WPI 31.06.01 Measure of Damages—Wrongful Death Actions Brought by Parent for Death of Child—RCW...

Use for wrongful death actions filed by a parent under RCW 4.24.010 (the child injury or death statute). Do not use this instruction if the parents have elected to sue under the wrongful death statute, RCW 4.20.010.

Do not use this instruction for claims under RCW 4.20.046 (the general survival statute) or RCW 4.20.060 (the special survival statute). If elements of damage to the estate of the child are claimed by the personal representative pursuant to either of those statutes, use WPI 31.01.01 (Measure of Damages—Survival Action—Statutory Beneficiaries) or WPI 31.01.02 (Measure of Damages—Survival Action—No Statutory Beneficiaries), as appropriate.

Use bracketed material as applicable. If some of the bracketed phrases are deleted, practitioners may need to capitalize the first word that follows the deleted phrase.

See Comment for further discussion of contributory negligence of children.

This instruction has been modified for this edition. RCW 4.24.010 was amended effective July 28, 2019, to allow claims by parents for the death or injury of an adult child who is not survived by a spouse, state registered domestic partner, or children of his or her own, so long as the parent, parents, or legal guardian have had significant involvement in the life of the deceased adult child. “Significant involvement” is defined at RCW 4.24.010(1). The amendment is remedial and retroactive and “applies to all claims that are not time-barred, as well as any claims pending in any court on July 28, 2019.” Laws 2019, Chapter 159, § 6. The amendment does not affect the prior requirement that the parents or legal guardians of a deceased minor child demonstrate that he or she regularly contributed to the support of the minor child. RCW 4.24.010(1).

There are several somewhat related statutes. The potentially recoverable noneconomic damages differ depending upon whether the claims for damages arising out of the death of a child are pursued under the wrongful death statute, RCW 4.20.010, or the child injury or death statute, RCW 4.24.010. For instance, the recovery of the parents' personal grief, mental anguish, and suffering as a result of the child's death is not recoverable under RCW 4.20.010 et seq.

For a general discussion, see DeWolf & Allen, 16 Washington Practice, Tort Law and Practice §§ 7:2, 7:4 (5th ed.).

Background. A claim by the personal representative for loss to the estate under RCW 4.20.046 (the general survival statute), or, in cases involving the death of a child upon whom the parents were dependent for support, under RCW 4.20.060 (the special survival statute), is often joined in the same action with the direct claim of a parent for wrongful death under RCW 4.24.010 (the child injury or death statute). This instruction covers only those damages recoverable for the parents' direct action under RCW 4.24.010. A separate instruction is needed for claims for damages to the child's estate brought by the personal representative under one of the survival statutes.

Election of remedies. If the parents meet the statutory criteria, they have an election of remedies and may sue under either the wrongful death statute (RCW 4.20.010) or the parental claim for death of a child statute (RCW 4.24.010). Machek v. City of Seattle, 118 Wash. 42, 45, 48, 203 P. 25 (1921); Cavazos v. Franklin, 73 Wn.App. 116, 121, 867 P.2d 674 (1994); Masunaga v. Gapasin, 57 Wn.App. 624, 627–28, 790 P.2d 171 (1990). In addition to either of these remedies, the personal representative can maintain an entirely independent survival action. Cavazos, 73 Wn.App. at 121.

Elements of damages. The court in Hinzman v. Palmanteer, 81 Wn.2d 327, 329, 331–32, 501 P.2d 1228 (1972), held that the statutory terms “loss of love and injury to or destruction of the parent-child relationship” were intended by the Legislature to add “parental grief, mental anguish and suffering” as elements of damages under RCW 4.24.010. The Hinzman court also held that those elements of damages were in addition to “loss of companionship,” which existing case law defined to be “the value of mutual society and protection.” Hinzman, 81 Wn.2d at 329, 331–32 (quoting Clark v. Icicle Irr. Dist., 72 Wn.2d 201, 432 P.2d 541 (1967)). The court in Hinzman also held that it was not error to instruct on damages in the words of the statute.

Death of a minor child. Damages under RCW 4.24.010 for loss of companionship or for injury to or destruction of the parent-child relationship are not limited to the period of the decedent's minority. Balmer v. Dilley, 81 Wn.2d 367, 371–72, 502 P.2d 456 (1972). In a case involving the death of a minor child, as opposed to the death of a child upon whom the parents are dependent for support, the measure of economic damages under RCW 4.24.010 for loss of services and support has been limited to the period of the decedent's minority. See Skeels v. Davidson, 18 Wn.2d 358, 139 P.2d 301 (1943); Mieske v. Pub. Util. Dist. No. 1 of Cowlitz Cnty., 42 Wn.2d 871, 259 P.2d 647 (1953); Lockhart v. Besel, 71 Wn.2d 112, 426 P.2d 605 (1967) (overruling Skeels in part) (holding that the measure of damages under RCW 4.24.010 should be extended to include the loss of companionship of a minor child during the minority).

Death of an adult child. Pursuant to the amendment of RCW 4.24.010, effective July 28, 2019, a parent or legal guardian who has had significant involvement in the life of an adult child may elect to pursue damages under this statute only if the child has no spouse, state registered domestic partner, or children.

Contributory negligence. RCW 4.22.020 provides in part that, “in an action brought for wrongful death or loss of consortium, the contributory fault of the decedent or injured person shall be imputed to the claimant in that action.” Traditionally, children under age six have not been held contributorily negligent. Price v. Kitsap Transit, 125 Wn.2d 456, 461–62, 886 P.2d 556 (1994); Bauman v. Crawford, 104 Wn.2d 241, 704 P.2d 1181 (1985). For a related discussion, see the Comment to WPI 11.03 (Child under Six Years of Age Incapable of Contributory Negligence).