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03/28/78 Helen Semler, v. Psychiatric Institute of

March 28, 1978

SEMLER, DECEASED, APPELLANT

v.

PSYCHIATRIC INSTITUTE OF WASHINGTON, D.C., INC., ET AL.; HELEN SEMLER, ADMINISTRATRIX OF THE ESTATE OF NATALIA

SEMLER, DECEASED

v.

PSYCHIATRIC INSTITUTE OF WASHINGTON, D.C., INC., ET AL., APPELLANTS 1978.CDC.44



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

HELEN SEMLER, ADMINISTRATRIX OF THE ESTATE OF NATALIA

Appeals from the United States District Court for the District of Columbia (D.C. Civil 74-1567).

APPELLATE PANEL:

Wright, McGowan and Wilkey, Circuit Judges. Opinion for the Court filed by Circuit Judge Wilkey.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY

The issue presented in this case is whether a Virginia judgment for plaintiff under the Virginia Wrongful Death Act *fn1 precludes plaintiff from seeking further recovery in a District of Columbia court for the same wrongful death under the District of Columbia Wrongful Death Act *fn2 and Survival Act. *fn3

In 1972 John Gilreath was convicted in a Virginia state court for the abduction of a young girl. The judge sentenced Gilreath to 20 years' imprisonment but suspended the sentence, conditioned on his continued treatment and confinement at the Psychiatric Institute of Washington, D.C. *fn4 In September 1973, without the approval of the Virginia court but with the sanction of Gilreath's probation officer, the Psychiatric Institute placed Gilreath in a loosely structured and generally unsupervised out-patient program. The following month Gilreath murdered a young woman, Natalia Semler, in Fairfax, Virginia.

Helen Semler, the deceased's mother and personal representative, brought an action under the Virginia Wrongful Death Act in the United States District Court for the Eastern District of Virginia *fn5 against the Psychiatric Institute and other defendants associated with the Institute, contending that defendants had been negligent in their supervision and control of Gilreath and that this negligence proximately caused the death of plaintiff's daughter. On 17 October 1974 the district court, sitting without a jury, found the defendants liable and on 18 October entered judgment for $25,000.

One week later, on 25 October 1974, plaintiff filed the instant action against the same defendants under the District of Columbia Wrongful Death Act and Survival Act in the United States District Court for the District of Columbia.

On 29 September 1976 the District Judge issued an order *fn6 granting defendants' motion for summary judgment on the ground that plaintiff's District of Columbia action was precluded by the res judicata effect of the judgment plaintiff had already obtained in the previous Virginia action. The case is before us on plaintiff's appeal from this order. For the reasons stated herein, we affirm the District Court. I. ANALYTIC OVERVIEW

This wrongful death case involves two jurisdictions -- the state of Virginia and the District of Columbia. These jurisdictions follow different choice of law rules. The choice of law rule for wrongful death followed by Virginia courts is that the law of the place of the wrong determines the existence and nature of a cause of action for death, unless another state has a more significant relationship to the occurrence or the parties with respect to a particular issue. *fn7 The "place of the wrong" is defined as "the place the harmful force takes effect upon the body." *fn8 In contrast, the District of Columbia has increasingly applied an "interest analysis" approach in determining the law applicable in tort cases in general *fn9 and wrongful death cases in particular. *fn10 Simply stated, the method of governmental interest analysis is (1) to identify the state policies underlying each law in conflict, and (2) to decide which state's policy would be advanced by having its law applied to the facts at bar. *fn11

Moreover, the substantive laws governing wrongful death in Virginia and the District of Columbia are different. At common law no civil action was maintainable in either jurisdiction against a person for the wrongful death of another. A right of action for personal injuries did not survive the death of the injured party. Both jurisdictions have now changed this rule by statute.

Under District of Columbia law, negligent conduct resulting in death gives rise to two independent rights of action, one under the Wrongful Death Act and one under the Survival Act, upon each of which damages may be sought. *fn12 The Wrongful Death Act is said to create an entirely new right of action in favor of designated beneficiaries. *fn13 It is designed to provide a remedy whereby close relatives of the deceased, who might naturally have expected maintenance or assistance from the deceased had he lived, may recover compensation from the wrongdoer commensurate with the loss sustained. Thus, proper recovery under this Act is based on the pecuniary benefits that the statutory beneficiaries might reasonably be expected to have derived from the deceased had he lived. *fn14

The Survival Act, on the other hand, does not create a new right of action for designated beneficiaries, but rather preserves and carries forward for the benefit of the deceased's estate the right of action which the deceased would have had, had he not died. *fn15 The Act is designed to place the deceased's estate in the position it would have been in had the deceased's life not been cut short. Thus, proper recovery under the Act is based on the probable net future earnings reduced ...


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