As an element of a decedent's personal injury action, conscious prefatal-injury fear and apprehension of impending death survives a decedent's death and inures to the benefit of such decedent's estate.
The decedent and his passenger were riding a motorcycle that was being followed by the defendant driver. When the passenger hit the hood of the car with his fist, the driver sped up and hit the motorcycle. The vehicles were locked together for a few seconds before the motorcycle struck a light post and slid under the car, crushing the decedent. Plaintiff, the decedent's personal representative and mother, brought a wrongful death action and an action on behalf of the estate against defendant driver. After a judgment in her favor, she challenged the order of the District Court for Hall County (Nebraska) granting the driver's motion in limine preventing her from presenting evidence about her own mental anguish and that suffered by the decedent. The court affirmed the trial court's order as to the wrongful death action. It reversed the order as to the action on behalf of the decedent's estate, remanding for a new trial.
Can a a decedent's estate recover for the mental anguish a decedent consciously suffered by the apprehension and fear of impending death prior to sustaining fatal injury?
Noting that the right to maintain a wrongful death action was entirely statutory, the court held that the the personal representative could not recover for her own mental anguish, only for pecuniary loss. Similarly, it held, Neb. Rev. Stat. § 30-810 limited a wrongful death recovery to the loss suffered by a decedent's next of kin, preventing the representative from recovering for the decedent's mental anguish. It held, however, that the decedent's estate could recover damages for the mental anguish suffered by the decedent when he became aware of his impending death, writing that there was no sound distinction between these damages and permitting a decedent's estate to recover for a decedent's conscious postinjury pain and suffering and mental anguish.