Paying the Penultimate Price: Compensating Predeath Pain and Suffering in California

Authors

Daniel Cassee

Abstract

Senate Bill 447, California’s recent lift of the ban on recovery of damages for a decedent’s pain, suffering, and disfigurement in survival actions marks a necessary change in the state’s tort law, avoiding the arbitrary and even shocking outcomes that occurred under the former statutory regime. When the California State Legislature revisits the survival statute prior to the recent amendment’s sunset in 2026, it should choose to keep predeath noneconomic damages as part of the available recovery in a death case. However, the lack of in-state case law discussing predeath noneconomic damages will require California courts and lawmakers to look to other jurisdictions for guidance on the various doctrinal and evidentiary questions that inevitably flow from such an expansion of liability. These questions include the relationship between a tortious injury and the subsequent death, judicial review of noneconomic jury verdicts, the temporal scope of liability, and the evidentiary requirements for a claim of predeath pain and suffering. This Note outlines the circumstances leading the passage of Senate Bill 447, argues for the retention of predeath pain and suffering damages past the statutory sunset, and discusses how California courts might address the doctrinal questions that may arise in the context of cases implementing the new damages with reference to the many solutions found in jurisdictions around the United States.

Recommended Citation

Daniel Cassee, Paying the Penultimate Price: Compensating Predeath Pain and Suffering in California, 75 Hastings L.J. 823 (2024).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol75/iss3/6