Children’s Wrongful Death Cases

Mike Ehline

Attorney Michael Ehline

Who Are the Plaintiffs in a Wrongful Death of a Child Case?

The first thing a survivor needs to know is who can sue for a negligent death. Also, this gets discussed in detail in the below video. People who can sue are “plaintiffs.” They include moms, dads, close family members and even homosexual couples in some instances. So anyone who legally adopted the child, or who is the legal parent is always a presumed plaintiff in a death of a child case.

It is Easier to Calculate Damages for Death of a Parent Than a Child

What happens when the negligence of a person in California causes the loss of life to an adult? What if the adult was a provider like a mom or a dad? First off, it is easier to calculate the claimant’s family’s monetary loss than when a small child passes away. So when bad conduct causes the death of a parent, their child can more easily pursue damages. This money gets sought for the loss of support, love, guidance, care, and income.

Contrast Getting Wrongful Death Income Damages for the Death of a Child or Newborn

First off, some kids don’t breathe oxygen and pass away at birth. Thus, various stages of development can determine damages amounts down the road. So a birth injury could go back to a car accident during pregnancy. It could also be from a negligent medical procedure by a doctor. Mother’s should collect any paperwork relevant to her or baby’s health as far back as the emergency room.

Probably it is a good idea to have friends or family members record their testimonies as well. Many of these people may have observed something afoul with the child. Also, often these are trusted people. Their statement could hold weight. But unless these individuals record their testimonies, they could move, forget, or even die in a car crash. Laying a foundation is the hardest part in getting economic damages.

Damages For Negligent Death of a Child are Often Less than for a Wage Earning Adult

Damages for loss of a newborn or small child are few in comparison to when a grown up gets killed. Parents get restricted due to a lack of foundation. In other words, one would have to speculate how much money or love the child would have contributed. Many factors at play basically would require a jury or experts to guess. Some damages are easier to prove. Any child is going to give love and affection for example.

So the surviving adult’s recovery usually gets limited to loss of affection, love. Yes, it is possible to get potential economic expenses. For example, if the child were a genius and had a Harvard scholarship, the parents would have an easier time arguing monetary support. Even then, however, most kids do not help parents financially. In fact, it is usually the reverse.

Contrast Wrongful Birth Damages

When a child got damaged during birth from negligence, it is called a wrongful birth case. Parents are left to provide for impaired or mentally challenged child. Often they incur outrageous costs and expenses. They will sue product manufacturers, physicians, hospitals, and others to get at the deep pockets. To prove damages, they would also want records of how the baby behaved from birth.

Videos and audios showing sluggishness, high-pitched crying, refusal to eat, etc.easy, all help prove the case. But alas, this is tough evidence to collect. Many parents are living in denial. Consequently, they do not keep journals on this. These are things they don’t want to document. Sadly, these are things parents want to forget. But this documentation helps a wrongful birth attorney win the case.

Potential Damages For Wrongful Death and Birth Include “Chores”

Damages recovery would include what the child had expected to provide to the households of the survivors or claimants. Thus, victims can pursue that potential monetary gain. But it is usually a small amount. As discussed, this is due to difficulties in proving the deceased or dependant suckling would have been a primary income provider. Getting a large award often means the child would have been exceptional. Thus, as discussed above, parents might want to show the baby would have been a doctor, lawyer, or professional.

The Bigger the Child Wage Earner, the Bigger the Potential Futures

Had the child grown up and become a big earner, the survivors are always in a stronger position. Cases involving promising child actors and athletes come to mind. Thus, these victims become entitled to more money. But the bottom line is the decedent(s) departed life due to no fault of their own. So this becomes a compensable loss for those that lived.

Contrast Negligently Killed Elders with Dead Minors and Middle Aged Wage Earners

As noted above, a late middle-aged male adult provider probably contributed the most to the household concerning financial support. Hence, he was in the best position to put food on the table for his family. So his wife and kids can go after all the money he’d of provided them over their lives. Conversely, when elderly people get negligently killed, similar recovery limitations arise as with kids. Thus, the potential for future economic recovery becomes limited. (after all, a senior is probably no longer generating income.)

There is quite a bit of speculation involved in doing economic damages work up when there is no record of support provided. Profiling a decedent is what lays the foundation for those damages. You cannot profile a child who has not lived, or grown up to a point reflecting monetary support given. But an elder who is no longer contributing is easily profiled as not being a provider. So, naturally, a wrongful death case involves unique landmines to recovery.

