Wrongful Death of a Child
The wrongful death of a child is an event that is felt by the parents, family, friends, school, and the community. To say that the death is felt by a number of people is an understatement. The truth is that no words can adequately describe the grief felt by especially the parents when a child dies as a result of the negligence of others leading to the wrongful death of a child. There is no word in the English language to describe or designate a parent who has lost a child to an untimely or wrongful death. A parent who loses a spouse is a widow or widower. A child who loses a parent is an orphan. However, there is no word to describe a parent who has lost a child.
In the State of Florida, the wrongful or negligent death of a child is governed by the Florida Statutes in Section 768.16 through 768.26 which is designated as the Florida Wrongful Death Act.
Pursuant to Section 768.19, Florida Statutes, the right to pursue a case or claim provides:
768.19 - Right of Action.-When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.
Pursuant to Section 768.18, Florida Statutes, survivors are defined. A survivor is a person who under the Florida Statutes is recognized as a parent who can be compensated when there is a wrongful death of a family member. The term survivor includes parents of child who was the unfortunate victim of a wrongful death incident. It is interesting to note that a minor child is defined as a child under the age of 28 years old. If a person who is 28 years of age or older dies, the parents can still bring a wrongful death action IF the decedent was not survived by children or a spouse. There are exceptions to these general statutory provisions and laws for medical malpractice matters.
Pursuant to Section 768.21, Florida Statutes, a parent of a deceased minor child and a parent of an adult child (if there is no spouse or children of the child) may recover for mental pain and suffering. Damages are calculated according to the joint life expectancy of the parent and child. Let's assume that a 9 year-old child dies as a result of an automobile accident. The father of there child was 45 at the time of the death. The mother was 40 years old at the time of the crash. Let's just assume that the father had a life expectancy of 35 years and the mother had life expectancy of 45 years. Under this fact pattern, the measure of damages would be the life expectancy of each parent. This, of course, assumes that the child would have a relatively normal life expectancy as well but for the wrongful death incident. In this case, a car crash ended the life of the child.
There are a myriad of issues that arise in a typical wrongful death case. These include liability, insurance coverage, and damages just to name a few. The Florida Wrongful Death Statute is not based necessarily on common sense, logic, or fairness. The law has been challenged in the past but unsuccessfully. As such, for now, the Florida Wrongful Death Act is the law of the land.
David A. Wolf is an attorney with over 28 years of experience in the field of personal injury including the wrongful death of a child. He is the author of the book titled When a Parent's World Goes From Full to Empty - The Wrongful Death of a Child - What You Need to Know About The Florida Wrongful Death Act.