Ark. Code Ann. § 16-62-102

Research References

Ark. L. Rev.

Negligence — Wrongful Death — Statute of Limitation, 15 Ark. L. Rev. 424.

Torts — Wrongful Death — Death from Prenatal Injuries, 17 Ark. L. Rev. 203.

Arkansas Model Jury Instructions: Wrongful Death, 20 Ark. L. Rev. 73.

Comment, The Arkansas Wrongful Death Statute, 35 Ark. L. Rev. 294.

Case Note, Simmons First National Bank v. Abbott: The Arkansas Wrongful Death Statute, etc., 40 Ark. L. Rev. 421.

Allowing Fetal Wrongful Death Actions in Arkansas: A Death Whose Time Has Come?, 44 Ark. L. Rev. 465.

Recent Developments, 49 Ark. L. Rev. 419.

Wrongful Death Damages Under the Arkansas Medical Malpractice Act: Would a Change Make Cents?, 54 Ark. L. Rev. 577 (2001).

Note, The Measure of Life: Determining the Value of Lost Years After Durham v. Marberry, 59 Ark. L. Rev. 125.

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 4 U. Ark. Little Rock L.J. 581.

Arkansas Law Survey, Saunders, Torts, 7 U. Ark. Little Rock L.J. 259.

Arkansas Law Survey, Looney, Decedents' Estates, 8 U. Ark. Little Rock L.J. 139.

Survey — Civil Procedure, 11 U. Ark. Little Rock L.J. 137.

Survey — Torts, 11 U. Ark. Little Rock L.J. 261.

Survey, Torts, 13 U. Ark. Little Rock L.J. 409.

Legislative Survey, Miscellaneous, 16 U. Ark. Little Rock L.J. 161.

Note, A Viable Fetus is Not a “Person” Under the Arkansas Wrongful Death Statute, 19 U. Ark. Little Rock L.J. 307.

Torts-Wrongful Death-The Birth of Fetal Rights Under Arkansas's Wrongful Death Statute: The Arkansas Supreme Court Recognizes a Fetus as a “Person.” Aka v. Jefferson Hospital Ass'n, 344 Ark. 627, 42 S.W.3d 508 (2001), 24 U. Ark. Little Rock L. Rev. 359.

Annual Survey of Caselaw, Tort Law, 24 U. Ark. Little Rock L. Rev. 1085.

Case Notes

Constitutionality.

This section does not violate Ark. Const., Art. 2, § 13. Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), overruled, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), overruled in part, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), superseded by statute as stated in, Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).

Construction.

An historical distinction has been built into the wrongful death legislation between the proceeding to determine the apportionment of the award and the proceeding to determine the liability and computation of damages recoverable from the tortfeasor, which distinction is preserved in the scheme of this section; the issue of fixing the amount of damages is dealt with in subsection (f) and the issue of fixing the shares of the statutory beneficiaries in that award is dealt with in subsection (g). Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994).

If the defendant is deceased, the three-year limit on wrongful death actions provided by subdivision (c)(1) of this section may be shortened by § 28-50-101(a). Callaghan v. Coberly, 927 F. Supp. 332 (W.D. Ark. 1996).

A wrongful-death action brought by a plaintiff in his individual capacity pursuant to this section involves neither the same action nor the same plaintiff as a survival action brought by the plaintiff in his representative capacity on behalf of the decedent's estate pursuant to § 16-62-101. Murrell v. Springdale Mem. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997).

Two-year limitations period of Medical Malpractice Act, § 16-114-201 et seq., conflicts with the three-year limitations period provided under subsection (c) of this section and is therefore controlling where death ensues from medical injuries. Davis v. Parham, 362 Ark. 352, 208 S.W.3d 162 (2005).

Applicability.

Where the alleged cause of the decedent's death was a medical injury, the two-year statute of limitations provided by § 16-114-203, rather than the three-year statute of limitations in this section, is applicable. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997), overruled in part, Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49 (2013).

Rejection of the husband's claim that he had a curtesy interest in a settlement award involving his deceased wife was appropriate because the wife never possessed a chose in action since there was no cause of action for wrongful death created in any individual beneficiary under this section, the wrongful-death statute. Bridges v. Shields, 2011 Ark. 448, 385 S.W.3d 176 (2011).

Admiralty.

The right of action given by former, similar section may be enforced in admiralty. Monongahela River Consol. Coal & Coke Co. v. Schinnerer, 196 F. 375 (6th Cir. 1912) (decision under prior law).

Apportionment.

The factors set forth in subsection (f) of this section also guide the probate court's determination of the apportionment of the settlement proceeds under subsection (g), in those cases where the damages issue was not tried. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994).

The evidence supported the probate court's apportionment order, where the probate court's 50/50 apportionment of the remaining proceeds between appellant and the minors roughly approximated the apportionment of their economic losses (52% to appellant and 48% to the minors), and the court clearly considered both this evidence and the compensable elements enumerated in this section. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994).

In an action arising from a fatal motor vehicle collision which resulted in an award of damages apportioned by the jury among family members of the decedent, two awards were reversed where the recipients did not testify at trial and no other witnesses presented evidence of mental anguish on the part of either of them. New Prospect Drilling Co. v. First Com. Trust, 332 Ark. 466, 966 S.W.2d 233 (1998).

Under subsections (g) and (h), it was clear that the probate court had the authority to approve a wrongful death settlement and also to apportion and distribute the proceeds. Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), US Supreme Court cert. denied, Bates v. Arkansas, 526 U.S. 1064, 119 S. Ct. 1454, 143 L. Ed. 2d 541 (1999).

Attorneys' Fees.

A beneficiary's attorney is not entitled to fees on a portion of wrongful death proceeds attributable to the beneficiary, and a probate court has no jurisdiction to award attorneys' fees for services rendered to an individual beneficiary. Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

Beneficiaries.

An action for the benefit of the estate and one for the widow may be joined. Tillar v. Reynolds, 96 Ark. 358, 131 S.W. 969 (1910); Southern Anthracite Coal Co. v. Hodge, 99 Ark. 302, 139 S.W. 292 (1911) (preceding decisions under prior law).

The administrator may recover for the conscious suffering of a deceased infant, and it is no defense, that the father, being sole distributee, was guilty of contributory negligence. Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301 (1911) (decision under prior law).

The administrator of a deceased minor is entitled to recover all damages for a wrongful death, both for the benefit of his estate and the next of kin. Southwestern Gas & Elec. Co. v. Godfrey, 178 Ark. 103, 10 S.W.2d 894 (1928)Questioned byWheaton Van Lines, Inc. v. Williams, 240 Ark. 280, 399 S.W.2d 258 (1966) (decision under prior law).

Where widow received payment of judgment for her husband's death for the benefit of herself and next of kin, widow was entitled to only one-third of the amount received and she held the balance in trust for her children; the adult children being entitled to their share on demand. Moseley v. Beard, 203 Ark. 731, 158 S.W.2d 917 (1942) (decision under prior law).

