The Judge-Made Wrongful Death Statute of Limitations for Minors is Wrong

by Bob Nylander

Copyright Robert G. Nylander, Cutler Nylander & Hayton, P.S., 2001-2010

“In Washington, wrongful death actions are strictly creatures of statute.” Atchison v. Great W. Malting Co., 161 Wn. 2d 372, 376, 166 P.3d 662, 664 (2007).

“Only after examining the weighty considerations that underlie the stare decisis doctrine, which has at its core the need for predictability in cases, we have come to the conclusion that judges of earlier generations who concluded that a wrongful death cause of action did not exist at common law misperceived what the common law was . . . .” LaFage v. Jani, 166 N.J. 412, 766 A.2d 1066, 1079-80 (2001)

In Washington, under the provisions of RCW 4.16.190, a minor has until his until his or her eighteenth birthday before the time period of any statute of limitations begins to run. However, the Washington Supreme Court in Huntington v. Samaritan Hospital, 101 Wn.2d 466, 680 P.2d 58 (1984), ruled that the in wrongful death cases, minors were not to receive the benefit of RCW 4.16.190. The Huntington rule continues to be applied today. Atchison v. Great W. Malting Co., 161 Wn. 2d 372, 166 P.3d 662 (2007).

The reasoning of Huntington was flawed. It was premised on a faulty historical assumption, now conclusively shown to be wrong, namely, the assumption that “wrongful death actions are strictly creatures of statute,” and that therefore, the only relief could be obtained by the administrator of the estate, and not the child of the deceased in his or her own right. The legislature should correct this longstanding misunderstanding in Washington’s decisional law, because the Supreme Court has declined to do so.

An error has lingered over Washington’s decisional law for more than one hundred years. That error is the assumption that there is no common law cause of action for wrongful death, and that the action is purely statutory. In Huntington, the Supreme Court held that RCW 4.16.190 did not toll the statue of limitations for minors in a wrongful death case. Huntington, in turn, relied on earlier, and equally incorrect, judicial decisions. In those earlier cases, the judges misperceived what the common law was.

The Huntington majority reasoned that 1) wrongful death actions are strictly statutory; 2) the statute authorizes the personal representations to bring the action; 3) the tolling statute, RCW 4.16.190, only becomes operative if “a person entitled to bring an action” is disabled; and 4) therefore the statute is tolled only if the personal representative is disabled. Huntington at 101 Wn.2d 469–70. The Court in Huntington relied on the unfounded maxim that “wrongful death actions are strictly statutory.” Huntington at 469, citing Wood v. Dunlop, 83 Wn.2d 719, 521 P.2d 1177 (1974). The ultimate source of this adage in Washington seems to be dicta found in Hedrick v. Ilwaco Ry. & Nav. Co., 4 Wash. 400, 402-403, 300 P. 714 (1892). There the Court stated:

It is settled beyond controversy that, at common law, no civil action could be maintained for damages resulting from the death of a human being. But that defect of the common law has been obviated by statute in the several states, analogous to the English statute commonly known as “Lord Campbell’s Act” (9 & 10 Vict. c. 93), though often varying more or less from its provisions, especially as to the party entitled to maintain the action. The Hedrick court cited no precedent for its statement.

Legal scholars have identified the source of the unfounded maxim that the common law denies recovery for wrongful death. See, e.g., LaFage v. Jani, 166 N.J. 412, 766 A.2d 1066 (2001) and Justice Handler’s concurring opinion in Negron v. Llarena, 156 N.J. 296, 716 A.2d 1158, 1164 et seq. (1998). The universal conclusion is that the source of the unfounded maxim was the case of Baker v. Bolton, 170 Eng. Rep. 1033 (1808). “Bakers was not based on precedent or logic; and that led Dean Prosser to observe that it was cheaper for the defendant to kill the plaintiff than to injure him.'” LaFage, supra, at 1076, quoting Prosser & Keeton on Torts, section 127 (5th ed. 1984). The Baker rule was adopted by the Massachusetts court in Carey v. Berkshire Railroad Co., 55 Mass. (1. Cush.) 475 (1848). That court simply declared that the rule of Baker “is the doctrine of the common law.” Id. at 478. The Carey court made that statement with no reference whatsoever to prior Massachusetts or other cases allowing for recovery for wrongful death. See Negron at 1166.

