for the death of a seaman, as defined by the Jones Act, occurring on the high seas, the Jones Act provides for pre-death pain and suffering. Under California law, punitive dam-
ages are recoverable in a survival action only if the decedent would have been enti- tled to recover punitive damages if he or she had lived. (Code Civ. Proc., § 377.34.) Thus, punitive damages are recoverable only if a provable interval of time elapsed between damage to the decedent’s prop- erty, or personal injury to the decedent, and death. (Stencel Aero, at p. 982; Pease v. Beech Aircraft Corp. (1974) 38 Cal.App.3d 450, 459-461 [denying the existence of any survival claim on which to base puni- tive damages where decedent’s death occurred immediately at the time of the
crash]; but see, Garcia v. Superior Court (1996) 42 Cal.App.4th 177, 185-186 [not- ing punitive damages may be based on any damage actually suffered, even if damage would not result in compensatory damages, citing numerous cases].) Even when a survival action could be
claimed, perhaps due to physical injury or property damage suffered during the aircraft’s rapid descent but prior to ground impact, defendants will argue punitive damages are minimal because they would be limited to a single digit multiplier of the value of such minor injuries or property damage under State Farm Mutual Auto Ins. Co. v. Campbell (2003)538 U.S. 408 and its progeny. Under this argument, by disallowing any recovery for a decedent’s pre-death pain
and suffering, California limits the base damages to which the Campbell multiplier can be applied. However, even Campbell recognized that “where a particularly egregious act has resulted in only a small amount of economic damages” a high ratio of punitive damages to compensa- tory damages is warranted. (Id., at 425.) Against this factual backdrop, this
article addresses California’s structural under-valuation of human life and pain and suffering in cases in which a person is killed through a tortious act. This under-valuation is problematic because: it unquestionably provides an inaccurate- ly low measure of the value of human life for purposes of evaluating the costs and benefits of harm causing activity; and it fails to appreciate the special moral
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JANUARY 2012 The Advocate Magazine — 57
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