Where grandparents stood in loco parentis to their nine-year-old grandson, an award for mental anguish because of the death of the grandson was not improper. Bockman v. Butler, 226 Ark. 159, 288 S.W.2d 597 (1956) (decision under prior law).

Any recovery in action by administratrix for wrongful death of deceased would be for the benefit of deceased's next of kin. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Damages recovered do not become a part of the general assets of the estate and are not subject to debts of the estate but are recovered in trust for the beneficiaries named herein. Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961).

A step-daughter was one to whom the deceased stood in loco parentis within the meaning of this section. Moon Distribs., Inc. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968).

Section 9-9-215 specifically says that, in construing statutes, the court shall recognize that there is no legal relationship existing between an natural parent whose child has been adopted by another; the child of a natural father adopted by another, was not one of the beneficiaries which this section authorized to recover for the wrongful death of the decedent. Webb v. Harvell, 563 F. Supp. 172 (W.D. Ark. 1983).

Whether a decedent stood in the position of in loco parentis to a person is to be determined by the intent of the parties. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).

The fact that step-son lived with his mother and decedent for a little over 15 months was not enough to establish that decedent had formed the intent to assume the duties and benefits of becoming step-son's father. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).

A step-son was not one to whom the deceased stood in loco parentis within the meaning of this section where nothing in the record indicated that the deceased had formed the intent to assume the duties and benefits of becoming step-son's father. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).

Where defendant's sole claim to the proceeds of wrongful death award was as decedent's surviving spouse, and where because of the invalidity of her marriage to decedent, she was not his surviving spouse, she thus could not share in the proceeds of the settlement. Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991).

Under the Arkansas wrongful death statute, a corporation cannot recover for the loss of an employee's services because a decedent's employer is not an enumerated beneficiary. Lusby v. Union Pac. R.R., 4 F.3d 639 (8th Cir. 1993).

Children who are not living at the time of the deceased person's death are not among the statutory beneficiaries, and neither are the deceased children's heirs at law, therefore, the definition of “children” as used in subsection (d) of this section does not include the descendants of those children of the deceased who predeceased the deceased. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000).

Circuit court erred in denying defendants' motion to compel arbitration in a wrongful death action brought on behalf of a nursing home resident's beneficiaries because under subdivision (a)(1) of this section, the wrongful-death beneficiaries were bound by the arbitration agreement executed by the nursing home resident. Searcy Healthcare Ctr., LLC v. Murphy, 2013 Ark. 463 (2013).

Trial court correctly determined that a decedent's stepchildren were not beneficiaries of a wrongful-death settlement as that term was defined in the statute; at no time did the decedent assume the role or responsibilities of a parent with regard to either stepchild and, as such, the relationship between the stepchildren and the decedent never rose to the level of in loco parentis. Zulpo v. Blann, 2013 Ark. App. 750 (2013).

It was unnecessary to determine whether the decedent's daughter was a beneficiary of the wrongful-death action because the jury absolved the doctor of negligence. Hartman v. Edwards, 2014 Ark. App. 480, 442 S.W.3d 13 (2014).

Collateral Source Rule.

Although the collateral source rule was held not applicable to a proceeding for distribution of settlement funds, it still applies in the context of a proceeding to determine the liability and damages recoverable from the wrongdoer. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994).

Where the amount of damages was reached by compromise agreement and was finalized prior to the commencement of the apportionment proceeding, subsection (f) did not apply. Bell v. Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994).

Complaint.

If the complaint fails to show that there is no administrator, the defect may be supplied by proof. Saint Louis, I.M. & S. Ry. v. Hutchinson, 101 Ark. 424, 142 S.W. 527 (1912) (decision under prior law).

Dismissal of wrongful death action was proper where personal representatives of estate filed complaint pro se, which constituted the unauthorized practice of law rendering the complaint a nullity, and where the two-year statute of limitations had expired. Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002).

Widower failed to meet the requirements of subsection (b) of this section because he had not been appointed executor at the time he originally filed the complaint; therefore, he lacked standing to pursue the action, the original complaint was a nullity, and the subsequent appointment of the widower as executor did not relate back to the filing of the original complaint. McKibben v. Mullis, 79 Ark. App. 382, 90 S.W.3d 442 (2002).

Although plaintiff lacked standing to sue when she filed the original complaint because she had not yet been appointed the administrator of decedent's estate and she was not the sole heir, upon being appointed administrator six days later, she was deemed to be a new party when she filed the timely amended complaint; the original complaint remained a document setting out allegations satisfying the fact-pleading requirements for a complaint set out in Ark. R. Civ. P. 8(a) and the facts pled in the original complaint were adopted by reference under Ark. R. Civ. P. 10(c) into the amended complaint. Hackelton v. Malloy, 364 Ark. 469, 221 S.W.3d 353 (2006).

District court did not abuse its discretion in denying a motion to amend the complaint filed by plaintiff, the decedent's daughter, pursuant to Fed. R. Civ. P. 15(a), in a wrongful death action where the daughter, who at the time she filed the original complaint was not yet the personal representative of the estate and the heirs were not named as parties in the complaint, lacked standing to sue; the complaint amounted to a nullity and could not serve as the foundation for an amendment.Williams v. Bradshaw, 459 F.3d 846 (8th Cir. 2006).

Conflict of Laws.

The fact that the laws of distribution in this state and those of the state where the death occurred are different is no defense to an action brought in this state. Midland V. R. Co. v. Le Moyne, 104 Ark. 327, 148 S.W. 654 (1912) (decision under prior law).

District court erred in applying Arkansas law as a basis for dismissing plaintiff's suit seeking relief for the alleged impairment of its hospital lien by a decedent's estate that had settled a wrongful death claim without paying the decedent's medical bills, because Arkansas's interest did not outweigh concerns about forum shopping and maintenance of interstate order that favored the application of Tennessee law to plaintiff's lien impairment claim. Shelby Cnty. Health Care Corp. v. Southern Farm Bureau Cas. Ins. Co., 855 F.3d 836 (8th Cir.), cert. denied, 138 S. Ct. 473, 199 L. Ed. 2d 358 (U.S. 2017).

Damages.

The loss to minor children of the instruction and the physical, moral, and intellectual training by a parent is an element to be considered in estimating damages to children by reason of parents' wrongful death, and each child is entitled to recover the amount of pecuniary loss sustained by the child. Saint Louis, I.M. & S. Ry. v. Prince, 101 Ark. 315, 142 S.W. 499 (1911) (decision under prior law).

Where the wrongful act of another deprives the husband of the services or companionship of his wife, he is entitled to compensation therefor. Graysonia-Nashville Lumber Co. v. Carroll, 102 Ark. 460, 144 S.W. 519 (1912) (decision under prior law).

