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Second, the court recognized that
the distinction “is difficult to explain on the basis of any conceivable, realistic, rational legislative purpose.” (Id., at 834.) The court rejected an argument in favor of the distinction, that punishment and deterrence are best served where pay- ment is required to be made from the tortfeasor to the victim personally. The court said, “[t]he observance of the sug- gested ritual is about as meaningful to the law of punitive damages as the com- mon law ritual of livery of seisin is to modern conveyancing.” (Id., at 834, fn. 29.) This argument also fails to recognize that the defendant will be “deterred pretty well by the pain of paying some- one.” (Ford Motor Co, supra, at 754-755, emphasis in original.) Grimshaw expressly declined to
decide the equal protection question with respect to a plaintiff who died before he could accrue his punitive damages claim. But Grimshaw’s reasoning would compel a finding that the distinction between decedents who die immediately and those who do not has no rational basis, and could not withstand equal protection scrutiny. Pease was decided prior to Grimshaw. None of the purported ratio- nales explains the distinction based on the timing of death. California can address this anomaly
by not only amending it to include recov- ery of a decedent’s pre-death pain and
suffering, but also to provide that a dece- dent’s claim for loss or damage survives “even though a loss or damage occurs simultaneously with the death of the person....” (See, Code Civ. Proc., § 377.20(b); Pease, supra, at p. 460.)
Conclusion A review of the Legislative history
underlying California’s decision to not provide for pre-death pain and suffering damages in survival actions, and the resulting anomaly in California law that persons killed instantly by their tortfea- sors have no claims which survive their death while those victims dispatched with less haste are entitled to have their claims survive, reveals that neither is based on solid reasoning. These unusual aspects of California law arguably result in a “cheaper to kill them mindset” (Romo v. Ford Motor Co., 113 Cal.App.4th at p. 761) and an incentive to kill imme- diately. But the law should avoid absurd results, and accordingly the California Legislature should enact the proposed reforms.
Gregory P. Waters, of Engstrom,
Lipscomb & Lack specializes in product lia- bility, complex civil litigation, general civil lit- igation, and appeals. He is a graduate of University of California, Berkeley and received his J.D. from the University of Southern California Law School.
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JANUARY 2012 The Advocate Magazine — 63
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