The Jury Cannot Guess at How Much Financial Support Would Have Been Provided

So, naturally, a wrongful death case involves unique landmines to economic losses recovery. Mostly this is true after the loss of a child or elderly person. Intangible and tangible harm like financial losses become much harder to determine in cases like this. Estimations and complete guesswork cannot get used. Thus, amounts the child would have or might have contributed to the support of both their parents need foundational evidence.

Had the child ended up becoming an adult and big earner, then the survivors are always in a stronger position to get real money when the decedent(s) finally departed life due to no fault of their own.

Life expectancy charts are often used by juries to determine a starting point to come up with an answer for such complex calculations. (See Example of a Social Security Life Expectancy Chart Here.) Typically, a life care planner is called in by both sides. So this is done to argue whether the payout should be more, or less depending on who’s side you are on. Only experts can express this type of opinion.

Rules of Court and Evidence

The Rules Court and evidence barring the use of speculation does not mean the parents will be limited to a small recovery. However, the courts of California have frequently affirmed lower recovery amounts in cases that involve the loss of a child due to wrongful death. Consequently, this is called a remittitur.  The following is a non-exhaustive list of potential legal damages a parent can pursue.

So this is what they are entitled to upon proof, as a wrongful death victim when they have lost their child due to negligence:

      • Potential future earnings that get lost – This is about the possible amount of wages the child may have earned throughout their lifetime.
      • Direct expenses – This includes medical expenses, hospital bills, and the cost of the funeral.
      • Loss of consortium (companionship) – This refers to the loss of society, community (affection and love), and when it is pertinent, the monetary support the child provided. Also, it compensates for the loss of benefits they would have become eligible. Examples include retirement, a pension, or any trust (if the child had become profitably employed at the time of death).

It is not very difficult to estimate some damages like funeral costs. Even easier to digest are the tangible, direct expenses get acquired from medical bills. Bus other damages are much for difficult to calculate. Most of all, this is because these damages are more elusive with kids.  So these are things considered as suitable for affection and love (loss of companionship). The process for calculating damages is rather complicated. It is a legal analysis that includes a variety of different factors.

A few of the factors that should get taken into consideration include:

  • The level of dependency the parent had on the childThis refers to situations where the parent had gotten supported in some way by the child. Financial experts can determine this factor. There are several factors courts examine to determine the appropriate level of dependency. So upon the death, certain family members can seek these monetary losses. These factors include the survivor’s circumstances. So this often includes their age and overall health conditions.
  • The nature of the parent and child’s relationship – This is usually very easy to document. So this is when the child’s parent that is making the claim for wrongful death. There are other requirements added by some states. But in California, ultimately this is due to the child’s past regular support by the parent.

Support includes more than just money. It includes love and emotional wellness given. Thus, it is tangible and intangible. Consequently, this requirement helps to prevent parents that were absent from recovering important money. Even if on a short or long-term basis throughout the child’s life, they only get what they deserve. The prevents them from being able to gain financially upon the death of the child. In other words, it prevents unjust enrichment.

What are the Child Death Recovery Factors?

The state of California does not yet adopt these above, additional requirements. But the closer the parent and child’s relationship is, the higher the damages will be.

Examples of Foundational Evidence

Some of the things that can help to show this relationship would include such elements as home movies, joint vacations, photos, holidays. Apparently participating in Father’s Day and Mother’s Day cards, and birthdays, etc. are real proof. Physician appointments and medical bills are sometimes relevant for many reasons.

This kind of paperwork might contain nutrition guides and other pamphlets given to a mother.  Parents would also want any written-down instructions, insurance waivers, discharge paperwork, check in records, hospital notes, medical reports and bills. Additionally, efforts should be made to secure medical images (these include CT scans, x-rays, MRI’s, EKG’s and EEG’s).

  • The employment benefits and earnings that get anticipated This is often difficult to calculate because most children have not yet started a career path.
  • The estimated lifespan for the child – Experts on human life are often consulted to calculate this.
  • The comparative fault amount (if it applies) on the child’s part –The apportionment of responsibility theory gets recognized in the state of California.

This allows for deductions to get made to the value of the case. Also, it gets based on any percentage of fault that may have been contributed by the child. So this is what fuels the issues resulting in an accident causing loss of life. Last, don’t forget to learn more about wrongful death damages in our next article or Youtube Video Series.


UNDERSTANDING AND EVALUATING THE WRONGFUL DEATH CLAIM By Angela L. Freel Rudolph, Fine, Porter & Johnson, LLP – Measure Of Damages For Wrongful Death Of A Minor Child Wrongful Death Actions in California Some Needed Amendments  

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