September 2007

Wrongful Death Law and Same-Sex Couples

by James E. Baker

A bicentennial event is coming up. Next year, it will be the 200th anniversary of Baker v. Bolton1, an 1808 decision by an English judge, Lord Ellenborough, which stated that “in a civil court, the death of a human being could not be complained of as an injury.”2 “Lord Ellenborough, sitting at nisi prius3 . . . did not cite authority, or give supporting reasoning . . . .”4

The United States Supreme Court stated:

The most likely reason that the English rule [of Baker v. Boulton] was adopted in this country without much question is simply that it had the blessing of age. . . . The American courts never made inquiry whether this particular English rule, bitterly criticized in England, “was applicable to their situation,” and it is difficult to imagine on what basis they might have concluded that it was.5

To mitigate the harsh consequences of the common law, in 1846 England adopted a law known as Lord Campbell’s Act, “which granted recovery to the families of persons killed by tortuous conduct . . . .”6

State legislatures enacted wrongful-death statutes to allow recovery in circumstances as set forth by statute.7 More than 35 years ago, the United States Supreme Court held that there was a common-law cause of action for wrongful death in maritime cases.8

Wrongful-death statutes continue to cause what can only be considered to be unfair results even in situations involving traditional family members. For example, in the state of Washington, if a husband and wife had two children, ages 17 and 18, who were killed in a common accident by a drunk driver who crossed the center line, Washington’s wrongful-death statutes would allow the parents to recover for their loss of consortium with their 17-year-old child but would bar the parents from loss of consortium damages for the death of their 18-year-old child.9

It is expressly stated under Washington law that “causes of action for wrongful death are strictly a matter of legislative grace and are not recognized at common law.”10 (Emphasis added.)

Case law from the state of Washington provides no support for the surviving member of a same-sex couple to recover damages for the wrongful death of his or her partner.

Beginning on July 22, 2007, the state of Washington, as a matter of legislative grace, gave same-sex domestic partners the right to recover for wrongful death provided that the same-sex partners file certain documents with the State Domestic Partnership Registry maintained by the Secretary of State’s Office.11 Section 30 of the domestic partnership law amends RCW 4.20.060 to provide:

No action for a personal injury to any person occasioning death shall abate . . . if such person has a surviving spouse, state registered domestic partner, or child living, including stepchildren . . . .

(Emphasis added.) See also Section 29 of the law which states: “Every such action shall be for the benefit of the wife, husband, state registered domestic partner, child or children, including stepchildren, of the person whose death shall have been so caused.”

Other states have also passed civil-union or domestic-partner laws which allow recovery for wrongful death which otherwise would not have been allowed.12 Two appellate decisions upheld California’s wrongful-death laws for same-sex couples.13

The Commonwealth of Massachusetts does not need a state-registered domestic-partner law to allow one member of a same-sex couple to recover for wrongful death. Such a law is unnecessary under an opinion of the Massachusetts Supreme Court, which held that the state constitution is violated by denying gay and lesbian couples the right to marry.14 In 2004, the Massachusetts Supreme Court ruled that offering civil unions instead of civil marriage did not meet the requirements of its original order.15

Momentum for passing California’s registered-domestic-partners law came from the widely reported death of Diane Whipple, a San Francisco lacrosse coach who, during January 2001, was mauled to death by two large Presa Canario/mastiff dogs in the hallway outside the apartment that she shared with her partner, Sharon Smith. Ms. Smith and Ms. Whipple lived together for seven years. They had a private wedding ceremony, vowed to stay together the rest of their lives, planned to have children together, and held themselves out as a married couple. Ms. Smith brought a wrongful-death lawsuit against the owners of the dog and the owners of the apartment house. A motion to dismiss was filed on the ground that same-sex couples do not have rights under the state’s wrongful-death statutes. In July 2001, a superior court judge ruled that Ms. Smith had a state constitutional right to maintain her wrongful-death action.16 However, there is not an appellate decision on the trial court’s ruling.

