Whistleblowers — continued from Previous Page
insufficient to support a claim for puni- tive damages, because California’s sur- vival statute expressly bars recovery of damages for emotional distress, pain and suffering. (Re: Air Crash Disaster at Sioux City Iowa (N.D. Ill. 1991) 760
F.Supp. 1283, 1285.) While the Sioux City decision is unquestionably in error, such a mistake is understandable given this anomaly in California law. In Pease it was held that no survival action existed because the decedents “... died as a result of this acci- dent and in this accident.” In light of this stipulation, the court held plaintiffs would be unable to show that any cause of action arose during the lifetime of any of the decedents. In Stencel, supra, decided two years
later, the plaintiff specifically pleaded that the decedent suffered property dam- age prior to his death. The accident sequence occurred while the aircraft was taxiing, and the decedent pilot was required to activate the seat ejection sys- tem. The decedent’s personal property (a wallet, watch, and small “kit” bag con- taining personal items, valued at $200, was instantly damaged by the rocket blast of the ejection mechanism. The decedent
was killed when the parachute on the ejector seat failed to open seconds later. The court found this passage of time suf- ficient for plaintiff to withstand the defendant’s effort to strike the punitive damages claim. In Rufo v. Simpson (2001) 86
Cal.App.4th 573, 522, 527, fn. 15, the court held that $25 million in punitive damages against O. J. Simpson was prop- erly based upon the damage to the cloth- ing and personal property of the victims during the attacks. The resulting rule is that a cause of
action for punitive damages will survive the decedent “... if the decedent sur- vived the accident, however briefly, or if the property of the decedent was dam- aged or lost before death.” (Grimshaw, supra at p. 829.) But no cause of action for punitive damage will survive if the tortfeasor’s conduct “... dispatches (the decedent) straightaway.” (Ford Motor Co., v. Superior Court (1981) 120 Cal.App.3d 748, 753, Poche, dissenting). This dis- tinction has been the subject of criticism by California judges, yet it remains viable law. The argument is that when the decedent is killed instantly and with- out warning, he had no claim at the
time of his death which may have sur- vived him. But the problem is that the valid
distinction between wrongful death and survival actions has been allowed to per- petuate a system which for no rational purpose prohibits punitive damages if the decedent is killed instantly. This bars an otherwise effective means through which the proper level of deterrence or cost-internalization can be obtained, given the artificially limited damages recoverable in a survival action. The Grimshaw court recognized the
anomaly created by drawing a line at the instant of death for recovery of punitive damages, and addressed the anomaly in two ways. First, the court tried to mitigate the
harshness of the bright line rule by not- ing that “[w]hen life ends, as well as when it begins, has long been a contro- versial subject in legal and medical cir- cles. It may well be a medical rarity for death to occur simultaneously with the infliction of death-causing injury. (Grimshaw, supra, at 833, fn. 28.) Under this reasoning, the rule is of no practical effect because one never dies instantly.
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