Over at the WSJ Law Blog:
A factual situation: A woman gets pregnant. Six weeks later, the father is killed in an accident.
The legal question: May the child of the father, who was still very much in utero when the father was killed, later bring a wrongful-death action against his father’s killer?
The answer to this question is — at least should be — obvious.
When a person dies as the result of someone else’s negligent, reckless, intentional, or otherwise wrongful conduct, two legal claims arise. First, there’s the “survival” claim, which represents the claim the decedent would have had if they had lived, e.g., the decedent’s claim for any conscious pain and suffering before their death. Second, there’s the “wrongful death” claim, which represents the damage suffered by the decendent’s family as a result of the death, e.g. the value of the services, society and comfort that he or she would have given to the family had he or she lived.
Here’s the Pennsylvania Superior Court on it, writing in one of a thousand opinions explaining the purpose of the wrongful death act:
A wrongful death action allows a spouse, child or parent of a deceased to bring an action to recover damages for the death of an individual caused by the wrongful act or negligence of another. 42 Pa.C.S.A. § 8301.
The purpose of the Wrongful Death Act is to compensate certain enumerated relatives of the deceased for pecuniary loss occasioned to them through the deprivation of the part of the earnings of the deceased which they would have received from him had he lived. Berry v. Titus, 346 Pa.Super. 376, 381, 499 A.2d 661, 664 (1985) (quoting Manning v. Capelli, 270 Pa.Super. 207, 211, 411 A.2d 252, 254 (1979)). See Linebaugh v. Lehr, 351 Pa.Super. 135, 505 A.2d 303, (1986) (purpose of the wrongful death statute is to compensate the decedent’s survivors for their pecuniary losses; it does not compensate the decedent’s estate)…. A family relation is defined to require a showing of pecuniary loss by the relatives seeking damages as a result of the wrongful death of the decedent; there must be a pecuniary loss by one in a family relation before there is any recovery in damages.
Hodge v. Loveland, 456 Pa.Super. 188, 690 A.2d 243 (1997) (emphasis added).
Com. v. Opperman, 780 A.2d 714 (Pa. Super. Ct. 2001).
New York, where the case covered by the WSJ Law Blog occurred, isn’t any different:
Turning to legislative purpose, the wrongful death statute is intended to “promote the public welfare” (Raum v Restaurant Assoc., 252 AD2d 369, 371  [Rosenberger, J., dissenting], supra), and its goals “are to compensate the victim’s dependents, to punish and deter tortfeasors and to reduce welfare dependency by providing for the families of those who have lost their means of support” (Raum v Restaurant Assoc., supra at 374 [Rosenberger, J., dissenting]). Thus the wrongful death statute is intended to compensate the pecuniary losses first and foremost of the decedent’s immediate family, that is, his or her spouse and children, those most likely to have expected support and to have suffered pecuniary injury (see generally,).
Langan v. St. Vincent’s Hosp., 765 N.Y.S.2d 411 (2003).
Little surprise the defendant in this particular case, Suffolk County, lost: the New York wrongful death statute was meant to support people like Jose A. Feliciano-Colon, who lost his father when “an officer tripped over a tree root and bumped into another officer, who accidentally fired three shots, one of which struck Colon in the side of the head, killing him.” The normal rule in the United States is that “posthumous birth” results in the child being treated the same as if they had been alive at the time of the parent’s death. No reason to do it differently here, particularly not in light of the policies underlying the Wrongful Death Act.
Having lost, the Suffolk County attorney couldn’t help but complain:
County Attorney Christopher A. Jeffreys told Fass he was disappointed both with the panel’s conclusion and its failure to explicitly address whether the son’s claim was impermissibly speculative.
“This decision doesn’t help with the issue that is presented,” Jeffreys said. “The issue is, How is this going to be proved? How am I going to defend against a speculative claim? This doesn’t provide the guidance that either side was looking for.”
There’s nothing “speculative” about it. The child’s mother and others who knew the father can testify, to the best of their knowledge, information, and belief as to what kind of emotional, social and pecuniary support the father likely would have given the child. We would know the answer to this question if the defendants had not shot the father in the head; we can’t take that back, so we have to use the best evidence we can, then we’ll ask the jury what verdict they find. He can defend against it the same way he defends against the rest of the case, by asking witnesses questions and by presenting documents.