Rights Without Remedies: Why Limiting Damages Recoverable by the Decedent Renders the Florida Wrongful Death Act Inconsistent with 42 U.S.C. § 1983

This Article examines in depth the statutory framework of Florida Statute Section 768.16, often referred to by its common name: Florida’s Wrongful Death Act. Specifically, this Article looks to the damages provisions of the Act in an attempt to determine whether Florida’s current system of recovery meets the widely accepted constitutional criteria created through historical jurisprudence. Part I provides a chilling example that lays the foundation for the analysis of exactly how unjust Florida’s current recovery scheme may be for a decedent and his or her survivors. Part 11 provides a look into what a wrongful death act seeks to achieve through a brief historical and constitutional context of tort liability for wrongful death. The relationship between the federal and state statutory framework is outlined, as well as the procedural nature of bringing a wrongful death claim. Part 111 then turns specifically to the Florida Act, detailing its constitutional purpose and construction, subsequent 1972 amendment, and legislative merging of the traditional “swivel” and “wrongful death” causes of action into one avenue of recovery. Specific focus is given to the damages provisions of both the old and new Act, and the practical limitations that such arrangement has placed on plaintiff recovery. The analysis then attempts to parse out those damages recoverable by the decedent’s estate and damages recoverable by eligible survivors, all the while noting the absence of two categories of recoverable damages: (1) pain and suffering of the decedent, himself, and (2) hedonic dam-
ages. Part IV delves into the theoretical motives behind plaintiff recovery via United States Code Section 1983 and the dual policies underlying the cause of action as accepted in today’s caselaw. The concepts of “compensation” and “deterrence” are then applied to Florida’s scheme to determine whether the state framework is inconsistent with the overarching federal policies. Both fictional and actual case hypotheticals are discussed, which lay the backdrop for inpointing inconsistent recoveries, inequitable recoveries, and in one scenario an overall lack of recovery for worthy plaintiffs. Finally, Part V offers some conclusions and recommendations for reworking Florida’s statutory framework to make wrongful death litigation more predictable and fair for potential plaintiffs all the while balancing the interests of the litigants, the demand on the court system, and the economic effects on the public as a whole. The Author proposes specific amended language and offers comparisons to other states’ schemes suggesting ways to better protect potential wrongful death plaintiffs and to help ensure that the means of our constitutional right to recovery are duly met.