After a 38-year-old man was shot and killed, his mother and his five-year-old son filed survival and wrongful death claims against the shooter. The man was killed in August 2009, and on June 9, 2015, the man’s mother and the man’s then five-year-old son filed a complaint against the shooter. They alleged wrongful death based on negligence, a survival action based on negligence, wrongful death based on gross negligence, a survival action based on gross negligence, wrongful death based on battery, a survival action based on battery, and fraudulent conveyance.
The defendant moved to dismiss the case, and the court granted the motion to dismiss as to the wrongful death claims because the court said they were filed too late. The plaintiff appealed the decision, and in a recent decision, a state court of appeals reinstated the claims.
Under that state’s laws, a wrongful death claim had to be filed within three years of the date of death. However, the state provided exceptions under certain circumstances. One statute provided that a wrongful death claim filed by a minor plaintiff was tolled during the period of minority. Another statute stated that if a plaintiff did not know about a claim due to an adverse party’s fraud, the time period for the claim began to run when the party discovered or should have discovered the fraud through ordinary diligence.