Wrongful Death Case Analysis

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In light of the decision, not only may an adult child recover for loss of society and companionship for the death of a parent, a parent may recover for loss of society and companionship for the death of an adult child.

Reading “children” in the statute to include adult children, sec. 895.04(4) provides in relevant part: “… damages … in the case of a deceased adult, for loss of society and companionship may be awarded to the … parents of the deceased.”

Thus, in a case involving corollary facts to those in this case — death of adult child — parents may recover, just as adult children may recover for the death of a parent.

However, a good case can be made that the statute is infirm, because the damage caps are arbitrary.

A parent may recover $500,000 for a minor child; a minor child may recover $350,000 for a parent; an adult child may recover $350,000 for a parent; and a parent may recover $350,000 for an adult child.

If the deceased is a parent, but is still a minor, the statute is arbitrary. The child of a deceased minor can recover $500,000, but the child of a deceased adult can only recover $350,000.

In addition, the statute could be read in one of two ways as concerns siblings.

In respect to siblings, the statute provides, “… damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the … siblings of the deceased, if the siblings were minors at the time of the death.”

	Related Article Adults can still be ‘children’

The first interpretation is: a minor sibling survivor may recover $500,000 for the death of another sibling, if the deceased sibling was a minor, and $350,000 if the deceased sibling was an adult; however, an adult sibling may recover nothing for the death of another sibling, whether the deceased sibling is a minor or not.

In the alternative, the statute could be read to require that all siblings be minors in order for recovery, both the deceased and the survivors. In that case, surviving minor siblings can recover $500,000 for the death of another minor sibling, but if either was an adult, the recovery would be zero.

In the recent case of Ferdon v. Wisconsin Patients Compen-sation Fund, 2005 WI 125, 284 Wis.2d 573, 701 N.W.2d 440, the Wisconsin Supreme Court struck down the damage caps in Wisconsin’s medical malpractice chapter — caps that were less arbitrary than those in sec. 895.04(4).

The court wrote, “the rational basis standard in the equal protection context does not require that all individuals be treated identically, but any distinctions must be relevant to the purpose motivating the classification. Similarly situated individuals should be treated similarly. In essence, the rational basis standard asks ‘whether there are any real differences to distinguish the favored class … from other classes … who are ignored by the statute….’ (cites, footnotes omitted).” Ferdon, 701 N.W.2d at 459.

Perhaps, it is not impossible to explain “any real differences” between the favored and ignored classes in the wrongful death statute, but any attorney who undertakes that job will face a Herculean task.

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David Ziemer can be reached by email.