Damages Against the Commonwealth of Pennsylvania in a Death Action

Damages Against the Commonwealth of Pennsylvania in a Death Action

The damages one can recover for the loss of a loved varies from many factors, including the relationship between the decedent and the surviving person, whether the person was killed in the scope of his and/or her job, and the status of the tortfeasor just to name a few of the numerous factors. To cover each and every element would be a large amount of complex information. So, to take it one step at a time, this article will focus on a fictional death claim against the Commonwealth of Pennsylvania for a road defect that caused the death of a young mother.

Claims involving road defects come within an exception to Sovereign Immunity Act that protects the state from being sued. The decedent’s estate and the decedent’s children may bring a survival and a wrongful death action respectively. Each of these actions will carry a separate cap of $250,000 for a combined cap of $500,000 against the state. The type of damages recoverable against the state is also limited as follows:

TYPES OF DAMAGES RECOVERABLE. -- Damages shall be recoverable only for:

 

            (1) Past and future loss of earnings and earning capacity.

            (2) Pain and suffering.

(3) Medical and dental expenses including the reasonable value of reasonable and necessary medical and dental services, prosthetic devices and necessary ambulance, hospital, professional nursing, and physical therapy expenses accrued and anticipated in the diagnosis, care and recovery of the claimant.

 

(4) Loss of consortium.

(5) Property losses, except that property losses shall not be recoverable in claims brought pursuant to section 8522(b) (5) (relating to potholes and other dangerous conditions).

 

42 Pa.C.S § 8528 (2009).

The damages recoverable for the Wrongful Death Action in light of the above damage limitations are: (1) Medical and dental expenses including the reasonable value of reasonable and necessary medical and dental services, prosthetic devices and necessary ambulance, hospital, professional nursing, and physical therapy expenses accrued as hospital and medical damages; (2) child’s loss of any contributions they would have received between the death of the decedent and to the present, including: money decedent would have spent for or given to the child for shelter, food, clothing, medical care, education, entertainment, gifts, and recreation would be recoverable as contributions from future lost earnings and must be subtracted from future lost earnings recovered in the survival action, Mease v. Commonwealth, 603 A.2d 679, 681-82 (Pa. Commw. Ct. 1992); and (3) all sums the decedent would have contributed to the support of her family between today and the end of his or her life expectancy (again must be subtracted from future lost earnings in the survival action). See Huda v. Kirk, 551 A.2d 637, 638-40 (Pa. Commw. Ct. 1988) (determining that medical expenses are recoverable); see Pa. S.S.J.I. (Civ.) § 6.19 (2009); see 42 Pa.C.S. § 8528(c). Funeral, burial, and estate administration expenses incurred are not recoverable under the limitation on damages statute and thus not recoverable under the wrongful death action. Huda at 639. Also, loss of consortium is not recoverable under the wrongful death action because there is no claim for consortium between a child and mother, and recovery under the limitations statute is limited to consortium which does not include loss of society and affections of a parent. Dep’t of Pub. Welfare v. Schultz, 855 A.2d 753, 755 (Pa. 2004); Huda at 638; Quinn v. PennDot, 719 A.2d 1105, 1109 (Pa. Commw. Ct. 1998).

The damages recoverable in the Survival Action are (1) future lost earnings between today and the end of her life expectancy less the contributions to family already recovered in a Wrongful Death Action and the cost of personal maintenance, including: necessary and economical living expenses, such as food, shelter, and clothing; (2) future lost earnings from today to the end of the decedent’s life expectancy as described above; and (3) pain and suffering from pre-impact fright, 42 Pa.C.S. § 8528(c) (2); Dejesus v. United States Dep’t of Veteran Affairs, 205 U.S. Dist. Lexis. 19282, *10, 13-14, 16, 19, 25, 27-28 (E.D. Pa. 2005); In re Consolidation Coal Company, 296 F. Supp. 837, 843-44 (W.D. Pa. 1968); Mecca v. Lukasik, 366 Pa. Super. 149, 170-71 (Pa. Super. 1987). See Huda v. Kirk, 551 A.2d 637, 638-40 (Pa. Commw. Ct. 1988); see Pa. S.S.J.I. (Civ.) § 6.19 (2009); see 42 Pa.C.S. § 8528(c).  Also, funeral expenses may not be recovered under the survival action. McClinton v. White, 427 A.2d 218, 221 (Pa. Super. Ct. 1981), vac., 444 A.2d 85 (Pa. 1982); Pa. S.S.J.I. (Civ.) § 6.19, subcommittee note at *2.

In conclusion, there are compensable actions in this case for both the decedent’s estate and the decedent’s child. The limitation on damages will apply individually to each case raising the limitation to $500,000.


The damages one can recover for the loss of a loved varies from many factors. James Heneghan explains.