Actions and Suits in Particular Cases

ORS 30.020
Action for wrongful death

  • when commenced
  • damages


(1)

When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer. In no case may an action be commenced later than the earliest of:

(a)

Three years after the death of the decedent; or

(b)

The longest of any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing the injury, including but not limited to the statutes of ultimate repose provided for in ORS 12.110 (Actions for certain injuries to person not arising on contract) (4), 12.115 (Action for negligent injury to person or property), 12.135 (Action for damages from construction, alteration or repair of improvement to real property), 12.137 (Action for loss of or damage to property arising from nuclear incident) and 30.905 (Time limitation for commencement of action).

(2)

In an action under this section damages may be awarded in an amount which:

(a)

Includes reasonable charges necessarily incurred for doctors’ services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent;

(b)

Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death;

(c)

Justly, fairly and reasonably compensates for pecuniary loss to the decedent’s estate;

(d)

Justly, fairly and reasonably compensates the decedent’s spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and

(e)

Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.

(3)

For the purposes of this section:

(a)

Two persons shall be considered to have a stepchild-stepparent relationship if one of the biological parents of the stepchild, while the stepchild is a minor and in the custody of this first biological parent, marries the stepparent who is not the second biological parent or the adoptive parent of the stepchild;

(b)

The stepchild-stepparent relationship shall remain in effect even though the stepchild is older than the age of majority or has been emancipated;

(c)

The stepchild-stepparent relationship shall remain in effect even though one or both of the biological parents of the stepchild die; and

(d)

The stepchild-stepparent relationship shall end upon the divorce of the biological parent and the stepparent. [Amended by 1953 c.600 §3; 1961 c.437 §1; 1967 c.544 §1; 1973 c.718 §2; 1991 c.471 §1; 1991 c.608 §1; 1995 c.618 §19]

Notes of Decisions

In General

Under former provisions of this section providing for action for benefit of "dependents," status of parenthood would not by itself establish dependency, and thus mother was not dependent of deceased son. Hines v. Hines, 32 Or App 209, 573 P2d 1260 (1978), Sup Ct review denied

Action against public body for wrongful death must be commenced pursuant to ORS 30.275 rather than this section. Housen v. Morse Brothers, 32 Or App 491, 574 P2d 361 (1978), Sup Ct review denied

Wrongful death products liability action is governed by two-year limitations period of Oregon Products Liability Act not three-year limitations period of wrongful death statute. Thompson v. Communications Technology, Inc. (CTI), 877 F2d 27 (9th Cir. 1989)

Where cause of action is within scope of wrongful death action, common law claim by beneficiary of decedent is not available. Horwell v. Oregon Episcopal School, 100 Or App 571, 787 P2d 502 (1990)

Where differential treatment is inherent in any statutory scheme which continues partial sovereign immunity and Oregon Constitution permits sovereign immunity, challenged statutory scheme which extends three-year statute of limitations to most wrongful death actions but only provides two-year statute of limitations when wrongful death was government-inflicted does not violate Article I, Section 20 of the Oregon Constitution. Van Wormer v. City of Salem, 309 Or 404, 788 P2d 443 (1990)

For death caused by product defect, time limitation for commencement of action under ORS 30.905 supersedes time limitation provided by this section. Kambury v. DaimlerChrysler Corp., 334 Or 367, 50 P3d 1163 (2002)

Except in limited range of cases, substantial factor standard of causation does not relieve plaintiff of burden to show death would not have occurred but for wrongful act or omission. Joshi v. Providence Health System of Oregon Corp., 198 Or App 535, 108 P3d 1195 (2005), aff'd 342 Or 152, 149 P3d 1164 (2006)

Action By Personal Representative

In wrongful death action allegedly resulting from medical malpractice, three year wrongful death limitation under this section applied rather than two year medical malpractice limitation under ORS 12.110. Baxter v. Zeller, 42 Or App 873, 601 P2d 902 (1979), Sup Ct review denied

Effect of this section is not to allow single claim for benefit of decedent's estate but rather to allow action to be brought in name of personal representative to enforce individual claims of spouse and each child for pecuniary losses and losses of society, companionship, and services resulting from decedent's death. Christensen v. Epley, 287 Or 539, 601 P2d 1216 (1979); Graves v. Tulleners, 205 Or App 267, 134 P3d 990 (2006)

Contributory negligence of sole beneficiaries to action can be asserted as defense. Robinson v. Children's Services Division, 140 Or App 429, 914 P2d 1123 (1996)

Ability of estate to bring action is dependent on decedent having cause of action at time of death. Union Bank of California v. Copeland Lumber Yards, 213 Or App 308, 160 P3d 1032 (2007); Hobart v. Holt, 222 Or App 550, 194 P3d 820 (2008)

Action Commenced Within Three Years

Where dermatologist misdiagnosed mole on decedent's scalp, injury occurred no earlier than time when mole began to grow, because that event was earliest time when decedent could have been aware of any harm traceable to physician. Repp v. Hahn, 45 Or App 671, 609 P2d 398 (1980), Sup Ct review denied

Action for Death of Child

Plaintiff was entitled to submit to jury issue whether defendant's nurse was negligent in failing to properly monitor child's heartbeat while its mother was in labor prior to delivery. Libbee v. Permanente Clinic, 268 Or 258, 518 P2d 636 (1974)

Action for wrongful death of viable unborn child can be maintained in Oregon. Libbee v. Permanente Clinic, 268 Or 258, 518 P2d 636 (1974)

Where there are surviving children of decedent, parent of decedent has cause of action for wrongful death independent of laws of intestate succession. Rake v. Boise Cascade, 43 Or App 767, 604 P2d 421 (1979), Sup Ct review denied

Nonviable fetus is not "person" for purposes of wrongful death action. LaDu v. Oregon Clinic, P.C., 165 Or App 687, 998 P2d 733 (2000), Sup Ct review denied

Action for Death of Spouse

Person with whom decedent maintained domestic relationship without marriage for five years was not "surviving spouse" within meaning of this section. Ore-Ida Foods v. Gonzalez, 43 Or App 393, 602 P2d 1132 (1979), Sup Ct review denied

Damages

Where decedent had agreed to perform valuable services for sole beneficiary of decedent's estate without monetary compensation, measure of damages is pecuniary value of lost services. Goheen v. Gen. Motors Corp., 263 Or 145, 502 P2d 223 (1972)

In wrongful death action, plaintiff need not show heirs that would have survived decedent if he had lived normal life span in order to recover damages for pecuniary loss to decedent's estate, so long as there are living heirs at time action is brought. Goddard v. Munson, 108 Or App 342, 816 P2d 619 (1991), Sup Ct review denied

Economic damages awarded for pecuniary loss in wrongful death actions are not limited to objectively verifiable monetary losses. Ingram v. Acands, Inc., 977 F2d 1332 (1992)

Child's loss of "services" of deceased parent is item of economic damages. Kahn v. Pony Express Courier Corp., 173 Or App 127, 20 P3d 837 (2001), Sup Ct review denied

Law Review Citations

10 WLJ 217, 221-228, 296-306 (1974); 74 OLR 379 (1995)

§§ 30.010 to 30.100

Notes of Decisions

Parents of minor child may not recover compensation for loss of child's society and companionship when child is negligently injured. Beerbower v. State ex rel Oregon Health Sciences, 85 Or App 330, 736 P2d 596 (1987), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021