The widow and children of one negligently killed are not entitled to damages for his pain and suffering but only to damages for the loss of his comfort and support. Hines v. Betts, 146 Ark. 555, 226 S.W. 165 (1920); Webb v. Waters, 154 Ark. 547, 243 S.W. 846 (1922) (preceding decisions under prior law).

In an action by a parent for the negligent killing of a child, the damages awarded must be founded on pecuniary loss, actual or expected, and mere injury to feelings cannot be considered. Interurban Ry. v. Trainer, 150 Ark. 19, 233 S.W. 816 (1921)Questioned byBeaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark. 1959) (decision under prior law).

Parents sought damages for the death of their adult son and it was held that contributions by the son to the father were admissible in evidence without proof of financial dependency. Washburn v. Douthit, 73 F.2d 23 (8th Cir. 1934) (decision under prior law).

Instruction authorizing recovery of damages by a parent for death of child in such sum as he would have contributed to his parents after reaching majority was held erroneous. Davis v. Gillin, 188 Ark. 523, 66 S.W.2d 1057 (1934) (decision under prior law).

In death action by administrator, instruction as to measure of damages should have distinguished between cause of action for the benefit of widow and next of kin for pecuniary loss to them and cause of action to the estate for damages suffered by the deceased prior to his death. Clift v. Jordan, 205 Ark. 245, 168 S.W.2d 403 (1943) (decision under prior law).

In action to recover for death of plaintiff's husband, instruction authorizing jury to include in their verdict, as an element of damages, loss of consortium and companionship amounted to an erroneous declaration as to measure of damages, but, when raised for first time in the motion for new trial, cannot be considered on appeal. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

To prove loss of future earnings due to impairment of earning power of the deceased at the time of the accident and death, evidence as to prior earnings is not necessarily confined to the immediate time prior to the accident. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

Recovery for benefit of children should be limited to the present worth of sums which would be contributed by the parent prior to their majority. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

The pecuniary value of the loss of future earnings of the deceased is a factor to be considered in determining the loss of the financial aid to the widow and children. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

Temporary employment, and the higher wages paid thereon, considered alone, would not be a proper test to furnish a fair and general measure of his earning capacity. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

In estimating damage resulting from loss or impairment of earning capacity, the reasonable and dependable probabilities, looking through all that may happen and for all the year for which the computation is to be made, and viewed according to the general experiences and observations of life, are the elements which are to guide to a fair and acceptable result. Missouri P.R.R. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944) (decision under prior law).

There is nothing in this section which limits a child's recovery for pecuniary loss, arising from the wrongful death of a parent, to the period of his minority. Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291 (1959).

Since the right to recover damages for pecuniary loss beyond the minority of the beneficiaries depends upon the circumstances, where it is clear that deceased would have contributed to the education of his two sons even after they had attained their majority, the sons are entitled to damages for pecuniary loss beyond their minority. Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291 (1959).

The term “pecuniary injuries” as used in this section is not limited to the present value of the financial support that a child would receive from his mother during his minority, but includes also compensation for the loss of parental love, care, supervision, and training. Bridges v. Stephens, 238 Ark. 801, 384 S.W.2d 490 (1964).

Award for the death of the mother of an illegitimate child dependent upon the mother not only for pecuniary support, but also for the loving care that a child ordinarily receives from both parents, found not excessive. Bridges v. Stephens, 238 Ark. 801, 384 S.W.2d 490 (1964).

This section does not limit the recovery of one to whom the deceased stood in loco parentis to damages for mental anguish to the exclusion of damages for pecuniary loss. Moon Distribs., Inc. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968).

Since this section limits the class of beneficiaries who can recover compensatory damages for pecuniary loss to the surviving spouse and next of kin of the deceased, and the relationship of brother to the deceased was not analogous to next of kin; instruction that permitted jury to compensate brother for such pecuniary loss was error. Vickers v. Gifford-Hill & Co., 534 F.2d 1311 (8th Cir. 1976).

Where the adult sons were financially independent, and the decedent had no legal obligation to support the adult sons, and where the sons had not truly demonstrated that they suffered greater than normal grief due to the loss of their father, the court correctly directed a verdict in favor of defendants. Dobson v. Bacon Transp. Co., 607 F.2d 805 (8th Cir. 1979).

Where the testimony of the surviving husband of a woman killed in an automobile accident concerning his mental anguish was sufficient in itself to support the amount which the probate court apportioned to him, the award for mental anguish was proper, even though the court awarded the husband one-third of the wrongful death action recovery and referred to a “curtesy amount” since the evidence showed that the court did not determine his share arbitrarily and without reference to the evidence. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981).

Evidence sufficient to justify an award of punitive damages. Brown v. Missouri Pac. R.R., 543 F. Supp. 348 (W.D. Ark. 1982), aff'd, 703 F.2d 1050 (8th Cir. 1983).

The laws of this state do not preclude the allowance of punitive damages in a wrongful death action, at least where the award of punitive damages is simply an incident of the action for personal injuries that the decedent would have had if he had lived. Brown v. Missouri Pac. R.R., 703 F.2d 1050 (8th Cir. 1983).

For discussion of amount of damages to be awarded for compensatory damages, pecuniary injuries, mental anguish, conscious pain and suffering, loss of services and loss of consortium to survivors of victims of an explosion, see Lowe v. United States, 662 F. Supp. 1089 (W.D. Ark. 1987).

Finding in favor of the spouse that a pharmacist incorrectly filled the decedent's prescription resulting in his death was proper and an award of $125,000 to the decedent's daughter for mental anguish was acceptable because subdivision (f)(2) of this section included grief normally associated with the loss of a loved one. Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).

Jurisdiction.

The probate court does not have jurisdiction to resolve the paternity of a child in order to determine whether the child can share in the proceeds of a wrongful death settlement. Rager v. Turley, 342 Ark. 223, 27 S.W.3d 729 (2000).

Denial of doctor's petition seeking a writ of prohibition to prevent circuit court from proceeding with a wrongful-death action was proper where the circuit court was not wholly without jurisdiction; furthermore, the court could not treat the petition as one for certiorari because the case simply did not present a situation where the remedy by appeal was inadequate. Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003).

—Mental Anguish.

Mental anguish, to warrant recovery of damages therefore, must be real and with cause and must have resulted proximately and naturally from conduct or event which gives rise to the right of recovery, and an award must be reasonable in light of all relevant factors disclosed by the evidence. Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark. 1959).

The principles laid down by the Supreme Court in the cases decided under § 23-17-112(a) are applicable to mental anguish claims arising under this section. Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark. 1959).

Award to children was reasonable compensation for mental anguish suffered by them because of wrongful death of father. Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark. 1959).

It was the intention of the legislature to allow recovery for mental anguish under this section. Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), overruled, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), overruled in part, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), superseded by statute as stated in, Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003).