Other jurisdictions quickly followed Carey. See Negron at 1166. Connecticut, for instance, adopted the Carey rule in Conn. Mut. Life Ins. Co. v. New York and New Haven R.R., 25 Conn. 265 (1856) without discussion of its earlier decision in Cross v. Guthery, 1 Am. Dec. 61 (1794) in which it had allowed recovery. Washington apparently derived the rationale of the Hedrick case from Carey and its progeny.

Baker simply was never the rule in the United States. Scholarly research has shown that recovery for wrongful death was accepted and acknowledged in the United States (and in the colonies) before Baker. Negron, supra, at 1165. See also, 1 S. Speiser, Recovery for Wrongful Death and Injury 1 (3d ed.1992). Recovery was allowed in colonial times in at least Pennsylvania, Massachusetts, Maine and New York, and in the federal period in at least
Connecticut. Id.

Responding to modern scholarship, courts have begun to reverse their earlier precedents and reject the notion that wrongful death actions are strictly statutory. The United States Supreme Court in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 384, 90 S.Ct. 1772, 1779, 26 L. Ed.2d 339, 347 (1970) did so in the maritime context, overruling one hundred years of precedent. The Massachusetts court, which imported Baker into American law in the first place, overruled itself in Gaudette v. Webb, 362 Mass. 60, 284 N.E. 2d 222 (1972), finding that there is a common law cause of action. More recently, New Jersey overruled its prior precedents in the LaFage case, at 1079-80, stating:

Only after examining the weighty considerations that underlie the stare decisis doctrine, which has at its core the need for predictability in cases, we have come to the conclusion that judges of earlier generations who concluded that a wrongful death cause of action did not exist at common law misperceived what the common law was in New Jersey. There is no question in this case of any change in duty owed by health care providers to their patients. The change is remedial and not substantive; therefore, the change does not affect the confidence of people, such as health care providers, in their ability to predict the legal consequences of their actions.

The LaFage case also catalogs decisions from other jurisdictions holding that the origin of wrongful death actions lies in the common law, and is not based on statute law. There now can be no doubt that Lord Campbell’s Act did not create the remedy as was wrongly assumed by the Washington Court in Hedrick and Huntington.

The Baker rationale has been traced to a single source, the so-called felony-merger doctrine. LaFage at 1076-77. Under this doctrine, there could be no recovery for either an intentional or negligent homicide (all felonies) because all of the felon/tortfeasor’s property was forfeited to the Crown. Id. There would be no point in having a civil action, since no damages could possibly be obtained.

But the felony-merger doctrine was never the law in the United States or the colonies. LaFage at 1077, citing Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-83, 94 S.Ct. 2080, 2090-92, 40 L.Ed. 452, 468 (1974); State v. 1979 Pontiac Trans Am, 98 N.J. 474, 479-80, 487 A.2d 722, 725, (1985). Washington law is identical: State v. Alaway, 64 Wn.App. 796, 828 P.2d 591 (1992).

The LaFage Court, at 1077, concluded that:

[T]he fact that forfeiture never existed in New Jersey under the common law . . . provides additional support for our conclusion that because the felony-merger doctrine that undergirds Baker was never adopted in New Jersey, our case law that applied Baker was mistaken.

Similarly, the fact that the felony-merger forfeiture rule did not apply in the original United States or the colonies, or Washington, provides additional reason to reject the Hedrick dicta that there was no common law cause of action for wrongful death.

