Dallas Wrongful Death Attorney

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DEATH CASE, CALL NOW FOR MORE
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WRONGFUL DEATH ISSUES

Effect of REMARRIAGE

Most courts indicate that the possibility of
remarriage has no effect on the award of
pecuniary damages to a widow, and the fact
that remarriage could occur should not be
introduced. See Riley v. California Erectors,
Inc., #111 Cal. Rptr. 459 (Ct. App. 1973); Pape v.
Kansas Power & Light Co., #647 P.2d 320 (Kan.
1982). These courts say that the damages are
determined as of the date of death of the
spouse, and not upon later speculation.
Elmahdi v. Ethridge, #987 S.W.2d 366 (Mo. Ct.
App. 1999).

WRONGFUL DEATH DAMAGES FOR DEATH
OF A VIABLE FETUS? (Possibly)

Cases saying no are: Kuhnke v. Fisher, #683
P.2d 916 (Mont. 1984); State v. Soto, #378
N.W.2d 625 (Minn. 1985). One court has held
that the state's wrongful death statute
encompassed the parents' claim for the loss of
a nonviable fetus who was born alive. Nealis v.
Baird, #996 P.2d 438 (Okla. 1999).

Cases which allow are: Werling v. Sandy, #476
N.E.2d 1053 (Ohio 1985); Griffiths v. Doctors
Hosp., #780 N.E.2d 603 (Ohio Ct. App. 2002);
Greater Southeast Cmty. Hosp. v. Williams,
#482 A.2d 394 (D.C. 1984); Hopkins v. McBane,
#359 N.W.2d 862 (N.D. 1984); Amadio v. Levin,
#501 A.2d 1085 (Pa. 1985); Eich v. Gulf Shores,
#300 So. 2d 354 (Ala. 1985); Commonwealth v.
Cass, #467 N.E.2d 1324 (Mass. 1984);
Panagopoulos v. Martin, #295 F. Supp. 220
(S.D. W. Va. 1969).

Werling v. Sandy, #476 N.E.2d 1053 (Ohio
1985), the child died during the birth process
and the court felt that the requirements of birth
(to change from fetus to child) was an artificial
demarcation and said that it would seem then
that the greater harm done by the tortfeasor,
the more likely he or she would avoid liability.

So far, Texas has said no, but the trend
nationwide seems to be to allow it. Pietila v.
Crites, #851 S.W.2d 185 (Tex. 1993); Gross v.
Davies, #882 S.W.2d 452 (Tex. App.-Houston
[1st Dist.] 1994, no writ); Univ. of Tex.
Southwestern Med. Ctr. v. Loutzenhiser, #140
S.W.3d 351 (Tex. 2004).

The trend is also to permit mental-anguish
recovery for the loss of a fetus. See, e.g.,
Hilsman v. Winn Dixie Stores, Inc., #639 So. 2d
115 (Fla. Dist. Ct. App. 1994); Seef v. Sutkus,
#562 N.E.2d 606 (Ill. App. Ct. 1990); Johnson v.
Ruark Obstetrics & Gynecology Assocs., P.A.,
#395 S.E.2d 85 (N.C. 1990); Rupp v. Brown, #31
S.W.3d 803 (Tex. App.-Austin 2000, pet. denied).