30-809 Wrongful death; action authorized. - Nebraska Statutes

30-809. Wrongful death; action authorized.(1) Whenever the death of a person, including an unborn child in utero at any stage of gestation, is caused by the wrongful act, neglect, or default of any person, company, or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the person injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, is liable in an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to felony.(2) No action for damages for the death of a person who is an unborn child shall be brought under this section against:(a) The mother of the unborn child;(b) A physician or other licensed health care provider if the death was the intended result of a medical procedure performed by the physician or health care provider and the requisite consent was given; or(c) A person who dispenses or administers a drug or device in accordance with law if the death was the intended result of the dispensation or administration of the drug or device. SourceG.S.1873, c. 15, § 1, p. 272; R.S.1913, § 1428; C.S.1922, § 1382; C.S.1929, § 30-809; R.S.1943, § 30-809; Laws 2003, LB 294, § 1. Annotations1. Elements of recovery2. Joinder of actions3. By whom brought4. Defense5. Amount recovered6. Evidence7. Negligence1. Elements of recoveryThis section is intended to authorize an action to recover damages from a tort-feasor for negligence or some other action resulting in the death of another person. Olsen v. Farm Bureau Ins. Co. of Nebraska, 259 Neb. 329, 609 N.W.2d 664 (2000).The loss contemplated by the wrongful death statute is a pecuniary loss, and damages on account of mental suffering or bereavement or as a solace to the next of kin on account of the death are not recoverable, as neither are damages for mental anguish suffered by the decedent prior to his death. Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989).Measure of damages for wrongful death of minor child includes loss of society, comfort, and companionship. Overrules prior decisions in conflict. Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686 (1973).Medical and funeral expenses resulting from wrongful death may be recovered when beneficiaries have paid or have become legally obligated to pay same. State Farm Mut. Auto. Ins. Co. v. Selders, 187 Neb. 342, 190 N.W.2d 789 (1971); Kroeger v. Safranek, 161 Neb. 182, 72 N.W.2d 831 (1955); Shields v. County of Buffalo, 161 Neb. 34, 71 N.W.2d 701 (1955).This section creates a new cause of action unknown at the common law. Mabe v. Gross, 167 Neb. 593, 94 N.W.2d 12 (1959); Murray v. Omaha Transfer Co., 95 Neb. 175, 145 N.W. 360 (1914), 7 A.L.R. 1343 (1914).Insofar as disbursements provided by this section are inconsistent with Workmen's Compensation Act, the latter act controls. Bronder v. Otis Elevator Co., 121 Neb. 581, 237 N.W. 671 (1931).Pecuniary loss is presumed to exist in favor of party legally entitled to service or support of person killed by wrongful or negligent act of another. Killion v. Dinklage, 121 Neb. 322, 236 N.W. 757 (1931).Personal representative of decedent is not precluded by judgment against carrier under federal Employers' Liability Act for benefit of widow from maintaining later action against joint tort-feasor as provided herein for benefit of another. Moore v. Omaha Warehouse Co., 106 Neb. 116, 182 N.W. 597 (1921).Act creating cause of action for wrongful death is not amendatory of or in conflict with act providing for suits by passengers injured or killed as result of negligence of railroad. Chicago, R. I. & P. Ry. Co. v. Zernecke, 59 Neb. 689, 82 N.W. 26 (1900).Courts will not give this section a narrow or technical construction. Kearney Electric Co. v. Laughlin, 45 Neb. 390, 63 N.W. 941 (1895).Value of services which next of kin could expect deceased to earn, and expectancy of life may be shown. Missouri P. Ry. v. Baier, 37 Neb. 235, 55 N.W. 913 (1893)."Damages" are such sum as will compensate next of kin for pecuniary loss sustained. Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95, 52 N.W. 840 (1892).Under certain circumstances, a breach of the terms of an insurance policy by the insurer can be a tort, and recovery can be had for such tort under the wrongful death statute. Weatherly v. Blue Cross Blue Shield, 2 Neb. App. 669, 513 N.W.2d 347 (1994).A parent cannot recover damages for mental distress and physical injury resulting from witnessing the suffering of his child caused by negligence of physicians and hospital personnel. Owens v. Childrens Memorial Hospital, 480 F.2d 465 (8th Cir. 1973).Deceased's beneficiaries cannot recover for their mental suffering, pain, anguish, and loss of companionship. Owens v. Childrens Memorial Hospital, 347 F.Supp. 663 (D. Neb. 1972).2. Joinder of actionsAction for pain and suffering may be revived and joined with action for wrongful death in same proceeding. Rasmussen v. Benson, 133 Neb. 449, 275 N.W. 674 (1937), affirmed on rehearing, 135 Neb. 232, 280 N.W. 890 (1938).Action for wrongful death and action for pain and suffering sustained by deceased may be pursued in different suits or joined in one suit and separate verdicts returned. Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806 (1922).3. By whom broughtWrongful death statutes create a cause of action unknown at common law, but that cause of action is for the exclusive benefit of the decedent's next of kin. Rhein v. Caterpillar Tractor Co., 210 Neb. 321, 314 N.W.2d 19 (1982).The personal representative of a deceased wife could maintain a wrongful death action against the personal representative of her deceased husband based upon the alleged negligence of the deceased husband. Imig v. March, 203 Neb. 537, 279 N.W.2d 382 (1979).An action for wrongful death of stillborn fetus may not be maintained hereunder. Egbert v. Wenzl, 199 Neb. 573, 260 N.W.2d 480 (1977); Drabbels v. Skelly Oil Co., 155 Neb. 17, 50 N.W.2d 229 (1951).Coadministrators of deceased's estate entitled to file wrongful death claim in the estate of alleged tort-feasor. Gilbert v. Vogler, 197 Neb. 454, 249 N.W.2d 729 (1977).An employer can bring an action directly against a third party tort-feasor for injuries suffered by an employee, but only a personal representative of a deceased employee can bring an action for wrongful death, which action must be filed within two years after death. United Materials, Inc. v. Landreth, 196 Neb. 525, 244 N.W.2d 164 (1976).Where as administrator of wife's estate, widower brought action for wrongful death and was unsuccessful, he was not barred under doctrines of res judicata or issue preclusion from prosecuting action for his own personal injuries and damages suffered in same collision. Hickman v. Southwest Dairy Suppliers, Inc., 194 Neb. 17, 230 N.W.2d 99 (1975).Action to recover damages sustained by surviving spouse and next of kin of decedent is authorized. Wieck v. Blessin, 165 Neb. 282, 85 N.W.2d 628 (1957).Action for wrongful death requires that it be brought by the personal representative of the deceased for the exclusive benefit of the widow or widower and next of kin. Bush v. James, 152 Neb. 189, 40 N.W.2d 667 (1950).Action for damages commenced by administrator after death of his intestate, for pain and suffering inflicted upon the deceased, is maintainable. Wilfong v. Omaha & C. B. St. Ry. Co., 129 Neb. 600, 262 N.W. 537 (1935).Action for employee's death must be brought by personal representative, and provision of Workmen's Compensation Act regarding employer's interest merely relates to distribution of proceeds of sale. Goeres v. Goeres, 124 Neb. 720, 248 N.W. 75 (1933); Luckey v. Union Pacific Ry. Co., 117 Neb. 85, 219 N.W. 802 (1928).Action against county for damages for wrongful death must be brought in the name of the administrator. Swift v. Sarpy County, 102 Neb. 378, 167 N.W. 458 (1918).Parent may recover for loss of expected services of children not only during minority but afterwards. Draper v. Tucker, 69 Neb. 434, 95 N.W. 1026 (1903).A person sued by administrator for wrongful death is not thereby given a sufficient interest to petition county court for removal of administrator. Missouri P. Ry. Co. v. Jay, 53 Neb. 747, 74 N.W. 259 (1898).Conservator domiciled in Colorado who undertook no duties or obligations with respect to beneficiary domiciled in Nebraska, except to file suit for beneficiary's injury in accident in Nebraska, could not sue in federal court on basis of diversity of citizenship. Rogers v. Bates, 431 F.2d 16 (8th Cir. 1970).A wrongful death action must be maintained by the legal representative of the deceased. Russell v. New Amsterdam Casualty Co., 303 F.2d 674 (8th Cir. 1962).Action for wrongful death was properly brought in federal court on the basis of diversity of citizenship even though plaintiff had been appointed administratrix by Nebraska court. Janzen v. Goos, 302 F.2d 421 (8th Cir. 1962).Action under Lord Campbell's Act must be brought within two years after death of deceased. McDonnell v. Wasenmiller, 74 F.2d 320 (8th Cir. 1934).4. DefenseCounty was not liable for wrongful death due to latent defect