.

For those parents who are reading this chapter because they are experiencing this tragic loss, I want this chapter to make them aware of the issues, the procedures that may arise, and the specific laws that are relevant to helping them make informed decisions on what to do next in the legal process. As with each state in the United States, there are different laws that apply. Usually, but not always, the law of the state where the child’s death happened will be the law that controls the legal process.

California’s Wrongful Death Law (for a Child Death)

There are special laws in place that govern this type of legal claim. California law recognizes that parents are entitled to certain damages when a child has died. There are some people who believe the thought of a parent requesting monetary compensation for the loss of their child is offensive. It is clear that no amount of monetary compensation will make of for the tragedy of losing a child. However, California law, under the Code of Civil Procedure Section 377.60 (b), does recognize the basis for this type of legal claim and gives a parent of a child the legal right to pursue the responsible party who caused the death of their child in court. The legal action plays an important part in having the negligent party take responsibility for the tragic harm, and it may also aid in preventing any similar harms from happening to others in the future. The legal action may also serve parents in the grieving process by helping them bring closure to the sad events.

California law only allows one cause of action, which means only one lawsuit may be commenced against the responsible party for the child’s death. However, issues may arise if the child’s parents were not married or were separated at the time of the child’s death. Damages may be awarded to each parent separately in these cases—whatever a judge or jury finds equitable and just. Sometimes one parent may bring the wrongful death lawsuit, and the other parent is left out or not named in the lawsuit; in this example, the unnamed parent is entitled to legal notice of the lawsuit, including an entire copy of the lawsuit that was filed in the California court. This is very important because notice must be done through “personal service.” This means a copy must be sent to the person directly by a certified process server so there is a record of the delivery. This legal notice requirement is only required under California law if the unnamed parent’s paternity has been legally established through either an administrative or court order. It is the hope that both parents are communicating well when it comes to the death of their child regardless if they are divorced, not married, or separated.

The failure of one parent to not join the wrongful death lawsuit of their child can bar any future damages or recovery by that parent against the wrongdoer or entity (tortfeasor) that caused the death. There are exceptions that need to be reviewed—for example, when one parent is out of the country or overseas on military callings. Interestingly, in California, if one parent (or heir) refuses to join as a co-plaintiff in the child’s wrongful death lawsuit, he or she may be joined as a defendant so that all heirs are before the court in the same action. Thus the refusing parent named as a defendant is in reality a plaintiff. The failure of one parent, or any heir, to join the lawsuit does not affect the California court’s power to adjudicate the wrongful death action. Yet if you are the parent that is initiating the wrongful death action, and you do not inform the other unnamed parent or other heirs, and you do not have them join the lawsuit (or name them as a defendant for joinder), then you become personally liable to the omitted parent or heirs for whatever damages they could have recovered if they had been joined in the action against the at-fault party. The point is for the unnamed parent, who is not communicating properly with the other parent bringing the action and who has proper notice of the wrongful death lawsuit, to act promptly and consult with an experienced attorney who handles children wrongful death cases so that a proper joinder can be accomplished.

The reality is a settlement will not ensue with only one parent being the plaintiff on a child’s wrongful death lawsuit. The insurance company for the defendant will want to know about the other parent because California law can make the insurance company liable for any subsequent action by a remaining unnamed parent or heir.

The legal process of bringing a child wrongful death action in California is very similar to bringing a personal injury (negligence) action for a child. In California, it must be brought by the parents, or personal representative (PR) of the child’s estate; additionally, the PR must be appointed by the California superior court. A petition is filed (by the parents or personal representative) requesting the court to approve the PR; in the case of the wrongful death of a child, it is quite often both parents (unless some conflict exists between the parents). The PR has full authority to move forward on the wrongful death action in court, including any attempts in accepting or negotiating a settlement. The way the lawsuit is pled by the initiating party is very important because the defense can file for a dismissal of the lawsuit if any errors are found. Therefore it is very important that the parents consult with an experienced California child injury attorney before proceeding legally.