West Virginia Record

Tuesday, February 18, 2020

Wrongful death rules have changed over time

By Steve Korris | Dec 8, 2006

HUNTINGTON – State law that limited recovery for families of those who died in the Marshall University plane crash of 1970 sounds harsh today, but at one time no court in England or America awarded any damages for wrongful death.

An English judge in 1808 declared that, "in a civil court, the death of a human being could not be complained of as an injury."

The decision stood for 38 years as "king's law," which at the time carried as much authority in America as in England.

Scholars regard it as one of the worst decisions ever. One critic said a man would have done better killing his neighbor than scratching him.

In 1846 Lord High Chancellor John Baron Campbell proposed to Parliament "an act for compensating the families of persons killed by accidents."

It provided a cause of action upon death over any wrongful act that would have created a cause of action if death had not ensued.

Parliament passed "Lord Campbell's Act." American states enacted similar laws, starting with New York in 1847.

Virginia legislators considered a wrongful death act in 1849, but it did not pass.

In 1863, shortly after West Virginia separated from Virginia, West Virginia legislators passed a wrongful death act.

It limited damages to "pecuniary injury," meaning the loss of benefits that a decedent provided to a family.

Legislators in 1868 expanded damages one way and restricted them another way.

They dropped pecuniary injury so jurors could award any damages they found fair and just – but they capped damages at $5,000.

Legislators in 1882 raised the cap to $10,000.

Legislators in 1955 preserved the cap but allowed a separate award for pecuniary loss, as long as the awards together did not exceed $20,000.

Legislators in 1961 raised the overall limit to $25,000.

Legislators in 1965 lifted the cap on pecuniary loss to $100,000. That cap applied when an airplane carrying the Marshall University football team crashed, killing 75.

Though the cap worked against widows and orphans in Huntington, their fate did not stir the Legislature to remove it.

A 1975 decision of the West Virginia Supreme Court of Appeals doomed the cap.

The Court ruled that parents could recover no more than $10,000 each for two teenage daughters who drowned at a marina. The parents claimed no pecuniary loss.

The Court stated that, "Meagererness of verdict in wrongful death action is not sufficient reason to set it aside."

Legislators in 1976 removed the cap, allowing such damages as seem fair and just.

West Virginia jurors can award damages for sorrow and mental anguish, for lost income, for care and treatment incident to an injury causing death, and for a reasonable funeral.

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West Virginia Supreme Court of Appeals