Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Wrongful Death Miscellaneous.

Wrongful Death Miscellaneous-Statutes

Va. Code § 8.01-50.
Va. Code § 8.01-51 indicating that no action may be maintained where decedent compromised claim prior to death.
Va. Code § 8.01-55 as to compromises of wrongful death claims.
Va. Code § 8.01-229 amending non-suit statute so as to be applicable to wrongful death actions.
Va. Code § 8.01-50B allowing recovery for fetal death.

Wrongful Death Miscellaneous-Cases

2008 Perreault v. The Free Lance-Star, 276 Va. 375, 666 S.E.2d 352.
Wrongful death actions that are settled must be presented to the Court with a petition that includes the complete and unredacted terms of the settlement.

2006 Castle v. Lester, 272 Va. 591, 636 S.E.2d 342.
In this medical malpractice action, the trial court did not err in instructing the jury that injury to the unborn child is physical injury to the mother and in admitting evidence of the mother’s claim for damages for mental suffering due to the birth of her impaired son including the nature of the child’s injury, his daily care needs and life expectancy as well as mother’s depression and loss of income.

2005 Auer v. Miller, 270 Va. 172, 613 S.E.2d 421.
In this medical malpractice wrongful death action, plaintiff’s experts were not able to say that the physician’s negligence destroyed any substantial possibility of the patient’s survival. That is the standard for proximate cause in a wrongful death action.

2000 Rice v. Charles, 260 Va. 157, 532 S.E.2d 318.
In this wrongful death action, defendant admitted negligence but relied upon defense of contributory negligence as to decedent who was passenger in vehicle. The uncorroborated evidence of defendant in support of contributory negligence defense was insufficient to support this defense under Dead Man’s Act and therefore, defense was stricken.

1991 Kelly v. R.S. Jones & Assocs., 242 Va. 79, 406 S.E.2d 34.

Plaintiff accepted consideration paid in this wrongful death claim. Although Virginia law requires that wrongful death cases be court approved, that requirement did not apply in this instance since death occurred out of state.

1990 Kalafut v. Gruver, 239 Va. 278, 389 S.E.2d 681.
Tortfeasor who causes harm to unborn child is subject to liability to child or to child’s estate for harm to child if child is born alive. Lawrence and Modaber are reaffirmed.

1986 Modaber v. Kelley, 232 Va. 60, 348 S.E.2d 233.
Medical malpractice case. Mother suffered compensable injury due to injury to fetus and its eventual stillbirth. An unborn child is not a person under the Wrongful Death Act, but rather is part of mother until birth. Mother may recover for such physical injury and mental suffering associated with stillbirth. She is not entitled to damages normally associated with wrongful death claims. Verdict for $750,000 upheld.

1986 Horn v. Abernathy, 231 Va. 228, 343 S.E.2d 318.
Wrongful death action is right of action to enforce cause of action, both created by statute in derogation of common law. Wrongful death actions are not within purview of Va. Code § 8.01-229B.

1975 Korman v. Carpenter, 216 Va. 86, 216 S.E.2d 195.
Administrator of decedent wife allowed to bring wrongful death action against husband who murdered wife. Interspousal immunity rule abrogated for wrongful death action.

1960 Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440.
No action lies for wrongful death of stillborn child. Unborn child cannot maintain action for personal injury. Unborn child has no juridical existence in law of torts.

1966 Bailey v. Hunter, Inc., 207 Va. 123, 148 S.E.2d 826.
In wrongful death action, plaintiff must prove in absence of direct evidence, such facts as would justify inference that death was caused by wrongful act of defendant and to exclude idea that it was due to cause with which defendant was not connected.

1957 Johns v. Blue Ridge Transfer Co., 199 Va. 63, 97 S.E.2d 723.
Plaintiff’s decedent and parents killed in auto crash. All class beneficiaries were dead. This does not prevent filing of suit for benefit of estate.

For more information on wrongful death see the pages on Wikipedia.