Weigel v. Lee

2008 ND 147, 752 N.W.2d 618



Survival statutes are remedial in nature, and are intended to permit recovery by the representatives of the deceased for damages the deceased could have recovered had he lived. A survival action merely continues in existence an injured person's claim after death as an asset of his estate.


Appellant children filed an action under the North Dakota Wrongful Death Act, N.D. Cent. Code ch. 32-21, against appellee hospital and doctor after the death of appellants’ mother. Appellants sought non-economic damages. The district court determined that such non-economic damages were not available to appellants under the Act. Appellants sought review of the district court’s judgment, which dismissed appellant’s wrongful death claims against appellees. The appellate court reversed the district court's judgment and remanded for further proceedings.


Were decedent's surviving children eligible to bring a wrongful death and entitled to damages under state law?




Not only were appellants eligible to bring a wrongful death action under N.D. Cent. Code § 32-21-03(2), appellants were also entitled to damages under N.D. Cent. Code § 32-21-04 as heirs at law of their mother. Wrongful death actions were intended to compensate the survivors of the deceased for the losses the survivors sustained as a result of a wrongful killing. Damages under the wrongful death act were based on the loss suffered by the beneficiaries and could include non-economic damages pursuant to N.D. Cent. Code § 32-03.2-04.

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