Written by attorney Louis J De Voto

The New Jersey Wrongful Death Act


A. N.J.S.A. 2A:31-1 (Survival Act)

When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.

Where person who has been injured by tortious act of another which later causes his death recovers from tort-feasor prior to his death, his beneficiaries under Act have separate and independent right of action Alfone v. Sarno, 168 N.J. Super. 315 (App. Div. 1979) modified on other grounds 87 N.J. 99.

When survival and wrongful death actions lie arising out of the same tortious conduct they should be joined in the same action. Alfone, supra. Lawlor v. Cloverleaf Memorial Park, Inc., 10 N.J. Super. 134 (Law Div. 1968), reversed on other grounds 106 N.J. Super. 374, reversed on other grounds 56 N.J. 326.

B. N.J.S.A. 2A:31-4 (Wrongful Death Act)

This action is brought on behalf of the surviving heirs of the deceased person. The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent and in the proportions in which they are entitled to take the same. If any of the persons so entitled were dependent on the decedent at his death, they shall take the same as though they were the sole persons so entitled, in such proportions, as shall be determined by the court without a jury, and as will result in a fair and equitable apportionment of the amount recovered, among them, taking into account in such determination, but not limited necessarily thereby, the age of the dependents, their physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition and the availability to them of other means of support, present and future, and any other relevant factors which will contribute to a fair and equitable apportionment of the amount recovered.

The wrongful death award is distributed based on dependency to the decedent as follows:

A) Wrongful death recovery is not part of the estate and is distributed without regard to decedent last will and statement. Schmoll v. Creely, 54 N.J. 194 (1969).

B) Proportions of recoevery are determined by the court when minors involved the court will appoint guardian ad litem.

McCombs v. N.J. State Police, 242 N.J. Super. 261 (Law Div. 1990) Although the award may be apportioned among several parties, it never loses its characterization as a single award. McCullen v. Maryland Casualty Co., 127 N.J. Super. 231 (App. Div. 1974), aff'd 67 N.J. 416 (1975).

C) Mere relation is not enough. There must be actual dependency. Jurman v. Brean, 47 N.J. 586 (1966). However, there may be actual financially dependent parties who do not qualify to take. In Eyoma v. Falco, 247 N.J. Super. 435 (1991), a decedent was survived by his mother and his two children. Although the Court heard testimony from the mother concerning her actual dependency on the decedent, the court did not award damages to her. A parent will take only where there is no issue or spouse. Hence, the mother in Eyoma was not entitled to an award. See also Goodman v. Newark Beth Israel, 251 N.J. Super. 533.

D) Right of spouse to partake of benefits of Wrongful Death Act is not conditioned on dependency. Cassano v. Durham, 180 N.J. Super. 620, 436 A.2d 118 (Law Div. 1981).

Person who had maintained "live in" relationship with decedent without benefit of marital ceremony, was not a "surviving spouse" within meaning of Sec. 3A:2A-34 (repealed; see, now Sec. 3B:5-3) and thus, she could not recover under Wrongful Death Act which stated that amounts to be recovered under such Act were to be for exclusive benefits of person entitled to take any intestate personal property. Cassano v. Durham, 180 N.J. Super. 620, 436 A.2d 118 (Law Div. 1981).

Widow of deceased who died without any children was entitled under the statute of distribution to entire recovery for his death. Cibulla v. Pennsylvania Reading Seashore Lines, 25 N.J. Misc. 98, 50 A.2d 461 (1947).

E. Assessment of damages by jury under the Wrongful Death Act is for pecuniary damages only. Purpose of the award is the replacement of services that the decedent would have rendered and nothing more. Hodgins v. Serrano, 186 N.J. Super. 465 (App. Div. 1982). You cannot get emotional losses arising from the death of another unless you witnessed the negligent death occur.

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