To begin with, the statutory framework is highly complex. There are five inter-related statutes that determine whether or not a wrongful death and/or survival claim exists. These statutes are RCWs 4.24.010, 4.20.010, 4.20.020, 4.20.046, and 4.20.060. To a large extent, the statutes are written in archaic and convoluted “legalese.” In addition, the statutes can be counterintuitive and often lead to results that are unfair and make little logical sense. Unfortunately, because wrongful death and survival claims in Washington are creatures of statute—not of the common law—courts are bound by the terms of the statutes even when the results seem inequitable and unjust in the extreme.
When considering the potential for state law claims arising after a person’s death, an attorney must do much more than simply look at whether another party’s wrongful conduct caused the decedent’s death or pre-death injury. This is because the Washington statutes only allow certain causes of action if the decedent was survived by certain designated categories of people. Depending on the existence of such beneficiaries, the same negligent, reckless or even intentional conduct can result in a strong legal case or no legal case at all.
The wrongful death statutes create causes of action for certain surviving beneficiaries of the deceased person. In the case of an adult decedent, the beneficiaries are divided into two tiers. The first tier consists of any surviving spouse, state registered domestic partner, children or stepchildren. If there is neither a surviving spouse, domestic partner, child, or stepchild, there is a second possible tier. That second tier consists of any parent or sibling who was financially dependent on the decedent. First or second tier beneficiaries can recover their own damages for the loss of their loved one. But if there was no first or second tier beneficiary, there is no cause of action for wrongful death.
The Washington survival statutes are found at RCW 4.20.046 and .060. RCW 4.20.046 is known as the general survival statute. It purports to preserve all claims the decedent could have brought had he or she survived. RCW 4.20.060 is known as the special survival statute, since it specifically relates to injuries that cause death. Together, the statutes purport to preserve the claims the decedent would have had had he or she not died. Once again, however, the statutes come with a major catch. The special survival statute is unavailable if there are no first or second tier beneficiaries as defined above. And the general survival statute precludes all damages for the decedent’s pre-death pain and suffering if there are no first or second tier beneficiaries, leaving only the possibility of economic damages.
A large body of Washington case law has developed describing this statutory scheme, discussing the requirement of financial dependence for second-tier beneficiaries, explaining the distinctions between wrongful death and survival claims, and otherwise analyzing the permutations and nuances of the wrongful death and survival statutes. Because the statutes are complex, so too are the court decisions.
At Budge & Heipt, we have developed a one-page flowchart as a visual aid toward guiding our analysis of potential wrongful death and survival claims. We believe this guide is immensely useful since we regularly consider potential wrongful death and survival claims. It is worth remembering, though, that the guide itself is no substitute for independent legal research. The guide is a roadmap and an overview to analyzing the potential causes of action, but it does not replace the need for lawyers to review the statutes and the case law independently and to advise potential clients accordingly. Periodic reference to the statutes and case law is a must for any attorney who wishes to practice in this area on a regular basis.
With those caveats, we hope you find this flowchart useful. If you are a potential client with a case arising from the death of a loved one, please call our office for a free consultation. If you are an attorney considering a potential case and want to discuss a potential case or referral arrangement, please feel free contact us here, and we’ll be happy to take the time to talk with you.