In order to recover for mental anguish under this section, one must suffer more than normal grief. Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), overruled, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), overruled in part, Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), superseded by statute as stated in, Wal-Mart Stores, Inc. v. Tucker, 353 Ark. 730, 120 S.W.3d 61 (2003); Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968).

A verdict for mental anguish suffered by parents because of death of their daughter was not so grossly excessive as to shock conscience of court. Tiner v. Tiner, 238 Ark. 222, 379 S.W.2d 425 (1964).

Where the decedent was survived by his mother and several brothers and sisters, the brothers and sisters could recover for mental anguish caused by the wrongful death even though they were not heirs at law. Fountain v. Chicago, Rock Island & Pac. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968).

In wrongful death action, factors to be considered in evaluating mental anguish are the duration and intensity of the sorrow and grief, the attitude of the decedent toward the survivor, the attitude of the survivor toward the decedent, the duration and intimacy of the relationship, and ties of affection between decedent and survivor, and the violence and suddenness of the death. St. Louis Sw. Ry. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977).

Mental anguish in wrongful death actions will vary in every case according to the nervous temperament of the individual, his ability to withstand shock, sex, circumstances, and position in life. St. Louis Sw. Ry. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977).

Among the circumstances to be considered in determining the extent and compensability of mental anguish are the closeness of the relationship of the survivors with the deceased, the probable life expectancy of the deceased and survivors, the nature of the death, and the physical and mental impact on the survivors. Dugal v. Commercial Std. Ins. Co., 456 F. Supp. 290 (W.D. Ark. 1978).

Damages under this section may include compensation for mental anguish occasioned by a death, provided that the survivors suffer more than normal grief. Dugal v. Commercial Std. Ins. Co., 456 F. Supp. 290 (W.D. Ark. 1978).

The legislature vested the cause of action for damages for mental anguish in the personal representative, but with the recovery apportionable among the individual beneficiaries, so that all claims arising from a wrongful death can be asserted and settled in one suit and there was no reason to recognize a duplicate cause of action in the decedent's mother as an individual. Waldrip v. McGarity, 270 Ark. 305, 605 S.W.2d 5 (1980).

The award to each beneficiary for mental anguish for wrongful death is to be determined on an individual basis. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981).

Evidence was sufficient in itself to support the amount which the probate court apportioned to him; award for mental anguish was proper, even though the court awarded the husband one-third of the wrongful death action recovery and referred to a “curtesy amount,” since the evidence showed that the court did not determine his share arbitrarily and without reference to the evidence. Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981).

The proximity of relationship between the deceased and the survivors is the most significant factor in determining whether recovery for mental anguish is allowable; distant relatives generally have no more than normal grief and will not be allowed to recover without establishing something more. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986).

The suddenness and violent nature of the death is not sufficient, standing alone, to support an award of damages for mental anguish. Mental anguish must be real and with cause and be more than the normal grief occasioned by the loss of a loved one. Lowe v. United States, 662 F. Supp. 1089 (W.D. Ark. 1987).

Factors utilized in evaluating awards for mental anguish in wrongful death cases are: (1) the duration and intimacy of their relationship and the ties of affection between the decedent and the survivor; (2) frequency of association and communication between an adult survivor and an adult decedent; (3) the attitude of the decedent toward the suvivor and of the survivor toward the decedent; (4) the duration and intensity of the sorrow; (5) maturity or immaturity of the survivor; (6) the violence or suddenness of the death; (7) sleeplessness or troubled sleep over an extended period; (8) obvious extreme or unusual nervous reaction to the death; (9) crying spells over an extended period of time; (10) adverse effect on survivor's work or school; (11) change of personality of the survivor; (12) loss of weight by survivor or other physical symptoms; and (13) age and life expectancy of the decedent. Lowe v. United States, 662 F. Supp. 1089 (W.D. Ark. 1987).

—Punitive Damages.

The estate and children of decedent could recover punitive damages in wrongful death action brought under this section since Arkansas courts have allowed punitive damages where the action is grounded in the wrongful death or survival statutes. Fields v. Huff, 510 F. Supp. 238 (E.D. Ark. 1981).

Punitive damages are recoverable in wrongful death actions. The surviving beneficiaries of the decedent, killed as a result of willful and wanton tortious conduct, are entitled to recover those punitive damages the decedent would have recovered had he or she lived. Vickery v. Ballentine, 293 Ark. 54, 732 S.W.2d 160 (1987).

The purpose of punitive damages is not to compensate the injured party but to impose a monetary penalty on the defendant and to discourage others from similar behavior. That purpose is unquestionably the same whether the injured person lives or dies as a result of defendant's willful or wanton conduct. Vickery v. Ballentine, 293 Ark. 54, 732 S.W.2d 160 (1987).

Medical Malpractice.

The limitations period provided under § 16-114-203 conflicts with the limitations period provided under this section; pursuant to the Medical Malpractice Act, § 16-114-201 et seq., this section's statute of limitations, as an inconsistent provision of law, is superseded by § 16-114-203 where the two conflict. Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 914 S.W.2d 303 (1996).

Any medical injury, even one resulting in death, is governed by the medical malpractice statute of limitations, § 16-114-203, and not by this section. Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 (1996).

By passing the Medical Malpractice Act, § 16-114-201 et seq., the Arkansas General Assembly did not repeal this section in cases where the death was caused by a medical injury. Meredith v. Buchman, 101 F. Supp. 2d 764 (W.D. Ark. 2000).

Wrongful-death and survival action brought by the administratrix of the decedent's estate against the medical center was time-barred under § 16-114-203 as the order appointing the administratrix was not effective until it was filed almost two weeks after the complaint was filed; therefore, at the time the administratrix filed this cause of action against the medical center, she was not the administrator of the estate and did not have standing to pursue the claim against the medical center. As such, the complaint was a nullity. Hubbard v. Nat'l Healthcare of Pocahontas, Inc., 371 Ark. 444, 267 S.W.3d 573 (2007).

Parties.

It is no defense that the widow has remarried since the killing. Saint Louis, I.M. & S. Ry. v. Cleere, 76 Ark. 377, 88 S.W. 995 (1905) (decision under prior law).

In an action for the killing of a child, the surviving father being the next of kin and the parent in whose behalf recovery may be had, it was error to instruct the jury that the mother might recover for the loss of the child's services. Hines v. Johnson, 145 Ark. 592, 224 S.W. 989 (1920) (decision under prior law).

Where a widow brought suit for the wrongful death of her husband in her name for the benefit of herself and their minor child and judgment was rendered for the widow and no question was raised in the trial court as to the proper parties plaintiff, it could not be raised for the first time on appeal. Reynolds v. Nutt, 217 Ark. 543, 230 S.W.2d 949 (1950) (decision under prior law).

Where wrongful death action was brought in the respective names of the parents of deceased minors when the parents were administrators of the respective estates of the sons, defendants were not prejudiced by the action of the court in denying their motion to dismiss the complaint and permitting the plaintiffs to amend their complaint by interlineation, substituting the proper parties plaintiff. J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W.2d 176 (1964)Criticized byHarris v. Hercules, Inc., 328 F. Supp. 360 (E.D. Ark. 1971).

