Utah is just one of four states with constitutions that specifically preclude any limitation on recovery in wrongful death suits. The Utah State Constitution expressly states that “[t]he right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation . . . ." Utah const. art. XVI, § 5 (1896) (emphasis added). Utah’s constitutional proscription on limiting recovery for wrongful death is sound public policy. As one scholar has explained:
Under the pecuniary loss rule, followed in almost every state, life has no intrinsic value—no value per se. This seems to be a peculiar result in a society that refuses, at least for some purposes, to place any price tag on human life. Of course, an obvious distinction can be drawn between the cost of saving a life not yet lost and allowing tort recovery for one that is gone. Since no amount of money can bring the decedent back, she cannot be compensated in any meaningful way for the loss of her life. However, while this may justify a difference in the monetary values society attaches to lives that can be saved and those already lost, it does not support the traditional legal notion that a lost life has no cognizable value apart from the lost economic benefits the decedent would have conferred upon her survivor.
Andrew Jay McClurg, It’s a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 Notre Dame L. Rev. 57, 59 (1990).
Fortunately, under Utah law, there is not—and there cannot be—any limit on the amount recoverable in wrongful death cases.
Families’ rights to seek judicial redress for the death of a loved one due to medical malpractice or other negligence are constitutionally protected. The nature of the right to seek judicial redress for wrongful death, and its constitutional significance, can be understood by examining history:
According to a Latin maxim, personal actions die with the person. The common law followed that maxim, holding that the death of either the tortfeasor or the victim eliminated all tort claims. In particular . . . [i]f the tort victim died, his cause of action was at an end. His estate had no cause of action.
Dan B. Dobbs, The Law of Torts, § 294 (2000). In 1846, however, England enacted Lord Campbell’s Act, which “created a wrongful death claim for the relatives of a decedent when the decedent would have had a claim if he or she had been merely injured and not killed."
Utah’s Constitutional Wrongful Death Clause was "based on the enactment of Lord Campbell’s Act in 1846 in England to remedy a defect in the common law. The Act spread to this country, was enacted essentially in its present form in the Territory of Utah, and was then included in the Utah Constitution at statehood . . . . The plain meaning of the constitutional provision . . . is to prevent the abolition of the right of action for a wrongful death, whether in a wholesale or piecemeal fashion." Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 684 (Utah 1985) (internal quotations and citations omitted).
Accordingly, the state legislature has consistently maintained a statutory mechanism by which Utah citizens might avail themselves of the right. See Behrens v. Raleigh Hills Hospital, Inc., 675 P.2d 1179, 1184 (Utah 1983); Utah Code Ann. § 78-11-7. Discussing this act, the Utah Supreme Court stated:
Under 78-11-7, when the death of an adult is caused by the wrongful or negligent act of another, the heirs or the personal representative of the heirs may bring an action for damages against the person causing the death. This Court . . . interpreted the statute and held it to create “a new cause of action for the loss suffered by the heirs by reason of death and (the action) only comes into existence upon the happening of death." The action is not derivative.
Hull v. Silver, 577 P.2d at 103-04 (quoting VanWagoner v. Union Pac. R. Co., 186 P.2d 293, 303 (Utah 1947)) (emphasis added).
Hull also highlights a critical point that is useful in understanding Utah’s wrongful death jurisprudence. In holding that the doctrine did not apply, the court relied heavily on the Washington Supreme Court’s decision in Johnson v. Ottomeier, 275 P.2d 723 (Wash. 1954). Quoting Johnson, the Utah Supreme Court adopted the reasoning that, “[n]ot having as its basis a survival statute, the action for wrongful death is derivative only in the sense that it derives from the wrongful act causing the death, rather than from the person of the deceased." Hull, 577 P.2d at 106 (quoting Johnson, 275 P.2d at 725).
Those of us that live in Utah ought to be grateful to our State's founding fathers, who had the wisdom and foresight to include this important provision in our State Constitution.
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