The allure of the open road while riding a motorcycle motivates millions of people to ride each and every year. Sometimes the reasons for riding can be more practical such as for day to day transportation to work or school. Regardless of your reason for riding, all motorcyclists and motorist deserve safe and well maintained highways and roads. Safety is especially important for a motorcyclist because motorcycles leave the rider more exposed to the violent forces that are involved in an accident. Motorcycles do not have air bags, a solid frame surrounding its passengers, safety harnesses, or other features cars, trucks, and SUVs use to lessen the impact on the occupants.
What is a wrongful death action?
Pennsylvania’s Wrongful Death Act corrected a problem left by the common law where the family members of a deceased loved one would be unable to recover for the death of their close family member. The Wrongful Death Act created an exception to this common law rule.
Wrongful death damages focus on the loss suffered by the children, spouse, or parents of a deceased individual. Because wrongful death actions focus on the losses of the family members, damages for the pain and suffering experienced by the deceased individual are not available. However, one may recover:
- Medical expenses incurred from the care of the deceased individual.
- Funeral expenses
- Expenses related to the administration of the deceased’s estate
Furthermore, one is also permitted to recover what Pennsylvania courts term a pecuniary loss. A pecuniary loss is the monetary loss by a dependent when someone who provides support dies or is killed. These damages would typically include the present value of the services that the deceased would have rendered to the family if he or she had survived. It is important to note the Pennsylvania courts do not consider services in a cramped or overly restricted manner. The Rettger decision held that services was not limited to tasks such as the yard work that was at issue. Rather, services also includes the deep emotional and psychological loss when it is known that negligence was the cause of the parent, spouse or child’s death. Rettger v. UPMC, 991 A.2d 915 (Pa. Super. 2010). This severe anguish can also be included in the definition of services.
Damages can also include the loss of any contribution the family member would have received between the time of the decedent’s death and the date of the award. More specifically, this can include money for a home or apartment, food, clothing, medical care and education.
How can I recover for my loved one’s pain and suffering then?
Although pain and suffering damages are not available through a wrongful death action, a survival action brought by the deceased individual’s estate can seek damages for pain and suffering. Survival actions are available, “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”. 42 Pa.C.S.A. § 8301. However, for pain & suffering damages to be available, the individual who was killed must have consciously experienced the pain and suffering that is alleged. If the person was killed instantly or if they were rendered unconscious, pain and suffering damages are likely to be reduced or to be unavailable.
Let’s unpack that, but first, it’s important to remember that the jury may choose to believe or disbelieve the testimony that is offered. However let’s assume that the jury finds credible the testimony that a motorcyclist did not see the tractor-trailer approaching from behind and that he or she was killed instantly. In a case like this, pain and suffering damages would be unlikely, at best. However, if the motorcyclist saw the impending collision in his or her mirror and was subsequently pinned under his or her bike while bleeding to death, then damages for pain and suffering would be extremely likely.
However, the damages sought in wrongful death and survival actions may not overlap or result in a duplicative award. Kiser v. Schulte 648 A.2d 1 (Pa. 1994).
Put our wrongful death experience to work for you
If a loved one paid the ultimate price due to the carelessness or recklessness of another motorist or due to an auto defect, you may be able to recover monetary damages. To schedule a free and confidential case evaluation with a Pennsylvania wrongful death attorney, call the law offices of Reiff & Bily at (215) 274-0072, or contact us online.