New Jersey’s Wrongful Death Act and Survival Statute – NJ Accident Lawyers, Koles, Burke &
A wrongful death claim is a lawsuit that arises when an individual is killed as a
result of the conduct of another person. A wrongful death lawsuit is different from other types of
personal injury claims because the actual victim (the "decedent") is not the person
bringing the lawsuit; rather, it is the family members of the decedent or the representative for the
decedent's estate who are initiating the lawsuit.
Survivor Action Compensates for Losses to
A wrongful death claim is brought to recover damages for the injuries that the
surviving family members and/or decedent's estate have suffered due to the death of the victim.
Pursuant to New Jersey's Wrongful Death Act and Survival Statute, the heirs and dependents of a
person killed in an accident are entitled to legal remedies. The damages recovered do not include
damages that are personal to the decedent, since the decedent is not allowed to recover for pain and
suffering, mental distress, or any other form of compensatory damages. Under New Jersey law, a
separate statutory remedy called a survivor action compensates for losses to the decedent.
Technically, monetary awards in a survivor action belong to the decedent's estate. However, since
the victim's heirs are typically the ultimate beneficiaries of the decedent's estate, the victim's
family members will receive any resulting recovery. Recovery on a survivor action is subject to
attachment by the creditors of the victim.
New Jersey's Wrongful Death Act Compensates the
Family of the Victim
The purpose of the wrongful death suit is to provide relief to family
members who have been injured emotionally and financially as a result of their family member's
death. In many cases, a significant component of this recovery is for the loss of financial support
provided by the decedent. This amount is based on the amount of monetary contribution the decedent
might reasonably been expected to provide to the survivors, as adjusted for inflation, and
discounted to reflect the present value of future projected earnings, as explained below.
Jersey's Wrongful Death Act also allows for recovery for loss of companionship; the monetary value
of parental guidance and care provided by the victim to his or her dependents; the value of
household services provided by the victim, such as cleaning, babysitting and other household duties;
and hospital, medical and funeral expenses of the victim. Punitive damages and damages for loss of
emotional support are not recoverable.
New Jersey's Wrongful Death Act does not allow for
recovery for emotional distress caused by the death of the victim. A separate tort action for the
negligent infliction of emotional distress is required. This requires a showing that the defendant's
negligence was the cause of death or serious injury of another; a close familiar relationship
existed between the plaintiff and the victim; and the plaintiff actually observed the death or
injury at the scene of the accident, resulting in severe emotional distress to the
Damages recovered in a wrongful death action are not subject to attachment by the
creditors of the decedent. Damages recovered are for the sole benefit of the victim's heirs, and
priority is given to the dependents of the victim.
Discounting Damages to Reflect Present
In many wrongful death cases, a significant component of the recovery is for the loss of
financial support provided by the decedent. Typically, this amount is calculated by multiplying the
decedent's earnings at the time of death by the number of anticipated years before retirement or
expected death using a life expectancy table.
For example, if a spouse at age 40 is earning
$50,000 at the time of death, and he was not expected to retire or die for the next 25 years, his
yearly earnings would be multiplied by the number of years he was expected to continue working
($50,000 x 25). In this example, the expected future loss would be $1,250,000.
When using a
life expectancy table to calculate future losses, courts will often reduce the total future loss to
a present dollar value. Since most wrongful death damage awards are paid in a lump sum, a
beneficiary essentially receives the total amount of earnings and benefits the decedent would have
made over the course of his/her life, reduced to a single amount which is discounted to present
dollars. The purpose for using present value is to ensure that a successful plaintiff will receive a
sum that if invested at a reasonable interest rate, should equal the value of the future loss amount
and cover expenses that may eventually arise, provided it is conservatively invested.