Actions for survivorship and actions for wrongful death are separate and distinct in nature. In a survival action, the administrator asserts the decedent's own cause of action, and only the administrator may bring this cause of action; the wrongful death statute, on the other hand, creates a cause of action in the survivors, and it may be brought by the administrator in their behalf, or by the heirs themselves if there is no administrator. First Com. Bank v. United States, 727 F. Supp. 1300 (W.D. Ark. 1990).

In Arkansas, a wrongful-death action must be brought by and in the name of the personal representative of the deceased person, and if there is no personal representative of the deceased person, then a wrongful-death action must be brought by all the heirs at law; an action brought by less than all the heirs of the deceased is a nullity. Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003).

Survival and wrongful death action was properly dismissed because subsection (b) of this section requires that the suit be filed by the personal representative or all of the heirs of the decedent, and the Arkansas Supreme Court has held that this language is clear and unambiguous; because the wrongful-death action is a creation of statute and exists only in the manner and form prescribed by statute, an action brought by less than all of the heirs of the deceased is a nullity. Estate of Mona L. Hernandez v. Clark, — Ark. App. —, — S.W.3d —, 2004 Ark. App. LEXIS 481 (June 23, 2004).

Term “heirs at law” as used in subsection (b) of this section means “beneficiaries” as used in subsection (d), and a motion to dismiss a wrongful death action was properly granted where two sisters were not named as parties; the doctrine of relation back under Ark. R. Civ. P. 15 did not help because the original complaint was a nullity. Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458, 2005 Ark. LEXIS 239 (2005).

Circuit court properly concluded that the next of kin's wrongful death complaint against the physicians and nurses did not comply with § 16-62-102 (Supp. 1999) where there was no personal representative and the decedent's three siblings had not been named as plaintiffs in the action. Rice v. Tanner, 363 Ark. 79, 210 S.W.3d 860 (2005).

Order granting judgment on the pleadings in favor of a city, county, and others in a 42 U.S.C.S. § 1983 wrongful death action was affirmed as, when the original complaint was filed, the plaintiff, the decedent's daughter, was not yet the administratrix of the estate and the caption did not list the heirs individually, as required by Fed. R. Civ. P. 10(a) and Ark. R. Civ. P. 10(a); the complaint did not identify the heirs as parties and did not meet the requirements of subsection (b) of this section, thus, the daughter lacked standing to sue. Williams v. Bradshaw, 459 F.3d 846 (8th Cir. 2006).

Wrongful death and survival action filed by decedent's mother on behalf of herself and decedent was neither brought by and in the name of an appointed personal representative of decedent nor were decedent's brother and biological father (both statutory beneficiaries under subsection (d) of this section), joined as plaintiffs as required for a wrongful death action under subsection (b) of this section. Further, neither the mother nor anyone else had been appointed an administrator or executor as required for a survival action under § 16-62-101; therefore, at the time the mother filed the action, she did not have standing to pursue the claims against defendants. Farrow v. Sammis, No. 3:07cv00097 SWW, 2007 U.S. Dist. LEXIS 90429 (E.D. Ark. Dec. 7, 2007).

Regarding a father's motion to intervene in a mother's wrongful death and survivor action for the sole purpose of seeking to stay the proceedings pending a determination from the probate court as to who would be named administrator of decedent son's estate, Ark. R. Civ. P. 17 had no application because the action was not filed in accordance with subsection (b) of this section or § 16-62-101 and the original complaint thus was a nullity. When the original complaint was a nullity, Ark. R. Civ. P. 17 was inapplicable because the original complaint never existed and, therefore, there was no pleading to amend. Farrow v. Sammis, No. 3:07cv00097 SWW, 2007 U.S. Dist. LEXIS 90429 (E.D. Ark. Dec. 7, 2007).

Dismissal of a wrongful-death action against a doctor and a hospital was proper because the savings statute under § 16-62-102(b) did not apply since the case was improperly refiled by a mother and father as heirs at law when a personal representative had been appointed; the personal representative should have been substituted as the real party in interest prior to dismissal. Recinos v. Zelk, 369 Ark. 7, 250 S.W.3d 221 (2007).

Summary judgment was properly awarded to a physician in a husband's wrongful-death/survival action because when the husband filed his original suit, no order had been entered appointing him as administrator, nor were all of the wife's heirs at law named as plaintiffs, as required by § 16-62-101 and subsection (b) of this section. Norton v. Luttrell, 99 Ark. App. 109, 257 S.W.3d 580 (2007).

Trial court did not err by granting the doctors' summary judgment because the medical malpractice action was not properly filed within the two-year statute of limitations of § 16-114-203(a). The trial court did not err in holding that the November 3, 2009 order of substitution of parties was ineffective and therefore the action was barred by the statute of limitations because: (1) the wrongful death complaint filed by the patient's daughter and husband in April 2009 was a nullity because four siblings of the patient were omitted as party plaintiffs as required by subsection (b) of this section and therefore it never existed; (2) the order of substitution of parties that substituted the daughter in her capacity of estate administrator as the party plaintiff did not allege any facts supporting the action and therefore did not constitute an amended complaint; (3) the order of substitution was entered on November 3, 2009, after the statute of limitations had expired as to each doctor in July 2009 and September 2009; and (4) the estate administrator could not establish the first element of the continuous-course-of-treatment doctrine because she could not establish that the doctors provided continuous treatment to the patient up to November 3, 2009. Mendez v. Glover, 2010 Ark. App. 808, 379 S.W.3d 92 (2010).

—Heirs.

The mother is not an heir entitled to sue, although the deceased contributed to her support in his lifetime. Kansas City S. Ry. v. Frost, 93 Ark. 183, 124 S.W. 748 (1909) (decision under prior law).

A boy whose parents were killed in a railroad crossing collision, leaving him the only heir and next of kin of both parents, may recover for the mother's death. St. Louis-San Francisco Ry. v. Oxford, 174 Ark. 966, 298 S.W. 207 (1927) (decision under prior law).

Failure to appoint a personal representative has no bearing in a wrongful death action as the “heirs at law” can sue in their own right. Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974).

The statute authorizing heirs to maintain suit on behalf of a decedent is this section, and it applies only to wrongful death situations. Daughhetee v. Shipley, 282 Ark. 596, 669 S.W.2d 886 (1984).

Where a wrongful death action is pursued by heirs at law, all heirs at law must be joined in the action; where there are multiple heirs at law, a single heir at law lacks standing under this section, thus depriving the circuit court of jurisdiction. Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001).

Since family did not name decedent's siblings as plaintiffs in a lawsuit against defendants for medical malpractice where probate had not been opened, the complaint was a nullity and summary judgment in favor of defendants was proper; siblings were not named as plaintiffs until after statute of limitations in § 16-114-203 expired. Rice v. Tanner, 363 Ark. 79, 210 S.W.3d 860 (2005).

