Whistleblowers — continued from Page 56
condemnation reserved for tortious con- duct that results in death and the special value of human life.
California artificially limits death damages
California’s limitations on damages
in death cases are rooted in the history of the creation of death claims, but are ripe for reconsideration. No right existed at common law to pursue recovery for the death of another caused by a tortious act. California enacted its wrongful death statute in 1862, which included a provi- sion for recovery of exemplary damages. In 1874 California removed the provision for exemplary damages. In 1949, California created a sepa-
rate statute allowing for the survival of the decedent’s personal causes of action. Recovery under this statute did not include “...damages for pain, suffering or disfigurement, nor punitive or exemplary damages...” (Former Cal. Civ. Code, §956, 1949 Cal. Stats. ch.1380, p. 2400.) In 1961 California’s Law Revision Commission recommended that the sur- vival statute be amended to allow for recovery of punitive damages, as well as to allow for recovery of damages for pain and suffering. Regarding punitive
damages, the Commission report noted “
...there are no valid reasons for this limi- tation.... The object of awarding such damages being to punish the wrongdoer, it would be particularly inappropriate to permit him to escape such punishment in a case in which he killed rather than only injured his victim.” (3 Cal. Law Revision Comm. Rep. pp. F-1, F-7 (1961).) The California Legislature adopted the Commission’s recommendation regard- ing punitive damages, but not with respect to damages for pain, suffering and disfigurement, which remain unavail- able to plaintiffs. (Grimshaw, supra, at 828, fn. 24.) On the issue of damages for pain
and suffering, the Law Revision Commission report reasoned that to dis- allow pain and suffering damages would produce “a windfall for the wrongdoer.” (Commission Report, supra, at p. F.) But the Commission report was accompanied by the report of its research consultant, Leo V. Killion, Esq., who argued that pain and suffering damages should not be recoverable because they were difficult to calculate; juries in death cases would be overly sympathetic and award irrational sums; and pain and suffering were “pecu- liarly personal elements of damage” that
would not be redressed by an award of damage to the estate. (Id., at p. F. But Killion’s argument is entirely
inconsistent with the argument in his preceding section that causes of action for libel, slander and infliction of emo- tional distress (among others) should sur- vive. In responding to an argument these claims include non-pecuniary damages, Killion responded that these questions go to the existence of the tort, not its surviv- ability, and that if the tort is to have the dignity of existence, it must have the dig- nity of survival. Killion fails to justify why a decedent’s pain and suffering is treated any differently. But the Legislature sided with
Killion, with the result that California law undervalues the pain, suffering and loss of the life of the decedent in all tort actions involving death. Some California courts have recognized this shortcoming. In Romo v. Ford Motor Co. (2003) 113 Cal.App.4th 738, the court admitted that “no one would deny that a decedent has lost something valuable when he or she loses life ... (but recognized that under California law) ¶ The decedents were not – and could not be – adequately compen- sated for the loss of their lives.” (Id., at 760, emphasis in original.)
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jpugh@epssg.com 58 — The Advocate Magazine JANUARY 2012 Jane Riley-Pugh
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