Another nationally publicized same-sex wrongful-death case involved the death of Neil Conrad Spicehandler in the state of New York. Mr. Spicehandler and his partner, John Langan, were in their mid-20s when they started living together in 1987. Although they were residents of New York, they went to Vermont in 2000 and had a civil union ceremony by a justice of the peace. They bought a house together in Long Island and planned to adopt children. Within hours after the closing on the couple’s new house, Mr. Spicehandler and more than a dozen other persons were struck by a reckless motorist in Manhattan. Mr. Spicehandler suffered a broken leg and underwent two surgeries at a New York Hospital. Unfortunately, Mr. Spicehandler died in the hospital from a pulmonary embolus. Mr. Langan brought a lawsuit against the motorist and the hospital. The trial court held that Mr. Langan, as the surviving spouse from a same-sex civil union under Vermont law, was entitled to bring a wrongful-death action.17 The case was reversed on appeal.18 The court concluded its opinion by stating: “Any contrary decision, no matter how circumscribed, will be taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature.”19 In a dissent, the dissenting judge stated:

[J]ust as the Supreme Court could find no conceivable rational relationship between any governmental purpose promoted by a wrongful death law and a classification of wrongful death plaintiffs or victims according to their legitimacy, neither can I identify any reasonably conceivable rational basis for classifying similarly-situated wrongful death plaintiffs on the basis of their sexual orientation.

. . . [T]he majority’s rejection of the equal protection claim does not include any hint or suggestion of how preventing the plaintiff from asserting a wrongful death claim promotes the State’s interest in fostering the institution of marriage . . . . Indeed, the only real effect of the majority’s position is to provide a windfall to a potential tortfeasor.20
Before the appeal was dismissed, the lawyer for Mr. Langan was quoted by the Associated Press as stating that if the decision was not reversed, then persons “will be denied . . . protections for no reason other than the fact they are gay.”21

The Langan cases illustrate that there is no guarantee that a domestic partner in the state of Washington will be able to maintain a wrongful-death action if his or her partner is killed outside of the state of Washington.22

There has been extensive litigation as to the application of wrongful-death statutes to traditional family members. It is likely that substantial legal issues that will also arise over Washington’s registered-domestic-partner law in wrongful-death cases.23 
 
James “Jim” E. Baker represents school districts, cities, and counties in tort and employment lawsuits throughout the state of Washington. Before joining the Ephrata law firm of Jerry Moberg & Associates in 2005, he practiced plaintiffs’ personal injury and wrongful death law for 25 years in Yakima, Port Townsend, and Seattle. He can be reached at jamesedyrn@aol.com.