— —In Loco Parentis.

Where there was no evidence that the two adult grandchildren, who suffered no disability, were relying on their mother's support at the time of her death, they were not beneficiaries under the wrongful-death statute and were not entitled to take as heirs at law of their mother, because she did not stand in loco parentis to them at the time of her death. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000).

—Joinder.

Where there is no personal representative, the action may be brought by the widow and heirs, but if all parties do not join, the error is waived unless raised in trial court. St. Louis, I. M. & S. R. Co. v. Watson, 97 Ark. 560, 134 S.W. 949 (1911)Questioned byBond v. Missouri Pac. R.R., 233 Ark. 32, 342 S.W.2d 473 (1961). See also Saint Louis, I.M. & S. Ry. v. Corman, 92 Ark. 102, 122 S.W. 116 (1909) (preceding decisions under prior law).

It was an indispensable prerequisite to the maintenance of a suit under former section that widow and heirs be joined. Thompson v. Southern Lumber Co., 113 Ark. 380, 168 S.W. 1068 (1914) (decision under prior law).

An administratrix suing for the wrongful death of a foreign bus company's ticket agent who was injured while helping to load a passenger's truck on one of the company's vehicles was entitled to maintain a joint action against the company, the bus driver, and the Arkansas citizens who allegedly caused the death. Harrelson v. Missouri Pac. Transp. Co., 87 F.2d 176 (8th Cir. 1936) (decision under prior law).

—Personal Representatives.

The father cannot maintain the action where there is a personal representative. Saint Louis, M. & S.E.R.R. v. Garner, 76 Ark. 555, 89 S.W. 550 (1905) (decision under prior law).

A foreign administrator may maintain the action. St. Louis Sw. Ry. v. Graham, 83 Ark. 61, 102 S.W. 700 (1907); Midland V. R. Co. v. Le Moyne, 104 Ark. 327, 148 S.W. 654 (1912) (preceding decisions under prior law).

A wife's administrator may sue her husband for tort resulting in her death. Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832 (1916) (decision under prior law).

The administrator of a deceased employee may recover for his death against his employer for the benefit of everybody concerned, including the next of kin. Ashcraft v. Jerome Hardwood Lumber Co., 173 Ark. 135, 292 S.W. 386 (1927) (decision under prior law).

Deceased's mother as his administratrix could maintain an action for damages for his wrongful death. St. Louis-S.F. Ry. v. Crick, 182 Ark. 312, 32 S.W.2d 815 (1930) (decision under prior law).

A death action based on the Employer's Liability Act, §§ 11-8-101 — 11-8-108, for the benefit of the deceased employee's widow and heirs against a corporation not engaged in interstate commerce must be instituted by the personal representative of such employee and not by his widow and heirs. Dicken v. Missouri P. R. Co., 188 Ark. 1035, 69 S.W.2d 277 (1934) (decision under prior law).

When a personal representative is appointed, the personal representative is the only person who can maintain a suit for damages for wrongful death. Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564 (1953), cert. denied, 347 U.S. 937, 74 S. Ct. 632 (1954) (decision under prior law).

Personal representative in bringing suit for wrongful death acts only as a trustee of conduit and may not go beyond that status. Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961).

Where personal representative is appointed, personal representative is the only person who can maintain suit for wrongful death. Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961); Dawson v. Gerritsen, 295 Ark. 206, 748 S.W.2d 33 (1988).

Where deceased has died as a result of alleged negligence of defendant, both action for compensation of deceased's injuries and action for wrongful death of deceased should be brought by personal representative of deceased if there is one. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

While the widow and daughter of deceased are beneficiaries of any wrongful death recovery, there is no case law or statute giving them standing as parties to the action. Therefore it was not they, but the administrator, whose duty and right it was to pursue the action, subject to the probate court's approval, and to choose counsel for that purpose. Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985); Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

The personal representative, in bringing suit for wrongful death, acts only as a trustee of conduit, and any proceeds recovered are for the benefit of the beneficiaries and not for the estate. Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

Beneficiaries may prefer to have independent counsel to protect their interests in a wrongful death suit, but as long as the code provides that the personal representative is the party to bring the action, that party has the absolute right to choose counsel for that purpose. Should the personal representative or chosen council fail to provide adequate representation, application can be made to the probate court to either not approve or disallow the contracts entered into by the representative, and a representative can be removed pursuant to § 28-48-105 if the court finds him unsuitable. Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156 (1990).

Every wrongful death action shall be brought by the personal representative of the deceased person, if there is a personal representative. McGuire v. Smith, 58 Ark. App. 68, 946 S.W.2d 717 (1997).

A personal representative of the estate may file a wrongful death action on behalf of the statutory beneficiaries. Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), US Supreme Court cert. denied, Bates v. Arkansas, 526 U.S. 1064, 119 S. Ct. 1454, 143 L. Ed. 2d 541 (1999).

Dismissal of a wrongful death action filed in the name of the estate was proper where the action was required to have been brought by and in the name of the personal representative as personal representative; in addition, had an amendment been allowed to substitute the name of the personal representative, it would have constituted the commencement of a new action for which the period of limitations had expired pursuant to this section. Estate of Byrd v. Tiner, 81 Ark. App. 366, 101 S.W.3d 887 (2003).

—Special Administrator.

Because a special administrator was appointed in a reopened probate case, the special administrator was the duly appointed representative for the wrongful-death statutory beneficiaries and was the proper party plaintiff in the tort case. Arman v. Chi St. Vincent Hot Springs, 2019 Ark. App. 187, 574 S.W.3d 731 (2019).

Pecuniary Injuries.

The term “pecuniary injuries” in a wrongful death action refers to the present value of benefits, including money, goods and services which the deceased would have contributed to the claimed beneficiaries had she lived. Lowe v. United States, 662 F. Supp. 1089 (W.D. Ark. 1987).

Prior Judgment.

Where in action for injuries resulting from automobile collision by one driver against the other driver's widow as administratrix of his estate, widow did not file a cross complaint but alleged contributory negligence, judgment against the estate was held to bar subsequent action by widow against plaintiff in the former suit and his employer to recover damages occasioned by loss of contributions made to her by her deceased husband, since the widow had the duty of litigating in the former suit all the questions which she raised in the suit later brought for her personal benefit. Morgan v. Rankin, 197 Ark. 119, 122 S.W.2d 555, 119 A.L.R. 1466 (1938) (decision under prior law).

Where a personal representative of the deceased recovered in a wrongful death action and later an unknown widow of the deceased appeared and filed another wrongful death action against the defendant, the first suit is res judicata and a bar to the latter. Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564 (1953), cert. denied, 347 U.S. 937, 74 S. Ct. 632 (1954) (decision under prior law).