Again, because the Huntington Court assumed that the cause of action for wrongful death was strictly a statutory one, and not a common law one, the Court concluded that only the statutorily named representative could bring the action, and that tolling would apply only if that representative were disabled:

The tolling statute, RCW 4.16.190, thus becomes operative only if the personal representative, the “person entitled to bring an action,” is disabled. Consequently, the statute of limitations is not tolled by the minority of the statutory beneficiaries.

Huntington at 101 Wn.2d 469. As the underlying assumption that the action is strictly statutory is an incorrect assumption, the conclusion reached is wrong, and should be rejected.

The public policy reasons that RCW 4.16.190 should be applied were stated by Justice Rosellini in his dissent in Huntington. Justice Rosellini correctly indicated it to be the court’s inherent duty to protect minors’ rights during the time of their minority. The majority, he said, “reasons that when the legislature amended the wrongful death statute in 1917 to provide that only the personal representative may maintain the action, RCW 4.20.010, the legislation also required that the minority tolling provisions of RCW 4.16.190 be available only to the personal representative . . . ” Huntington, supra, at 470. However, the statute is “not so clear as the majority suggests.” Id., supra, at 471. Justice Rosellini went on to say that:

RCW 4.20.020 provides that a wrongful death action shall be for the benefit of the wife and children. The object of the wrongful death statute is to provide a remedy whereby the family of the deceased, who might have naturally expected maintenance or assistance from the deceased had he lived, may recover compensation from the wrongdoer commensurate with the loss sustained.

Id., citing Upchurch v. Hubbard, 29 Wn.2d 559, 188 P.2d 82 (1947).

Identifying the “object” of the wrongful death statute, Justice Rossellini stated that “the wrongful death statute, being remedial in nature, must be liberally construed in order to accomplish this intended purpose.” Id., citing Gray v. Goodson, 61 Wn.2d 319, 324, 378 P.2d 413 (1963). That liberal construction must coincide with what Justice Rosellini points out as “this court’s holding [in the past] that the personal representative is merely a statutory agent or trustee acting in favor of the statutory beneficiaries,” (emphasis added). Id. citing Gray, supra, at 327, 413; Wood v. Dunlop, 83 Wn.2d 719, 724, 521 P.2d 1177 (1974).

Justice Rosellini reasoned that: “the beneficiaries are the real parties in interest and have a right to the benefits of the cause of action.” Huntington, at 471, 61, citing Wood, supra, at 724, 1177.

In Washington, courts have recognized the importance of protecting minor children’s rights during their minority. In Hansen v. Lindell, 14 Wn.2d 643,657, 129 P.2d 234, 240 (1942), the court held that “a minor may sue within the statutory period after attaining his majority, even where the representative or trustee is barred by the statute.”

Therefore, pursuant to Hansen and RCW 4.16.190, Washington case law and statutory law recognizes the burden on due process to minors whose legitimate claim may be barred where they are not in a position to protect their own rights. The children should be allowed to proceed with their suit.

Prior court rulings should not be upheld solely on the basis of stare decisis if the rulings are themselves wrong:
Stare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law, but is not an absolute impediment to change. Without the stabilizing effect of this doctrine, law could become subject to incautious action or the whims of current holders of judicial office. But we also recognize that stability should not to be confused with perpetuity. If the law is to have a current relevance, courts must have and exert the capacity to change a rule of law when reason so requires. The true doctrine of stare decisis is compatible with this function of the courts. The doctrine requires a clear showing that an established rule is incorrect and harmful before it is abandoned.

In re Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). It cannot be more clear that the Hendrick-Huntington rule was without foundation and was incorrect.

However, the Supreme Court was invited to correct this wrong in Haggerty v. Bethel, 144 Wn. 2d 1017, 32 P.3d 283 (No. 71028-7, 2001), but declined to accept review. The time has come for the legislature to reject the old cases and recognize that a common law cause of action does exist for wrongful death.

Because the Huntington conclusion is wrong, the ordinary common law right, and statutes of limitations for minors, should be enforced in this state:

The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state.

RCW 4.04.010. The ordinary tolling provisions of RCW 4.16.190 should thus be applied to the common law cause of action for wrongful death.