WHO CAN FILE A WRONGFUL DEATH CLAIM IN LOUISIANA?
For a long time, no one could file an action for the wrongful death of a loved one. This may be hard to believe, but wrongful death claims only recently came to be recognized in the modern world. That’s right. For most of our history, it was far cheaper to kill someone as opposed to injuring them. No one had a cause of action for the death of a loved one. Until 1960, Louisiana did not recognize a cause of action for someone who had lost a loved one in an accident.
Even after the adoption of the wrongful death statute, the Louisiana courts would not grant a cause of action to illegitimate children who lost their mother in an accident. The courts refused to recognize illegitimate children as “children” under the statute. Fortunately, the U.S. Supreme Court reversed this holding.
Unfortunately, this law and the jurisprudence interpreting the statute only allowed for the recovery of the deceased’s damages for the deceased’s death. This is what we call “survival damages.” These are damages that the deceased incurred/suffered up until the time of deceased’s ultimate death, such as medical expenses and conscious pain and suffering.
A separate cause of action for the grief and suffering of the loved ones for their loss was not fully recognized until 1980, in the case of Guidry v. Theriot. Following that decision, the Louisiana legislature passed both a “wrongful death” law in Civil Code Article 2315.2, and a “survival action” in Civil Code Article 2315.1.
So, there are two causes of action available to the relatives of someone who died in an accident: survival, for the injuries suffered by the deceased; and wrongful death, for the suffering of the loved ones. Only relatives have a cause of action – friends do not. However, not every relative has a cause of action.
With regard to both wrongful death and survival actions, the loved one must be within a certain classification and if there is anyone in that classification, all other relatives are excluded. The classifications for both statutes are the same: 1) spouses and children; 2) parents; 3) siblings; and 4) grandparents. So, if the deceased left no spouse or children, then the parents of the deceased can recover, and so on. There is no cause of action for grandchildren, uncles and aunts, or cousins.
What about two people who have lived in cohabitation for many years? No, they are not part of the classification of people who can recover. Spouses must be married. What guardians or people who have custody of children? The courts have concluded that those people are not parents.
Those struggling with a case should contact Hallack Law Office today.