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Brown v. Pine Bluff Nursing Home12/2/2004
lease of all liability and claims related to the accident. Hull died in 1999, and at that time, her estate attempted to seek damages against Union Pacific as a result of her death. The trial court dismissed the estate's wrongful death suit, holding that the 1996 settlement and release barred any future suit. This court agreed, noting that a "suit by an injured party, reduced to final judgment, extinguishes any wrongful death claim against identical defendants based on identical allegations of fault." Estate of Hull, 355 Ark. at 358 (emphasis added). The court held that, since the wrongful death action was derivative in nature from the original tort, and since the original right of the decedent was settled and therefore no longer preserved, Union Pacific had an absolute defense in its prior settlement with the decedent. Id. at 360. Likewise, in Simmons, the court held that a settlement by an injured party or a suit reduced to judgment during the lifetime of the injured party bars a subsequent wrongful death suit by the next of kin or other beneficiaries because of res judicata. Simmons, 288 Ark. at 307.
This result is obtained because our wrongful death statute, Ark. Code Ann. ยง 16-62-102 (1987 & Supp. 2003), provides that a cause of action arises when a person's death is "caused by a wrongful act, neglect, or default and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued[.]" (Emphasis added.) Other jurisdictions with similar wrongful death statutes have reached the same result. See, e.g., Xu v. Gay, 257 Mich. App. 263, 668 N.W.2d 166 (2003); Kessinger v. Grefco, Inc., 251 Ill. App. 3d 980, 623 N.E.2d 946 (1993); Russell v. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex. 1992). The supreme court of Texas explained the rationale for this rule as follows:
We have consistently held that the right of statutory beneficiaries to maintain a wrongful death action is entirely derivative of the decedent's right to have sued for his own injuries immediately prior to his death, and is subject to the same defenses to which the decedent's action would have been subject. In short, wrongful death action plaintiffs stand in the legal shoes of the decedent. As we said in Vassallo v. Nederl-Aerik Stoomy Maats Holland, 162 Tex. 52, 344 S.W.2d 421 (1961):
It is our opinion that under the express provisions of the Wrongful Death Act, the plaintiff is permitted to assert any basis for recovery that the decedent could have asserted if he were alive, and no other; and that the defendant can assert any defense to that cause of action that it could have asserted if the decedent had survived, and no other. The statutory beneficiaries of a deceased . . . have the same substantive rights to recover as the deceased would have had had his injury been less than death.
Accordingly, we have recognized that a wrongful death action is not allowed if the decedent could not, immediately prior to his death, have maintained an action[.]
Russell, 841 S.W.2d at 347 (emphasis added).
In the present case, as discussed above, Thomas's negligence action concluded in a dismissal with prejudice. That action having been dismissed with prejudice, Thomas could not have brought another negligence lawsuit stemming from the same acts in the event that he had survived. Therefore, we affirm the trial court's decision that Brown is barred from bringing the instant wrongful death action, and the trial court was correct to dismiss the case.
Corbin and Hannah, JJ., concur.
Jim Hannah, Justice, concurring.
I agree that this case must be affirmed, but I
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