Nelson v. Myres

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A surviving spouse maintains priority to file a wrongful death action when the decedent’s child has also filed a wrongful death action in which the child alleges that the surviving spouse negligently caused the decedent’s death.The daughter of the decedent in this case filed a wrongful death action alleging that the decedent’s surviving spouse negligently caused the decedent’s death. The surviving spouse also filed a wrongful death action for the decedent’s death. The surviving spouse moved for dismissal of the daughter’s complaint, arguing that the surviving spouse had priority to file a wrongful death action. The trial court agreed and dismissed the daughter’s complaint. The court of appeals reversed, ruling that, under the circumstances of this case, the surviving spouse was disqualified from filing the wrongful death action. The Supreme Court reversed, holding that the trial court properly dismissed the daughter’s wrongful death action because (1) the wrongful death statutes do not include an exception to the rule that surviving spouses have the priority to institute a wrongful death action when a spouse’s alleged negligence caused the decedent’s death; and (2) the surviving spouse did not waive his right to file the wrongful death action under the circumstances of this case. View "Nelson v. Myres" on Justia Law