in bridge. Wittwer v. County of Richardson, 153 Neb. 200, 43 N.W.2d 505 (1950).In action for wrongful death by wife of deceased, settlement made by administrator of estate, with acquiescence of wife, barred recovery. Boell v. Overbaugh, 141 Neb. 264, 3 N.W.2d 439 (1942).In action for wrongful death, negligence of taxicab driver in which deceased was riding was no defense. Koehn v. City of Hastings, 114 Neb. 106, 206 N.W. 19 (1925).Streetcar company was not liable for wrongful death of person injured in collision who committed suicide knowing purpose and effect of his act. Long v. Omaha & C. B. St. Ry. Co., 108 Neb. 342, 187 N.W. 930 (1922).Charitable institutions are not liable for negligence or neglect of nurses, even though compensated. Duncan v. Nebraska Sanitarium & Benevolent Assn., 92 Neb. 162, 137 N.W. 1120 (1912).Receipt of benefits by widow under contract of membership in relief department of railroad would not bar action by her as administratrix for wrongful death. Chicago, B. & Q. Ry. Co. v. Healy, 76 Neb. 783, 107 N.W. 1005 (1906), affirmed on rehearing 76 Neb. 786, 111 N.W. 598 (1907), overruling Walters v. Chicago, B. & Q. Ry. Co., 74 Neb. 551, 104 N.W. 1066 (1905).Electric companies owe a duty toward the public, individuals and employees in regard to its charged wires. New Omaha Thomson-Houston Electric Light Co. v. Rombold, 68 Neb. 54, 93 N.W. 966 (1903), reversed on rehearing New Omaha Thomson-Houston Electric Light Co. v. Rombold, 68 Neb. 71, 97 N.W. 1030 (1904); New Omaha Thomson-Houston Electric Light Co. v. Johnson, 67 Neb. 393, 93 N.W. 778 (1903).Railway company is not liable for injuries caused by a team taking fright at the ordinary operation of trains. Hendricks v. Fremont, E. & M. V. R. R. Co., 67 Neb. 120, 93 N.W. 141 (1903).Whatever would have been a defense had the deceased survived and brought suit is a defense in an action brought by the administrator of his estate. Seyfer v. Otoe County, 66 Neb. 566, 92 N.W. 756 (1902).Where railroad company had paid judgment for damages for wrongful death, beneficiary under contract with relief department of railroad could not recover on certificate. Oyster v. Burlington Relief Dept. of Chicago, B. & Q. R. R. Co., 65 Neb. 789, 91 N.W. 699 (1902).Rules of company are not binding unless employee had actual notice. Chicago, B. & Q. R. R. Co. v. Oyster, 58 Neb. 1, 78 N.W. 359 (1899).In action for wrongful death arising from use of defective material in building, owner was not liable where proximate cause of injury was a fire which caused wall to fall. Downs v. Kitchen, 53 Neb. 423, 73 N.W. 945 (1898); Kitchen v. Carter, 47 Neb. 776, 66 N.W. 855 (1896).City is not liable for death in pond on private property, not in proximity to streets or alleys. City of Omaha v. Bowman, 52 Neb. 293, 72 N.W. 316 (1897).Owner of building was not liable for death by falling walls caused by severe storm. Olsen v. Meyer, 46 Neb. 240, 64 N.W. 954 (1895).Owner of vacant lot allowing pond of water to accumulate, is not liable for death of person drowned. Richards v. Connell, 45 Neb. 467, 63 N.W. 915 (1895).A servant assumes risk by continued use of defective machinery; it is the duty of master to furnish appliances that are reasonably safe and fit for performance of work. Missouri P. Ry. Co. v. Baxter, 42 Neb. 793, 60 N.W. 1044 (1894).It is no defense that decedent was killed while working for defendant on Sunday. Johnson v. Missouri P. Ry. Co., 18 Neb. 690, 26 N.W. 347 (1886).5. Amount recoveredVerdict in action for wrongful death was not excessive. Langford v. Ritz Taxicab Co., 172 Neb. 153, 109 N.W.2d 120 (1961).Evidence was sufficient to sustain judgment for five thousand five hundred dollars on account of wrongful death arising out of automobile collision. Moslander v. Carroll, 140 Neb. 358, 299 N.W. 479 (1941).Verdict in favor of plaintiff for twenty thousand dollars was excessive. Hoffman v. Chicago & N. W. Ry. Co., 91 Neb. 783, 137 N.W. 878 (1912).In ascertaining the amount of damages, evidence of circumstances of the decedent, age and condition of the family is considered. Crabtree v. Missouri P. Ry. Co., 86 Neb. 33, 124 N.W. 932 (1910).Table of expectancy is not true measure of life where deceased had, prior to injury sued on, received serious injuries. Davis v. Borland, 83 Neb. 281, 119 N.W. 454 (1909).6. EvidencePresumption obtains that person killed was in the exercise of due care. Bailey v. Spindler, 161 Neb. 563, 74 N.W.2d 344 (1956).In action brought under this section, admission of evidence that school teachers were