Oregon Wrongful Death Lawsuits and the Rights of Surviving Spouses
It’s hard to imagine anything more painful than the death of a spouse due to the wrongful (and avoidable) conduct of another person. Surviving spouses deal with a flood of emotions and a palpable sense of grief. While Oregon law provides meaningful and appropriate mechanisms to hold wrongdoers responsible for their acts, surviving spouses may feel overwhelmed by a combination of their loss, along with the complicated legal questions they face. In this article, we will address some basics concerning the rights of a surviving spouse.
A common question is whether a surviving spouse can pursue or continue a deceased spouse’s lawsuit. The answer is “yes,” but the circumstances can be different, depending on the timing and cause of the victim’s death.
Death During a Pending Lawsuit, But Unrelated To The Lawsuit
Sometimes a spouse may be involved in a lawsuit, but may pass away by natural or other causes totally unrelated to the lawsuit. For example, a husband may file a personal injury lawsuit for a broken arm he received in an automobile accident. If the husband dies during the pendency of the lawsuit due, for example, to old age or of a heart attack that’s totally unrelated to the car accident, wrongful death would not be involved. But people often ask, is there a still a way to hold the wrongdoer responsible for the automobile accident he caused, even though the injured party has died?
Oregon law recognizes that it would be unfair to allow a negligent party to avoid responsibility due to the fortuitous death of the injured party. Oregon Rule of Civil Procedure 34 provides that in many cases, a lawsuit shall not abate due to the death or disability of a party. However, for the case to continue, an appropriate motion needs to be filed with the court within the time allowed by law. The case is then pursued by the deceased plaintiff’s “personal representative.” This is a probate law term, meaning the person appointed in probate court to represent the deceased party’s estate. The personal representative is often the surviving spouse, in our example the wife, but does not have to be.
This rule also applies if the defendant (the responsible party who is being sued) dies during the pendency of the case. Upon the proper motion, a plaintiff can continue the lawsuit against the estate of the deceased.
Death During a Pending Lawsuit, Which Is Related To The Lawsuit
In our example above, the plaintiff’s death was unrelated to the underlying personal injury action. But what happens if there is a causal relationship? For example, consider a wife who is badly injured due to medical malpractice in a surgery. She initially survives the surgery, but has many medical problems and eventually sues the negligent doctor. Unfortunately, she passes away during the litigation because of complications resulting from the negligent surgery. Because the death was caused by the negligence for which the wife was suing in the underlying case, a wrongful death action is now implicated, and all of Oregon’s laws for wrongful death actions will apply. In a previous blog article, we discussed the definition of wrongful death, along with the plaintiff’s recovery rights in a wrongful death action.
While the surviving spouse maintains important rights in both a wrongful death case and a survival action, the laws for apportioning damages are different. Please call us for a free consultation if you have questions about these differences.
Injury or Death of a Minor Child
We are also sometimes asked who has the right to pursue an action for injuries to or death of a minor child. If a child is injured by the wrongful acts of another, but is still living, the child’s custodial parent may maintain an action. However, in the horrible circumstance of the death of a child, wrongful death rules apply and the action must be brought by the appropriate personal representative.
Contact Us for a Free Consultation
At Nelson MacNeil Rayfield, we understand the importance of pushing forward, even in difficult circumstances, to see that those who act wrongfully are ultimately held responsible for the harm that they cause. We also appreciate that the law is complicated and can seem overwhelming at times to ordinary citizens. We understand these laws and deal with them on a routine basis. If you have any questions about how to proceed legally, or if you would like a free consultation, please call us at your convenience.
Oregon Revised Statutes Section 30.020 – Action for wrongful death: http://www.oregonlaws.org/ors/30.020
Oregon Revised Statutes Section 30.030 – Distribution of Damages: http://www.oregonlaws.org/ors/30.030
Oregon Revised Statutes Section 30.080 – Effect of Death of Wrongdoer: http://www.oregonlaws.org/ors/30.080
Oregon Revised Statutes Section 30.080 - Procedure Upon Death of Injured Person: http://www.oregonlaws.org/ors/30.075
Oregon Rule of Civil Procedure 34 - https://www.oregonlegislature.gov/bills_laws/Pages/orcp.aspx