California Law’s Limit to Recovery for a Child Death

California law does limit damages a parent can claim for the death of his or her child. Under the California Code of Civil Procedure Section 377.34, monetary recovery is limited for any loss or damage that the decedent child sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent child would have been entitled to recover had the decedent child lived, but this does not include damages for pain and suffering or disfigurement.

This means California law wants to give parents the right to sue for any punitive damages, also known as exemplary damages (i.e., damages that go beyond mere negligence, in order to financially punish the party, parties, or institution that caused the child’s death to help deter the action from ever happening again). The only claims a parent cannot sue for are the child’s actual pain and suffering he or she would have experienced had he or she lived, or for any disfigurement injuries. The pain and suffering a child experienced prior to death are compensable under California law.

Legal Defenses in a Child’s Wrongful Death Claim in California

The available legal defenses to a child’s wrongful death claim in California are the same as those legal defenses to a claim for a typical personal injury claim. A claim may be barred for failure to bring a claim within the statute of limitations (see infra). Other available legal defenses include causation (how the injury occurred) and comparative negligence (was another party partly at fault for the injuries of the injured child, or was the injured child actually partly at fault?).

In order to hold a defendant (negligent or at-fault party) responsible for the wrongful death of a child, a parent must prove that the defendant’s conduct was the cause of the child’s death. To satisfy this requirement, the parent must show a connection (nexus) between the defendant’s conduct and the injury; the parent must show that, were it not for the defendant’s actions or omissions, the injury would not have occurred. The parent does not have to show that the defendant was the only responsible party. For example, if the defendant’s vehicle crashes into the child’s vehicle, pushing it into the path of an oncoming truck, the defendant will still be liable, as he or she set in motion the chain of events leading to the child’s death.

It is also important to show, in some cases where death does not immediately occur, a continuous causal connection from the fault to the injury in a child wrongful death claim. This continuous causal connection is analogous to a straight line starting from the fault to the injury. This causal connection must exist in order for the defendant to be held legally accountable. For example, the defendant’s vehicle crashes into the child’s vehicle; the child suffers from severe headaches, but he or she does not seek medical attention for several weeks for whatever reason, and the hospital has difficulty correctly diagnosing the source of the child’s pain. The child eventually dies in the hospital. While, in this example, the hospital may be found negligent for the delay in diagnosis, the cause of death may be determined to be the child’s failure to seek prompt medical attention, if earlier treatment would have prevented his or her death. In this example, the causal connection has been broken by the child’s failure to receive immediate and consistent medical attention.

Comparative negligence, as mentioned above in the calculating damages section, is conduct by the child that contributed to the child’s own injuries or death. If the decedent child is found to be comparatively negligent, the amount of damages awarded will be reduced by the percentage of fault assigned to the decedent child. For example, let’s say a child is playing with other children near a busy intersection and accidentally trips or runs through a busy street. The defendant does not see the child and strikes the child, killing him or her. The child, in this example, may be found comparatively negligent for not paying attention.

Another defense to a child’s wrongful death action in California is the statute of limitations defense. However, if a minor child in California does not die from an injury, it is tolled until his or her eighteenth birthday in most cases. (See the following section for more details on the California statute of limitations and children.)

Mark Blane
Founder of The Law Offices of Mark Blane, APC
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