North Carolina § 28A-18-2 - Death by wrongful act of another; recovery not assets.

§ 28A-18-2. Death by wrongful act of another; recovery not assets.

When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled the injured person to an action for damages therefor, the person or corporation that would have been so liable, and the personal representatives or collectors of the person or corporation that would have been so liable, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony. The personal representative or collector of the decedent who pursues an action under this section may pay from the assets of the estate the reasonable and necessary expenses, not including attorneys' fees, incurred in pursuing the action. At the termination of the action, any amount recovered shall be applied first to the reimbursement of the estate for the expenses incurred in pursuing the action, then to the payment of attorneys' fees, and shall then be distributed as provided in this section. The amount recovered in such action is not liable to be applied as assets, in the payment of debts or devises, except as to burial expenses of the deceased, and reasonable hospital and medical expenses not exceeding four thousand five hundred dollars ($4,500) incident to the injury resulting in death, except that the amount applied for hospital and medical expenses shall not exceed fifty percent (50%) of the amount of damages recovered after deducting attorneys' fees, but shall be disposed of as provided in the Intestate Succession Act. The limitations on recovery for hospital and medical expenses under this subsection do not apply to subrogation rights exercised pursuant to G.S. 135-48.37. All claims filed for burial expenses of the decedent and reasonable hospital and medical expenses shall be subject to the approval of the clerk of the superior court and any party adversely affected by any decision of said clerk as to said claim may appeal to the superior court in term time. Damages recoverable for death by wrongful act include: Expenses for care, treatment and hospitalization incident to the injury resulting in death; Compensation for pain and suffering of the decedent; The reasonable funeral expenses of the decedent; The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected; Net income of the decedent, Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered, Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered; Such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had the decedent survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in G.S. 1D-5; Nominal damages when the jury so finds. All evidence which reasonably tends to establish any of the elements of damages included in subsection (b), or otherwise reasonably tends to establish the present monetary value of the decedent to the persons entitled to receive the damages recovered, is admissible in an action for damages for death by wrongful act. In all actions brought under this section the dying declarations of the deceased shall be admissible as provided for in G.S. 8-51.1. History (R.C., c. 1, s. 10; c. 46, ss. 8, 9; 1868-9, c. 113, ss. 70-72, 115; Code, ss. 1498-1500; Rev., ss. 59, 60; 1919, c. 29; C.S., ss. 160, 161; 1933, c. 113; 1951, c. 246, s. 1; 1959, c. 879, s. 9; c. 1136; 1969, c. 215; 1973, c. 464, s. 2; c. 1329, s. 3; 1981, c. 468; 1985, c. 625; 1993, c. 299, s. 1; 1995, c. 514, s. 2; 1997-456, s. 7; 2006-264, s. 66(b); 2011-284, s. 16; 2011-344, s. 4; 2013-91, s. 1(a).) Cross References. - As to admissibility of dying declarations in civil and criminal proceedings, see G.S. 8-51.1 and G.S. 8C-1 , Rule 804. As to power of personal representative to maintain action for wrongful death and to compromise or settle any such claims, subject to approval of judge of superior court, see G.S. 28A-13-3(23) . Editor's Note. - This section was amended by Session Laws 2011-284, s. 16, and Session Laws 2011-344, s. 4, in the coded bill drafting format provided by G.S. 120-20.1 . The words "or her" in the first sentence of subsection (a), as added by Session Laws 2011-284, were not struck through by Session Laws 2011-344. This omission was corrected by Session Laws 2013-91, s. 1(a), which deleted the reference to "or her" in subsection (a). Effect of Amendments. - Session Laws 2006-264, s. 66(b), effective August 27, 2006, and applicable to payments made by the Plan after July 20, 2004, for which reimbursement is sought on or after August 27, 2006, and also applicable to wrongful deaths occurring on or after August 27, 2006, inserted the next-to-last sentence of subsection (a). Session Laws 2011-284, s. 16, effective June 24, 2011, in subsection (a), in the first sentence, inserted "or her" and subtituted "the injured person" for "him," and in the fourth sentence, substituted "devises" for "legacies." Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, in the first sentence of subsection (a), substituted "the injured person" for "him," and "the personal representatives or collectors of the person or corporation that would have been so liable" for "his or their personal representatives or collectors." Session Laws 2013-91, s. 1(a), effective June 12, 2013, in subsection (a), deleted "or her" following "would have been so liable, and" in the first sentence, and substituted "G.S. 135-48-37" for "G.S. 135-45.1" in the fifth sentence, and "burial expenses of the decedent and reasonable hospital and medical expenses shall be subject to the approval of" for "such services shall be approved by" in the last sentence. Legal Periodicals. - For discussion of the right of husband or wife to recover damages for the loss of consortium by reason of injury or death, see 3 N.C.L. Rev. 98 (1925). For critical appraisal of former wrongful death statute, see 11 N.C.L. Rev. 263 (1933); 16 N.C.L. Rev. 211 (1938). As to admissibility of evidence relating to damages recoverable for wrongful death, see 28 N.C.L. Rev. 106 (1950). For note on possibility of recovery for wrongful death of unborn child, see 28 N.C.L. Rev. 245 (1950). As to necessity prior to the 1951 amendment of former wrongful death statute for alleging that action for wrongful death was instituted within one year, see 28 N.C.L. Rev. 334 (1950). For note on action for death based upon breach of warranty of fitness in sale of drug, see 30 N.C.L. Rev. 478 (1952). For comment on wrongful death damages in North Carolina, see 44 N.C.L. Rev. 402 (1966). For case law survey as to damages, see 44 N.C.L. Rev. 993 (1966). For note on parent-child tort immunity, see 44 N.C.L. Rev. 1169 (1966). For comment on Stetson v. Easterling, 274 N.C. 152 , see 47 N.C.L. Rev. 280 (1968). For comment on Greene v. Nichols, 274 N.C. 18 , see 47 N.C.L. Rev. 281 (1968). For note on wife's right to husband's consortium, see 47 N.C.L. Rev. 1006 (1969). For note on choice of law rules in North Carolina, see 48 N.C.L. Rev. 243 (1970). For comment on new North Carolina wrongful death statute, see 48 N.C.L. Rev. 594 (1970). For article on recent developments in North Carolina tort law, see 48 N.C.L. Rev. 791 (1970). For article on the 1969 amendments to the former wrongful death statute, see 6 Wake Forest Intra. L. Rev. 211 (1970). For survey of 1976 case law on torts, see 55 N.C.L. Rev. 1088 (1977). For note on the interaction between North Carolina's wrongful death statute and its statute of limitations for not readily apparent personal injuries or product defects, see 13 Wake Forest L. Rev. 543 (1977). For survey of 1977 law on torts, see 56 N.C.L. Rev. 1136 (1978). For survey of 1979 tort law, see 58 N.C.L. Rev. 1561 (1980). For article, "North Carolina's New Products Liability Act: A Critical Analysis," see 16 Wake Forest L. Rev. 171 (1980). For survey of 1980 law on civil procedure, see 59 N.C.L. Rev. 1053 (1981). For survey of 1980 tort law, see 59 N.C.L. Rev. 1239 (1981). For survey of 1982 law on torts, see 61 N.C.L. Rev. 1225 (1983). For article, "Legal Implications of Human in Vitro Fertilization for the Practicing Physician in North Carolina," see 6 Campbell L. Rev. 5 (1984). For article, "Economic Valuation for Wrongful Death," see 6 Campbell L. Rev. 47 (1984). For note on use of the family purpose doctrine when no outsiders are involved, in light of Carver v. Carver, 310 N.C. 669 , 314 S.E.2d 739 (1984), see 21 Wake Forest L. Rev. 243 (1985). For comment, "Wrong Without a Remedy - North Carolina and the Wrongful Death of a Stillborn," see 9 Campbell L. Rev. 93 (1986). For note discussing the appointment of an administrator for a decedent's estate to create diversity of citizenship, see 21 Wake Forest L. Rev. 489 (1986). For note discussing wrongful death recovery for a viable unborn fetus, in light of DiDonato v. Wortman, 80 N.C. App. 117, 341 S.E.2d 58 (1986), see 16 N.C. Cent. L.J. 207 (1987). For note on the wrongful death of a viable fetus in North Carolina, see 66 N.C.L. Rev. 1291 (1988). For note on the expansion of the viable fetus wrongful death action, see 11 Campbell L. Rev. 91 (1988). For note on the wrongful death of a viable fetus, see 23 Wake Forest L. Rev. 849 (1988). For note, "Examining DiDonato Damage Limitation and Mandatory Joinder Requirements - Greer v. Parsons," see 15 Campbell L. Rev. 97 (1992). For article, "Person or Thing - In Search of the Legal Status of a Fetus: A Survey of North Carolina Law," see 17 Campbell L. Rev. 169 (1995). For comment, "In re Estate of Lunsford and Statutory Ambiguity: Trying to Reconcile Child Abandonment and the Intestate Succession Act," see 81 N.C.L. Rev. 1149 (2003). For article, "Medical Malpractice and Wrongful Death: Some Lives are Worth More Than Others," see 8 Elon L. Rev. 461 (2016). For comment, "Two Tiers of Plaintiffs: How North Carolina's Tort Reform Efforts Discriminate Against Low-Income Plaintiffs," see 96 N.C.L. Rev. 512 (2018).