NOTES
 
1. 1 Campbell 493, 170 Eng. Rep. 1033 (1808).
 2. The rule is quoted in numerous cases including Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 227 U.S. 59. 68, 33 S.Ct. 192, 57 L.Ed. 417 (1913) and Philby v. Northern Pac. Railway Co., 46 Wash. 173, 175, 89 P. 468 (1907).
 3. Nisi prius is Latin for “unless before then.” Black’s Law Dictionary (8th ed. 2004). “A civil trial court in which, unlike an appellate court, issues are tried before a jury.” Id.
 4. Moragne, supra at 383. Decisions by Lord Ellenborough have been cited by the U.S. Supreme Court more than 160 times beginning with King v. The Delaware Ins. Co., 6 Cranch 71, 10 U.S. 71, 3 L.Ed. 155 (1810) (case involving insurance on the freight of a sailing ship) and continuing through Torres v. Mullin, 540 U.S. 1035, 124 S.Ct. 562, 157 L.Ed.2d 454 (2003) (Breyer, J., dissenting in a case denying certiorari of an appeal by a Mexican national who was convicted of murder in the state of Oklahoma and sentenced to death). Lord Ellenborough (Nov. 16, 1750–Dec. 13, 1818), whose real name was Edward Law, was a Member of Parliament before succeeding Lord Kenyon as Lord Chief Justice of the King’s Bench. For a biography on Lord Ellenborough,
see Imiah, Albert H., Lord Ellenborough: A Biography of Edward Law, Earl of Ellenborough, Governor-General of India (Harvard Univ. Press 1939). Some credit Lord Ellenborough with the old maxim of criminal libel law: “The greater the truth, the greater the libel.” GIGA Quotes (accessed at www.giga-usa.com/quotes/authors/edward_law_a001.htm); Answers.com (accessed at answers.com/topic/-ellenborough-lord). “Lord Mansfield is usually credited with coining the infamous maxim . . . .” Ray, Roy Robert. “Truth: A Defense to Libel, “16 Minn. L.Rev. 43, 43 n. 1 (1931-32) and Townshend, John, “Slander and Libel” Sec. 211 (4th ed. 1890), cited in Doe v. Methodist Hospital, 690 N.E.2d 681, 687 (Ind. 1997).
 5. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 386, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).
 6. Id. at 389. Lord Campbell’s Act was codified at 9 & 10 Vict., c. 93 (1846).
 7. Id. at 390. “[Lord Campbell’s Act] has been, in its distinguishing features, re-enacted in many of the states . . . .” Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 68, 33 S.Ct. 192, 57 L.Ed. 417 (1913). The act “has served as the model for similar acts in most of the states in this country.” Tiffany, F., “Death by Wrongful Act” 5 (2d ed. 1913), quoted at Levy v. State of Louisiana, 391 U.S. 73, 76, 88 S.Ct. 1509, 1512, 20 L.Ed.2d 444 (1968) (Harlan, J., dissenting).
 8. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), overruling The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886).
 9. See, e.g., Philippides v. Bernard, 151 Wn.2d 376, 88 P.3d 939 (2004) (parents barred from recovering loss of consortium damages in connection with the death of their 22-year-old unmarried son unless the parents could prove that they were dependent upon their child for financial support, not just dependent on their child’s love).
 10. Tait v. Wahl, 97 Wn.App. 765, 771, 987 P.2d 127, 130 (1999), cited in Philippides v. Bernard, 151 Wn.2d 376, 390, 88 P.3d 939, 88 P. 3d 939, 946 (2004).
 11. 2007 Ch. 156 — SSB 5336.
 12. These states include California, Connecticut, Hawaii, Maine, New Jersey, and Vermont. “Same-sex Marriage: Developments in the Law: The Same-sex Marriage Battle Intensifies: A History of the Law and the Latest News” (accessed at www.print.family.findlaw.com/same-sex-couples/same-sex-marriage-developments(1).html).
 13. Bouley v. Long Beach Memorial Medical Center, 127 Cal.App.4th 601, 25 Cal. Rptr.3d 813 (2005) (upholding AB 25 for registered domestic partners) and Armijo v. Miles, 127 Cal.App.4th 1405, 26 Cal. Rptr.3d 623 (2005) (upholding AB 2580 for certain unregistered domestic partners).
 14. Goodridge v. Dept. of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003), which held that the state constitution is violated by denying gay and lesbian couples the right to marry. In a 5-4 opinion, the Washington State Supreme Court held that the legislature in this state is not constitutionally prohibited from defining marriage as a civil union between a man and a woman to the exclusion of same-sex couples. Anderson v. King County, 158 Wn.2d 1, 138 P.3d 963 (2006).
 15. Supra at n. 12.
