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11 Pac. L. J. 775 (1979-1980)
Wrongful Death Recoveries in California: Is the Decedent's Negligence a Defense after Li

handle is hein.journals/mcglr11 and id is 809 raw text is: Wrongful Death Recoveries in California: Is the Decedent's Negligence a Defense after Li? Section 377 of the California Code of Civil Procedure creates a cause of action for wrongful death, which belongs to the heirs of the dece- dent.' This cause of action is based upon the heirs' independent pecu- niary injury, and is distinct from any cause of action the decedent might maintain by reason of the tortious death.2 Accordingly, in all instances save one the California courts have kept the injury to the plaintiff/heirs in a wrongful death action distinct from the injury to the decedent.3 This separation has resulted in limits on the plaintiffis re- covery and the defendant's defenses. For example, the heirs cannot recover damages for the pain and suffering of the decedent in their wrongful death action,4 and a release executed by the decedent for the injuries sustained by him does not bar the heirs' action.' A theoretical anomaly arises, however, in California's treatment of this new cause of action: the decedent's negligence is a defense to an heirs' wrongful death action under Section 377.6 This singular excep- tion to an otherwise consistent treatment of the heirs' action was an- nounced by a divided California Supreme Court in Buckley v. Chadwick,7 which held that the contributory negligence of the decedent bars an action by the heirs for wrongful death.' This rule enunciated 1. See Buckley v. Chadwick, 45 Cal. 2d 183, 197, 288 P.2d 12, 20 (1955) rehearing granted, 289 P.2d 242 (1955). Three classes of persons are included within the definition of heirs used within the wrongful death statute: (1) persons who would have inherited the decedent's estate had he or she died intestate; (2) if dependent upon the decedent, the putative spouse, children of the putative spouse, stepchildren, and parents of the decedent; and (3) minors who resided in the decedent's household at the time of, and 180 days previous to, his or her death and who were dependent upon the decedent for at least half of their support. 4 B. WITKIN, SUMMARY OF CALI- FORNIA LAW, Torts §789B (Supp. 1978). 2. See Earley v. Pacific Elec. Ry. Co., 176 Cal. 79, 81, 167 P. 513, 514 (1917); 4 B. WITKIN, SUMMARY OF CALIFORNIA LAW, Torts §785 (8th ed. 1973). 3. Compare Blackwell v. American Film Co., 189 Cal. 689, 696-97, 209 P. 999, 1002 (1922) and Earley v. Pacific Elec. Ry. Co., 176 Cal. 79, 81, 167 P. 513, 513 (1917) and Hall v. Paul Bunyan Lumber Co., 177 Cal. App. 2d 761,765, 2 Cal. Rptr. 519, 522-23 (1960) with 45 Cal. 2d at 201, 288 P.2d at 22. 4. Bond v. United R.Rs., 159 Cal. 270, 277, 113 P. 366, 369 (1911). 5. 176 Cal. at 81, 167 P. at 513. 6. See Willis v. Gordon, 20 Cal. 3d 629, 636, 574 P.2d 794, 798, 143 Cal. Rptr. 723, 727 (1978) (Mosk, J., concurring). 7. 45 Cal. 2d 183, 288 P.2d 12, 289 P.2d 242 (1955). 8. Id at 201, 288 P.2d at 22. Since California's adoption of comparative negligence in Li,

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