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Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Flagg v. Loy, 734 P.2d 1183 (Kan. 1987).

This case addresses the following issue:

Does the Wrongful Death Statute create any new cause of action for heirs (inheritors)?

This case explored the issue of whether the Wrongful Death Statute created any new lawsuit for the heirs of the deceased (plaintiffs in this case). In exploring this issue, the court concluded that the statute created no new lawsuit for the heirs, but, instead, provided that the lawsuit survived if it could have been brought by the deceased had she lived. Id. at 1185.

The plaintiffs (children of the deceased) brought a personal injury and wrongful death action against the estate of their deceased father for the death of their mother. Id. at 1184. On January 15, 1985, the mother was a passenger in a car driven by the father. Id. There was a collision involving a semi-tractor trailer truck and the father died in the accident and the mother died from her injuries on February 1, 1985. Id. After the mother’s death, the plaintiffs sued the person responsible for all of the father’s assets. Id. Subsequently, that person filed a motion for summary judgment (judgment in his favor without a trial) based upon the doctrine of interspousal tort immunity (prohibited spouses from suing each other). Id. As a result, the trial court granted the motion and ruled in favor of the deceased father without a trial. Id.

The court determined that the issue before them was whether the doctrine of interspousal tort immunity should be abolished. Id. The plaintiffs argued that an exception should be created where both spouses were deceased. Id. at 1184-85. In response to this argument, the court found a Rhode Island case that created an exception where one or both spouses were deceased. Id. at 1185. In addition, the court recognized exceptions where the crime occurred prior to marriage and where the crime was intentional. Id.

However, the court concluded that they were prevented from making an exception due to the Wrongful Death Statute. Id. The statute stated: “If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting from the wrongful act or omission if the decedent would have maintained the action against the wrongdoer had he or she lived.” Id. The court emphasized, “. . . maintained the action had he or she lived . . . .” Id. Therefore, the statute created no new lawsuit for the heirs but, instead, provided that the lawsuit could have survived had it been brought by the mother had she lived. Id. In this case, the mother could not have maintained a personal injury action against the estate of her husband had she survived the accident because of the doctrine of interspousal tort immunity which prohibited spouses from suing each other. Id. So, without abolishing the doctrine of interspousal tort immunity, the plaintiffs would be prevented from maintaining their action. Id.

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