 16. See generally Gallagher, John , “A Ruling in a Wrongful Death Suit Marks a Trend Toward Judicial Recognition of Gay Relationships,” The Advocate (Sept. 11, 2001) (accessed at www.findarticles.com/p/articles/mi_m1589/is_2001_Sept_11/ai_78265976); Minter, Shannon, “Expanding Wrongful Death Statutes and Other Death Benefits to Same-sex Partners,” Human Rights Magazine (ABA Sec. of Individual Rights and Responsibilities (summer 2003) (accessed at www.abanet.org/irr/hr/summer03/expanding.html); Hartlaub, Peter, “Same-sex Partner Can Sue for Damages: Wrongful-death Claim in Dog-mauling Case,” SF Gate (July 28, 2001) (accessed at www.sfgate.com/-cgi.-bin/article.cgi?file=/c/a/2001/07/28/MN166946.DTL&type=printable); Press Release, “Sharon Smith Settles Lawsuit with Building Owners in Wrongful Death Suit,” Nat’l Center for Lesbian Rights (Dec. 20, 2002) (accessed at www.nclrights.org/releases/ssmith122002.htm); Steinhaus, Rochelle, “Whipple’s legacy,” Court TV News (Feb. 15, 2002) (accessed at www.courttv.com/trials/-dogmaul/background-e_whipple.html).
 17. Langan v. St. Vincent’s Hospital of N.Y., 196 Misc.2d 440, 765 N.Y.S.2d 411 (N.Y.Sup.Ct. 2003).
 18. Langan v. St. Vincent’s Hospital of N.Y., 25 A.D.3d 90, 802 N.Y.S.2d 476 (N.Y.App.Div. 2005).
19. 802 N.Y.S.2d at 480. The opinion “disappointed GLBT advocates by reversing a much-heralded victory for same-sex couples.” Rostow, Ann, “New York State of Mind,” San Francisco Bay Times (Oct. 20, 2005) (accessed at www.sfbaytimes.comindex/php?sec=article&article_id=4198). See also Viscarra, Jeniffer, “Langan v. St. Vincent Hospital: A Fearful Court or a Properly Measured Response?,” 13 Cardozo J.L. & Gender 439 (2007); Xin Zhu, Ann, “Same-sex Marriages in New York: the Langan and Hernandez Decisions,” 14 Buff. Women’s L.J. 1 (2006); Harris, Cristin, “Langan v. St. Vincent’s Hospital of New York (decided October 11, 2005),” 22 Touro L.Rev. 147 (2006); and “Civil-union Partner Can’t Sue Hospital for Wrongful Death,” 1 West’s Medical Malpractice Law Report 2 (2005).
 20. 802 N.Y.S. at 490.
 21. “Lack of Gay Marriage Benefits Denies Gay Men Wrongful Death Lawsuit” (accessed at www.gaylife.about.com/b/a/210565.htm), quoting Aronson, Adam, attorney for appellant. The appeal is now final. Langan v. St. Vincent’s Hospital of New York, 25 A.D.3d 90, 802 N.Y.S.2d 476 (May 2, 2006) (appeal dismissed). See generally Grossman, Joanna, “Should a Surviving ‘Spouse’ in a Same-sex Couple be Permitted to Sue for Wrongful Death?” (Feb. 25, 2003) (accessed at www.writ.news.findlaw.com/grossman/20030225.html); LaPadula, Phil , “Gays at Disadvantage in Malpractice Cases: State Laws Often Leave Partners With No Legal Recourse,” Washington Blade (Jan. 13, 2006) (accessed at www.washblade.com/2006/1-13/news/national/-malpractice.cfm).
 22. Legal issues also arise from the Commonweath of Massachusetts’s same-sex marriage law in connection with nonresidents seeking marriage licenses in the Commonwealth of Massachusetts. See, e.g., Cote-Whitaker v. Dept. of Health, 446 Mass. 350, 844 N.E.2d 623 (2006) (those couples who resided in states where same-sex marriage was not expressly prohibited were entitled to proceed to trial, on an expedited basis, to present evidence to rebut the Commonwealth’s claim that their home states would prohibit same-sex marriages).
 23. For further discussion of legal issues raised by same-sex relationships, see, e.g. Riggs, Robert E., “The Supreme Court and Same-sex Marriage: A Prediction,” 20 B.Y.U. J. Pub. L. 345 (2006); Gardina, Jackie, “The Perfect Storm: Bankruptcy, Choice of Law and Same-sex Marriage,” 86 B.U. L.Rev. 881 (2006); Duncan, William C., “Survey of Interstate Recognition of Quasi-marital Statuses,” 3 Ave Maria L.Rev. 617 (2005); Annot., “Validity of Legal Claim Predicated on Nonmarital Same-sex Relationship,” 8 A.L.R. 6th 339 (2005); Annot., “Marriage Between Persons of Same Sex: United States and Canadian Cases,” 1 A.L.R. Fed.2d 1 (2005); Sylvest, Flynn, “New Tort Rules for Unmarried Partners: The Enhanced Potential for Successful Loss of Consortium and NIED Claims by Same Sex Partners in New Mexico after Lozoya,” 34 N.M. L.Rev. 461 (2004); Berall, Frank S., “Legal and Tax Status of Persons in Connecticut Civil Unions and Other Unmarried Cohabitants,” 78 Conn. B.J. 261 (2004). See generally Annot., “Modern Status of Rule Denying a Common-law Recovery for Wrongful Death,” 61 A.L.R. 3d 906 (1975 & Supp. 2006).