Proper venue in a wrongful death case

Wrongful death is a statutorily created cause of action for pecuniary loss brought by heirs against a person who causes the death of another by a wrongful act or neglect. It does not represent a right of action that the deceased would have had if the deceased had survived the injury. It is a cause of action for the heir who recovers for the pecuniary loss suffered on account of the death of the relative. In any action for wrongful death resulting from negligence, the complaint must contain allegations as to all the elements of actionable negligence.

The law dealing with wrongful death is statutory the elements of damages are more specific than they are in personal injury cases generally. In addition, there are typical problems to be considered in the gathering of information, and in the proof of facts in such cases. There are also special problems involved in dealing with clients who have suffered personal losses. And many unique problems of law are presented.

For example, since death statutes differ from state to state, the question of conflict of laws and choice of forum may be of greater importance in death cases than in negligence cases generally. Only two states have punitive death statutes--Alabama and Massachusetts. In those states the recovery depends on the degree of fault of the wrongdoer and not upon the loss suffered either by relatives or the decedent's estate.

The same general considerations of selecting the forum are applicable whether the case is a death case or some other kind of negligence case. Thus, a forum that is good for the plaintiff in a personal injury case is ordinarily good for the plaintiff in a wrongful death case.

Since wrongful death law in the United States is statutory, and since the statutes vary from state to state, the choice of forum may determine the ultimate choice of death law. For example, if the forum follows the rule in the case Babcock v. Jackson, it may apply the death law of a state other than the one in which the accident occurred.

On the other hand, if it follows the traditional rule it will simply apply the law of the state in which the accident occurred. This factor can be significant not only in connection with varying state wrongful death laws, but also in connection with differing state laws on proof of liability. For example, many states have abandoned the requirement of privity in a breach of warranty action against a manufacturer; others have not. Considering the change in the basic conflict of laws rule, the choice of forum may therefore determine which law is to be applied in deciding whether the requirement of privity has been abandoned.

An interesting example is one where a scheduled airliner, on a flight to Philadelphia, Pennsylvania, blew up while over Maryland. Four of the deceased had lived their lives in Pennsylvania, had bought their tickets in Pennsylvania, had commenced their trips from Pennsylvania, and were returning to Pennsylvania. Thus, there were real and considerable grounds for argument, under the significant relationship rule that the law of Pennsylvania rather than the law of Maryland should be applied.

The law of Pennsylvania offered the plaintiffs some positive advantages, not only in providing more favorable death and survival statutes but also in providing favorable law concerning products liability. The plaintiffs, therefore, desired to have the law of Pennsylvania applied. Although the "Babcock" principle had been presented to the Pennsylvania Supreme Court, in a case arising out of another plane crash, as of that time the court had not rendered its decision, leaving the matter of whether it would follow the new rule conjectural.

On the other hand, there was a proper and legitimate way to bring and maintain the action in New York, since the defendant airline was a New York corporation and both the airline and the manufacturer of the airplane were amenable to suit in the New York state courts. Since New York had previously enunciated the "Babcock" principle, and since such principle was being followed in New York the safest way of invoking the new rule, and thus having Pennsylvania law applied, was to bring the action in New York.

It was an anomaly at that time that there was a better chance of having Pennsylvania law applied by the New York court than there was of having it applied by the Pennsylvania court. Long v. Pan American World Airways, 17 NY2d 337, 226 NYS2d 513, 213 NE2d 796 (1965); see also Representation Of Survivors In Death Actions, 11 AMJUR TRIALS 1 (2004).

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