Trial court properly entered summary judgment for defendant railroad in decedent's estate's wrongful death lawsuit where the decedent's guardian had already sued the railroad and the case had been settled and the guardian had signed a release. Estate of Hull v. Union Pac. R.R., 355 Ark. 547, 141 S.W.3d 356 (2004).

Where the decedent wandered away from a nursing home and was never found, and where the guardian's negligence action concluded in a dismissal with prejudice, the guardian could not have brought another negligence and wrongful death lawsuit stemming from the same acts when the probate court declared the missing decedent was in fact dead. Brown v. Pine Bluff Nursing Home, 359 Ark. 471, 199 S.W.3d 45 (2004).

Property Damage.

The action authorized by former statute could not be used to recover damages for injuries to property. Pierce Oil Corp. v. Taylor, 147 Ark. 100, 227 S.W. 420 (1921) (decision under prior law).

Settlement Agreement.

A memorandum agreement purporting to settle all matters involved in the administration and distribution of decedent's estate did not preclude a wrongful death action filed on behalf of the statutory heirs. Skaggs v. Cullipher, 57 Ark. App. 50, 941 S.W.2d 443 (1997).

Statutory beneficiaries are not entitled to notice of a petition for approval of a wrongful death settlement. Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), US Supreme Court cert. denied, Bates v. Arkansas, 526 U.S. 1064, 119 S. Ct. 1454, 143 L. Ed. 2d 541 (1999).

Settlement proceeds do not become assets of the decedent's estate to be distributed pursuant to a will or the laws of intestate succession; instead, the proceeds of a wrongful death action are for the sole benefit of the statutory beneficiaries and may not be used to pay off debts of the estate. Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998), US Supreme Court cert. denied, Bates v. Arkansas, 526 U.S. 1064, 119 S. Ct. 1454, 143 L. Ed. 2d 541 (1999).

Trial court's denial of the adjustment company's claim to proceeds from a settlement made to an estate was affirmed because it was clear that the settlement was intended as a recovery for the estate beneficiaries and the company was precluded under subsection (e) of this section from making a claim for the deceased's debt against those proceeds. Mid-South Adjustment Co. v. Estate of Harris, 87 Ark. App. 139, 189 S.W.3d 518 (2004).

Statute of Limitations.

Where administrator's action against railroad for death of intestate was brought when an action for the benefit of the widow and next of kin was barred by limitations but action for the benefit of the estate was not, it must be presumed that suit was for the benefit of the estate. Sykes v. Jameson, 192 Ark. 631, 94 S.W.2d 718 (1936) (decision under prior law).

Action against a corporation on theory it should be held liable for the payment of a judgment recovered against another corporation for employee's death, if a tort action, would be barred because not brought within two years after employee's death or within one year after non-suit was taken against the present defendant in the former action. Mannon v. R.A. Young & Sons Coal Co., 207 Ark. 98, 179 S.W.2d 457 (1944) (decision under prior law).

The filing of an action within two years is a condition precedent to maintaining an action and the failure to bring suit within two years cannot be waived. Wilson v. Missouri P. R. Co., 58 F. Supp. 844 (E.D. Ark. 1945) (decision under prior law).

The period of limitations contained in this section is a part of the substantive rights created by the section, and all actions brought under the section are controlled by the limitation. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

Where at time of deceased's death his cause of action for personal injuries is barred by statute of limitations, action by his personal representative for wrongful death is also barred as it is derivative in nature and arises only where original of deceased has been preserved. Hicks v. Missouri Pac. R.R., 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed, 285 F.2d 427 (8th Cir. Ark. 1960).

In a wrongful death action against the owner of the involved car on the theory of negligent entrustment, an amendment of the complaint after the expiration of the statute of limitations which changed the allegation as to the identity of the driver of the car was not barred by the three-year limitation of this section as it was not the beginning of a new cause of action, but a continuation of the original. Soncini v. Rankin, 238 Ark. 595, 383 S.W.2d 500 (1964).

In an action for wrongful death where the complaint and summons were not delivered to the sheriff until the Monday following a Sunday upon which the last day for commencing a wrongful death action fell, the action was still timely because of the application of the Sunday rule. Vermeer Mfg. Co. v. Steel, 263 Ark. 323, 564 S.W.2d 518 (1978)Limited byTatro v. Langston, 328 Ark. 548, 944 S.W.2d 118 (Ark. 1997).

The limitation of time fixed by a wrongful death statute is a limitation on the right of action and is an essential element of the right to sue; therefore, the general savings clause provision has no application to wrongful death actions. Sandusky v. First Elec. Coop., 266 Ark. 588, 587 S.W.2d 37 (1979).

Statute of limitations for the wrongful death action was not tolled during the minority of the plaintiffs and thus action was barred by the three year statute of limitations. Crawford v. Martin Marietta Corp., 622 F.2d 339 (8th Cir. 1980).

This section does not preclude a party who has commenced a wrongful death action within three years of date of death, and who has suffered a nonsuit of that action, from recommencing it more than one year after date of nonsuit, but within three years from date of death. Legislative intent in creating the one-year-after-nonsuit provisions in this section was not to shorten limitations period in event of nonsuit. Burkett v. PPG Indus., Inc., 294 Ark. 50, 740 S.W.2d 621 (1987).

The wrongful death statute created a new and separate cause of action which could arise if death was caused by any wrongful act and which carries its own statute of limitations as part of that right. For this reason, the medical malpractice statute of limitations is irrelevant when a patient dies from his injuries before the two-year period has run. Brown v. Saint Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992).

Where wrongful-death complaint was not in compliance with this section, and the statute of limitations had run, barring heirs from commencing a wrongful-death action against a doctor, the wife of the deceased was also barred from pursuing a separate claim for loss of consortium, which was derivative to wrongful-death action. Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003).

Wrongful death action filed against healthcare providers by a decedent's parents was void ab initio where the decedent had no personal representative and the complaint failed to include as a plaintiff the decedent's half-brother; hence, under subsection (b) of this section, the parents could not add the half-brother after the limitations period had run. Andrews v. Air Evac EMS, Inc., 86 Ark. App. 161, 170 S.W.3d 303 (2004).

Where an original wrongful death complaint was a nullity because it was brought by the decedent's heirs rather than the personal representative, as required by this section, a subsequent amended complaint filed by the administratrix, which attempted to bring the estate in as a party, was a new suit filed after the statute of limitations period and, therefore, could not relate back under Ark. R. Civ. P. 15 and was barred by statute of limitations. Rhuland v. Fahr, 356 Ark. 382, 155 S.W.3d 2 (2004).

Motion to dismiss filed by an energy company should not have been granted because a claim was not time barred under § 16-62-102(c)(1) where it was filed within three years of death, but not within three years of an accident; there was no negligence claim filed by a decedent or on his behalf prior to the filing of a wrongful-death action. Miller v. Centerpoint Energy Res. Corp., 98 Ark. App. 102, 250 S.W.3d 574 (2007).

