When someone is killed due to the negligence of another there is a civil action commonly known as “Wrongful Death.” In New Jersey we have the Wrongful Death Act; N.J.S.A. 2A:31. This claim is available to the survivors of the person who was killed, and for their monetary losses that they have and will suffer due to the death of the decedent. There is no money in New Jersey for the loss of the love of the person who was killed or the grief that you are experiencing. Only those things which can be equated to money are permitted. Examples would be the loss of the companionship, guidance and counsel of the decedent and the financial support which would have flowed to the survivors from the decedent. Perhaps the best place to look for an accurate description of what is permitted is the New Jersey Model Civil Jury Charge 8.43 Wrongful Death.
Wrongful death damages begin at the moment of death. The Estate of the decedent is also entitled to make a claim for damages under The Survivorship Act N.J.S.A. 2A:15-3. Survivorship damages include the conscious pain and suffering that the decedent endured from the time of the accident up until the moment of his or her death. These damages are separate and distinct from those damages which can be obtained through the Wrongful Death Act. Essentially, it is the Survivor Act which preserves for the decedent’s estate any personal cause of action that the decedent would have had if he or she had survived.
There is one other claim which often occurs when a close family member is present when their loved one is killed. This is known as a Portee claim, and is when a close family member experienced severe emotional distress as a result of the observation of the accident or event which led to the death of the decedent. Also, a Portee claim can also arise when the close family member sustains an injury which does not result in death. The New Jersey Supreme Court case is Portee v. Jaffee, 84 N.J. 88 (1980) and the New Jersey Model Jury Charge can be found here. Joe Maran, a founding member of the firm, was the attorney for the plaintiff Renee Portee who had observed her son Guy die in an elevator accident. This was the first case in the nation allowing this claim for the emotional distress of the mother of the child who was killed.
Wrongful Death actions and their companion cause of action for Survivorship are complex cases. In establishing damages, it is necessary to establish and document the conscious pain and suffering of the decedent prior to death and to promptly submit all medical bills and funeral bills to the appropriate insurance companies for payment. To support the wrongful death claim it is necessary to engage a well-qualified Economist who will assist in calculating the value of the loss of companionship, guidance and support of their loved one. Proving these damages is just as important as proving the fault or liability of the defendants.
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