needed and what salary scale of teachers was constituted error. Piechota v. Rapp, 148 Neb. 442, 27 N.W.2d 682 (1947).In action for wrongful death, admission of defendant's testimony on coroner's inquest was not error. Smoke v. Carter, 105 Neb. 520, 181 N.W. 526 (1921).Contributory negligence and presumption discussed. Armstrong v. Union Stock Yards Co., 93 Neb. 258, 140 N.W. 158 (1913).Contributory negligence is not proximate cause of injury if defendant could by reasonable care, have avoided injury after seeing position of deceased. Zelenka v. Union Stock Yards Co., 82 Neb. 511, 118 N.W. 103 (1908).Presumption is that one killed or injured was exercising ordinary care; burden of establishing assumption of risk is on master. Grimm v. Omaha Electric Light & Power Co., 79 Neb. 395, 114 N.W. 769 (1908).In action for wrongful death of employee, declarations of engineer made at time of accident were admissible in evidence. Union P. R. R. Co. v. Edmondson, 77 Neb. 682, 110 N.W. 650 (1906).Presumption that next of kin were alive at date of verdict is raised by their deposition given five years prior thereto. Chicago, R. I. & P. Ry. Co. v. Young, 67 Neb. 568, 93 N.W. 922 (1903).Evidence was insufficient to show negligence. Nelson v. Swift & Co., 55 Neb. 598, 75 N.W. 1107 (1898); Union P. Ry. Co. v. Clark, 51 Neb. 220, 70 N.W. 923 (1897).Claim for damages is not an asset of the estate; "Carlisle Tables" of expectancy are admissible. City of Friend v. Burleigh, 53 Neb. 674, 74 N.W. 50 (1898)."Carlisle Tables" of expectancy are admissible in evidence. Value of estate of decedent cannot be shown. Chicago, R. I. & P. Ry. Co. v. Hambel, 2 Neb. Unof. 607, 89 N.W. 643 (1902).Witnesses who were acquainted with deceased, and knew his earning capacity, for years prior, may testify thereto. Chicago, R. I. & P. Ry. Co. v. Sizer, 1 Neb. Unof. 32, 95 N.W. 498 (1901).In action for wrongful death, negligence could be proved by circumstantial evidence. National Alfalfa Dehydrating & Mill. Co. v. Sorensen, 220 F.2d 858 (8th Cir. 1955).7. NegligencePlaintiff must show that death was caused by some negligent act attributable to the defendant. Britton v. Samuelson, 147 Neb. 318, 23 N.W.2d 267 (1946).It is the duty of the master to warn servant of hazards of employment. Central Granaries Co. v. Ault, 75 Neb. 249, 106 N.W. 418 (1905), modified on rehearing, 75 Neb. 249, 107 N.W. 1015 (1905); Dehning v. Detroit Bridge & Iron Works, 46 Neb. 556, 65 N.W. 186 (1895).One, by negligently exposing himself to known danger, does not assume responsibility for unknown and undiscovered dangers. Holmes v. Chicago, R. I. & P. Ry. Co., 73 Neb. 489, 103 N.W. 77 (1905).Where different conclusions may be drawn from conduct on which negligence is predicated, such question is for jury, not for court. McLean v. Omaha & C. B. Ry. & B. Co., 72 Neb. 447, 100 N.W. 935 (1904), affirmed on rehearing 72 Neb. 450, 103 N.W. 285 (1905).Master in bridling a horse and allowing servant to control it with halter, resulting in death, was not negligent. Fifer v. Burch, 68 Neb. 217, 94 N.W. 107 (1903).In this class of cases presumption is that deceased was injured by carrier's negligence. Chicago, R. I. & P. Ry. Co. v. Young, 58 Neb. 678, 79 N.W. 556 (1899).Assumption of risk, and contributory negligence, was discussed. Dailey v. Burlington & M. R. R. R. Co., 58 Neb. 396, 78 N.W. 722 (1899).Liability of railway for injuries to stockmen traveling on passes is that of a common carrier for hire. Missouri P. Ry. Co. v. Tietken, 49 Neb. 130, 68 N.W. 336 (1896).Street railway companies must exercise the highest degree of care in regard to safety of passengers in operating their cars. Omaha & C. B. Ry. & B. Co. v. Levinston, 49 Neb. 17, 67 N.W. 887 (1896).Plaintiff must show and prove that negligence complained of was the proximate cause of death. Brotherton v. Manhattan Beach Imp. Co., 48 Neb. 563, 67 N.W. 479 (1896), affirmed on rehearing 50 Neb. 214, 69 N.W. 757 (1897).In action for wrongful death to passenger on railroad, there is a presumption of negligence. Chicago, B. & Q. R. R. Co. v. Hague, 48 Neb. 97, 66 N.W. 1000 (1896).If plaintiff proves his case without disclosing negligence of intestate, burden of proof is on defendant to show contributory negligence. Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95, 52 N.W. 840 (1892).Where common sense would have been sufficient to have warned plaintiff of danger, question of whether he was negligent is for the court. Chicago, B. & Q. R. R. Co. v. Lilley, 4 Neb. Unof. 286, 93 N.W. 1012 (1903).