Under the savings statute, subdivision (c)(2) of this section, the administratrix had one year from the date of the nonsuit to refile her complaint against the medical center, and the administratrix did this by refiling her complaint on November 17, 2005; therefore, the circuit court erred in dismissing the administratrix's complaint against it. Brown v. Nat'l Health Care of Pocahontas, Inc., 102 Ark. App. 148, 283 S.W.3d 224 (2008).

Filing of a workers' compensation claim did not toll the statute of limitations on a wrongful death suit; the Arkansas Workers' Compensation Commission's primary jurisdiction to determine workers' compensation coverage did not prevent the tort action from being filed while the workers' compensation claim was pending. Frisby v. Milbank Mfg. Co., 688 F.3d 540 (8th Cir. 2012).

Circuit court did not abuse its discretion when it dismissed a personal representative's wrongful death complaint as being untimely filed because the original pro se complaint filed by plaintiff, a nonlawyer, as the personal representative of the estate constituted the unauthorized practice of law and was a nullity and could not be amended; by the time an attorney filed a complaint, more than three years had passed since the decedent's death, and the personal representative's claims were barred by the three-year statute of limitations. Henson v. Cradduck, 2020 Ark. 24 (2020).

Summary Judgment.

Where the matter of a legal duty was the subject of a construction contract which was ambiguous as to the parties' intent, a question of fact was presented, precluding summary judgment in a wrongful death action. Elkins v. Arkla, Inc., 312 Ark. 280, 849 S.W.2d 489 (1993).

Trial court properly granted summary judgment to the owners of a pool in a wrongful death action arising from the drowning of a child; the owners did not engage in any willful or wanton conduct which contributed to the child's drowning because, even though only one adult who could swim was present in the area, a pool owner had repeatedly told the deceased child to wear a life jacket and had told the children to stay in the shallow end of the pool. Moses v. Bridgeman, 355 Ark. 460, 139 S.W.3d 503 (2003).

Survival Action.

For a death caused by the wrongful act of another, a cause of action survives if the deceased lived after the act constituting the cause of action, whether conscious or not. Saint Louis, I.M. & S. Ry. v. Dawson, 68 Ark. 1, 56 S.W. 46 (1900) (decision under prior law).

The cause of action in favor of the husband for the negligent killing of his wife does not survive the husband. Billingsley v. St. Louis, I.M. & S. Ry., 84 Ark. 617, 107 S.W. 173 (1907) (decision under prior law).

An action is not abated by the death of a party after the cause of action has been merged in a final judgment and while the judgment stands, even though the judgment is based on a cause of action which would not survive the death of a party before judgment. Brundrett v. Hargrove, 204 Ark. 258, 161 S.W.2d 762 (1942) (decision under prior law).

The survival and wrongful death causes are stated in separate sections, and the fact that this section is entitled “Wrongful death actions—Survival” does not indicate that the survival cause of action is contained in this section. First Com. Bank v. United States, 727 F. Supp. 1300 (W.D. Ark. 1990).

Memorandum agreement purporting to settle all matters involved in the administration and distribution of decedent's estate settled and released an estate's survival cause of action. Skaggs v. Cullipher, 57 Ark. App. 50, 941 S.W.2d 443 (1997).

Circuit court's order dismissing a wrongful death claim which failed to dispose of a survival claim made pursuant to § 16-62-101 left the Arkansas Supreme Court without jurisdiction to entertain an appeal of the case in the absence of a final judgment. Myers v. McAdams, 366 Ark. 435, 236 S.W.3d 504 (2006).

Order appointing the administratrix on April 11, 2003, as special administratrix specifically stated that the term was for six months; thus, her term expired on October 11, 2003, before she filed complaints against all of the appellees except for the medical center; unless a person was the personal representative or executor of the estate at the time of filing, he had no standing to file a complaint on behalf of the estate and any complaint filed was a nullity, and because the administratrix's complaint was a nullity, her nonsuit on December 6, 2004, did not dismiss these complaints; it dismissed only the properly filed complaint against the medical center, and because the first complaints filed were nullities, the November 17, 2005 complaint was the first complaint filed by a properly appointed personal representative and no savings statute applied; thus, the administratrix's complaint against the medical personnel was barred by the statute of limitations. Brown v. Nat'l Health Care of Pocahontas, Inc., 102 Ark. App. 148, 283 S.W.3d 224 (2008).

Unborn Child.

This section will determine whether, or to what extent, there is a right to maintain an action, or to recover damages, for the death of an unborn child and the action, if any, is a tort action cognizable in circuit court; the wrongful death statute will not be interpreted in an ex parte probate proceeding. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984).

Under the parental immunity statute, a viable fetus born dead does not have a cause of action against a mother who negligently caused the death of the fetus, regardless of whether the fetus is a “person” under the wrongful death statute. Where the claim of the fetus against the mother for negligent injury is barred by the parental immunity doctrine, the derivative claims by the fetus and its siblings under the wrongful death statute are also barred. Carpenter ex rel. Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299 (1986).

“Person” does not include a viable fetus for the purpose of the wrongful death statute. Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995), overruled, Aka v. Jefferson Hosp. Ass'n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001).

A viable fetus is a “person” within the meaning of this section. Aka v. Jefferson Hosp. Ass'n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001).

Cited: De Long v. Green, 229 Ark. 100, 313 S.W.2d 370 (1958); Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961); Glick v. Ballentine Produce, Inc., 343 F.2d 839 (8th Cir. 1965); MFA Mut. Ins. Co. v. Lovins, 248 F. Supp. 108 (E.D. Ark. 1965); McGinty v. Ballentine Produce, Inc., 241 Ark. 533, 408 S.W.2d 891 (1966); Matthews v. Travelers Indem. Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968); Maryland Cas. Co. v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974); Russ v. Ratliff, 578 F.2d 221 (8th Cir. 1978); Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979); Hopkins v. Chip-In-Saw, Inc., 630 F.2d 616 (8th Cir. 1980); Webb v. Harvell, 563 F. Supp. 172 (W.D. Ark. 1983); Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986); Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986); Burrows v. Turner Mem'l Hosp., 762 F. Supp. 840 (W.D. Ark. 1991); Ruffins v. ER Ark., P.A., 313 Ark. 175, 853 S.W.2d 877 (Ark. 1993); Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994); Holmes v. McClendon, 349 Ark. 162, 76 S.W.3d 836 (2002); Estate of Hull v. Union Pac. R.R., 355 Ark. 547, 141 S.W.3d 356 (2004); Cockrum v. Fox, 359 Ark. 508, 199 S.W.3d 69 (2004); Johnson v. Greene Acres Nursing Home Ass'n, 364 Ark. 306, 219 S.W.3d 138 (2005); Lucas v. Wilson, 2011 Ark. App. 584, 385 S.W.3d 891 (2011).