Wrongful Death Law In Oregon
The Wrongful Death Act in Oregon dates back to 1862 when the first statute was passed regarding one’s death that was caused by the negligent acts of another. Before that time, there was essentially no common-law cause of action for wrongful death. But in 1862, the Oregon legislature provided recovery for the benefit of the estate. This was written by the Oregon Supreme Court in 1982 as the “loss of estate” rule:
“The proper measure of damages, under our statute, is the pecuniary loss suffered by the estate, without any solatium for the grief and anguish of surviving relatives or pain and suffering of the deceased; and that loss is what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his life, and which, as representing his net savings, would have gone for the benefit of the estate.”
In 1939, the Wrongful Death Act was broadened by the Oregon legislature to allow a surviving spouse or dependents to collect the pecuniary value of the benefits that the beneficiary might have expected to get from the continued life of the decedent. This was held to include damages such as the loss of a mother’s care for her child and the loss of a wife’s or husband’s household abilities. See Prauss v. Adamski, 195 Or 1, 24, 244 P2d 598 (1952).
In 1967, the Wrongful Death Act was again amended to allow damages to be awarded in an amount calculated to reasonably compensate the spouse, dependents, or estate for the actual pecuniary loss, if any, to the spouse, dependents or estate caused by the decedent’s death.
The Wrongful Death was yet again reexamined and amended in 1973 to its current form, ORS 30.020. Among other changes, this allowed seven types of damages, 1) medical and funeral expenses, 2) disability, pain and suffering of the decedent before death, 3) loss of income to the decedent before death, 4) pecuniary loss to the decedent’s estate, 5) pecuniary loss to surviving beneficiaries, 6) loss of society, and 7) punitive damages (if appropriate).
A wrongful death action must be brought not later than the earlier of: a) 3 years after death, or b) the expiration of the longest of any applicable statute of repose. ORS 30.020(1).
These periods of time begin to run when the injury causing death is discovered, or reasonably should have been discovered, by the decedent, the personal representative or the person for whose benefit the action may be brought. ORS 30.020(1).
However, under the Oregon Tort Claims Act, a plaintiff must submit a tort claim notice within one year if they wish to bring a wrongful death action against a public body. This one year begins to run either upon death, or when the plaintiff knew or reasonably should have known that someone’s negligence caused the death.
The three-year statute of limitations applies to deaths caused by medical malpractice, rather than the two-year statute of limitations for non-death medical malpractice claims set forth in ORS 12.110(4).
MONETARY DAMAGES ALLOWED
There are now five categories of damages that a personal representative may seek and be awarded under ORS 30.020:
- Expenses incurred for services rendered to the decedent, including charges for doctor, hospital, nursing or medical services, and burial and memorial services;
- Compensation for the decedent for disability, pain, suffering and loss of income between the time of injury and death;
- Compensatory damages for pecuniary loss to the decedent’s estate;
- Just, fair and reasonable compensation for the decedent’s spouse, children, stepchildren, parents and stepparents for “pecuniary loss and for loss of society, companionship, and services of the decedent,”
- Punitive damages that the decedent would have been entitled to recover if he or she had lived.
ORS 31.710 limits the amount of non-economic damages to $500,000 in wrongful death cases. In other words, any damages for non-economic things such as loss of care, comfort, companionship and society, pain, mental suffering or loss of consortium, are limited to $500,000.
This does not “cap” the amount of economic damages that are recoverable. Economic damages are verifiable monetary losses such as medical expenses, burial and memorial expenses, and loss of income.
The “cap” also does not apply to punitive damages, if punitive damages are found to be appropriate.
Under ORS 31.710, a jury is not allowed to know about this cap on damages, so even if a jury awards a personal representative of a decedent over $500,000, the Judge will reduce the award to this amount.