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Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25

Facts

On June 22, 1984, decedent Robert James Nelson was involved in a collision with an automobile driven by Paul J. Dolan while riding his motorcycle. Nelson and his friend, Kevin Coffin, had just left a fight and were attempting to evade Dolan's vehicle, which was following closely. After a high-speed chase, Dolan's car collided with Nelson's motorcycle, causing both vehicles to lock together and travel for approximately 268 feet before Nelson was crushed and killed when the motorcycle struck a light post. The personal representative of Nelson's estate sought to introduce evidence of the mental anguish suffered by both the decedent and his next-of-kin, which the court ultimately ruled inadmissible.

A collision occurred in the early morning hours of June 22, 1984, between an automobile operated by Dolan and a motorcycle driven by the 17–year–old decedent Nelson, and on which the latter's friend, Kevin Coffin, was riding as a passenger.

Issue

Whether the next-of-kin can recover for mental anguish in a wrongful death action and whether the decedent's estate can recover for the mental anguish suffered by the decedent prior to death.

The right to maintain a wrongful death action does not exist at common law and thus exists solely by virtue of legislative enactment.

Rule

The right to maintain a wrongful death action exists solely by legislative enactment, and damages recoverable are limited to pecuniary loss, excluding mental suffering or bereavement. However, conscious prefatal-injury fear and apprehension of impending death can survive the decedent's death and benefit the estate.

The damages recoverable, the disposition of the avails obtained, and the measure of recovery in a wrongful death action are all fixed by statute.

Analysis

The court analyzed the statutory framework governing wrongful death actions and determined that while next-of-kin cannot recover for mental anguish, the estate may recover for the decedent's conscious fear of impending death. The court found that the evidence presented could allow a jury to conclude that Nelson was aware of his impending death during the brief period before the fatal impact, thus supporting the estate's claim for damages.

The personal representative's treating physician offered to testify that he thought she suffered from endogenous depression and acute anxiety caused in part by the loss of the decedent Nelson, who was her son.

Conclusion

The court affirmed the district court's judgment regarding the wrongful death action but reversed and remanded for a new trial concerning the estate's claim for mental anguish suffered by the decedent.

We must therefore conclude that the record sustains the personal representative's second assignment of error.

Who won?

Phyllis F. Nelson, personal representative of the estate of Robert James Nelson, prevailed in the wrongful death action as the jury found in her favor, but the court reversed the ruling on the estate's claim for mental anguish, allowing for a new trial.

The jury thus returned a verdict in favor of the plaintiff-appellant, Phyllis F. Nelson, personal representative of the estate of the aforenamed decedent, and judgment was rendered accordingly in the total sum of $37,968.26.

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