Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/elder abuse case and its proceedings.)
It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.
PLAINTIFF’S NEGLIGENCE BASED CAUSES OF ACTION ARE SUFFICIENTLY PLED AND SUPPORTED BY FACTUAL ALLEGATIONS
Defendant demurrers to Plaintiff’s cause of action for battery on grounds that (1) plaintiff failed to specifically identify which defendants committed the battery, and that (2) there is not one scintilla of fact or evidence that the defendant intended to cause harm to the decedent.
Plaintiff’s First Cause Of Action For Wrongful Death Is Proper
Defendant’s sole argument in support of demurrer to the first cause of action for wrongful death is that it is “duplicative.” That argument lacks merit. The cause of action for wrongful death is not duplicative simply because it involves the same facts as other causes of action.
Defendant ODA states that there is a single. statutorily created cause of action for wrongful death. (Code Civ. Proc., §377.60 et seq.) CCP section 377.60 simply enumerates those persons who may assert “a cause of action for the death of a person caused by the wrongful act or neglect of another.” That does not mean that there can only be one cause of action that somehow relates to someone’s death. Defendant’s argument has no support in fact or law.
Finally, the injuries and damages set forth in the other causes of action are not duplicative of the wrongful death cause of action. The wrongful death cause of action relates to the “wrongful death of Robert Lee and/or the wrongful hastening of his death.” The other negligence based causes of action include and involve injuries to Plaintiff short of death itself, such as well as additional damages, such as the pain and suffering caused by the conduct of the defendants, the emotional distress damages caused by the conduct of the defendants, etc…
Defendant’s demurrer to the wrongful death cause of action should be overruled. If Plaintiff had simply lumped together everything under one cause of action, then a Defendant who indiscriminately demurs to each and every single cause of action in a complaint would be likely to demur to such a cause of action as being so overbroad as to be uncertain. (See Part 6 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.