§663-3  Death by wrongful act.  (a) 
When the death of a person is caused by the wrongful act, neglect, or default
of any person, the deceased's legal representative, or any of the persons
enumerated in subsection (b), may maintain an action against the person causing
the death or against the person responsible for the death.  The action shall be
maintained on behalf of the persons enumerated in subsection (b), except that
the legal representative may recover on behalf of the estate the reasonable
expenses of the deceased's last illness and burial.



(b)  In any action under this section, such
damages may be given as under the circumstances shall be deemed fair and just
compensation, with reference to the pecuniary injury and loss of love and
affection, including:



(1)  Loss of society, companionship, comfort,
consortium, or protection;



(2)  Loss of marital care, attention, advice, or
counsel;



(3)  Loss of care, attention, advice, or counsel of a
reciprocal beneficiary as defined in chapter 572C;



(4)  Loss of filial care or attention; or



(5)  Loss of parental care, training, guidance, or
education, suffered as a result of the death of the person;



by the surviving spouse, reciprocal beneficiary,
children, father, mother, and by any person wholly or partly dependent upon the
deceased person.  The jury or court sitting without jury shall allocate the
damages to the persons entitled thereto in its verdict or judgment, and any
damages recovered under this section, except for reasonable expenses of last
illness and burial, shall not constitute a part of the estate of the deceased. 
Any action brought under this section shall be commenced within two years from
the date of death of the injured person, except as otherwise provided. [L 1923,
c 245, §1; RL 1925, §2681; am L 1931, c 16, §1; am L 1933, c 139, §1; RL 1935,
§4052; RL 1945, §10486; am L 1955, c 205, §1; RL 1955, §246-2; HRS §663-3; am L
1972, c 144, §2(c); am L 1997, c 383, §20]



 



Rules of Court



 



  See HRCP rule 17.



 



Law Journals and Reviews



 



  Hawaii's Loss of Consortium Doctrine:  Our Substantive,
Relational Interest Focus.  VII HBJ No. 13, at pg. 59.



  Masaki v. General Motors Corp.:  Negligent Infliction of
Emotion Distress and Loss of Filial Consortium.  12 UH L. Rev. 215.



  Punitive Damages in Hawaii:  Curbing Unwarranted Expansion. 
13 UH L. Rev. 659.



  Extending Loss of Consortium to Reciprocal Beneficiaries: 
Breaking the Illogical Boundary Between Severe Injury and Death in Hawai‘i Tort
Law.  28 UH L. Rev. 429.



 



Case Notes



 



  Action barred in Hawaii district courts under Death on the
High Seas Act.  230 F.2d 780.



  Section does not authorize punitive damages.  644 F.2d 594.



  No recovery on the facts, by father and sister of victim of
shell explosion.  158 F. Supp. 394.



  Parents may bring an action for wrongful death of a viable
fetus.  745 F. Supp. 1573.



  Cause of action existed for child's loss of consortium
despite non-fatal injury to parent.  781 F. Supp. 1487.



  Damages parents entitled to for loss of son, discussed.  823
F. Supp. 778.



  Limitations period in section applied, where defendants
argued that plaintiff's wrongful death action was derivative of the claims of
the estate and therefore barred by applicable statutes of limitation; statute
of limitations governing plaintiff's claim should begin to run when plaintiff
experienced plaintiff's injury, not when plaintiff's husband knew of husband's
injury.  854 F. Supp. 702.



  Plaintiffs' claims against certain defendants were
time-barred, where those defendants were first named as parties in first amended
complaint filed more than two years after plane crash and the claims did not
relate back to the date the original complaint was filed.  289 F. Supp. 2d
1197.



  Where plaintiffs contended that most of their claims were
governed by §657-7, all of plaintiffs' claims were governed by the limitations
period established in this section; the statute of limitations began to run, as
per the terms of this section, upon the death of plaintiffs' wife and mother. 
396 F. Supp. 2d 1150.



  Prior to this enactment, no action maintainable by parent for
death of adult daughter by wrongful act.  27 H. 626.  There was a common-law
action for death of spouse or minor child.  2 H. 209; 16 H. 615.  Common-law
action based on relationship of husband and wife and parent and child not
abrogated by this section prior to 1955 amendments.  37 H. 571.  See 45 H. 373,
394, 369 P.2d 96, reh'g den. 45 H. 443, 369 P.2d 114, as to effect of 1955
amendments.  Child has no cause of action for injuries to parent not resulting
in death.  41 H. 634; 244 F.2d 604.



  Action against employer barred where dependent of decedent
has remedy for compensation under Workmen's Compensation Act.  41 H. 422; 42 H.
518.  Effect of Workmen's Compensation Law prior to 1931 amendments.  32 H. 61;
32 H. 153.



  Relationship between this section and §663-7 discussed.  45
H. 373, 369 P.2d 96.



  Damages:  34 H. 5; 34 H. 426; 40 H. 691.  Damages to widow
and children for loss of support and loss of love, care, affection and
guidance.  282 F.2d 599.  Recovery for loss of support, computation of.  245 F.
Supp. 981, 1012-1016, aff'd 381 F.2d 965.  Recovery by widow and child of
decedent for loss of consortium and parental care.  245 F. Supp. 981,
1017-1018, aff'd 381 F.2d 965.  Although trial court may not have been completely
accurate in certain particulars in awarding damages, not set aside if the total
award is reasonable.  499 F.2d 866.



  Parties, prior to 1933 amendment.  32 H. 611.  See 135 F.
Supp. 376; 244 F.2d 604.



  Dependents, who are.  34 H. 426, 442.



  The limitations period is tolled by §657-13 during minority
of surviving children.  63 H. 273, 626 P.2d 182; 69 H. 410, 745 P.2d 285.



  If decedent had no cause of action, survivors had none.  69
H. 95, 735 P.2d 930.



  Since claims were derivative in nature and arose from a
single person, defendant was not underinsured.  70 H. 42, 759 P.2d 1374.



  Section does not distinguish between minor and adult
children.  71 H. 1, 780 P.2d 566.



  Section entitles any person wholly or partially dependent on
deceased to raise claims for both pecuniary injuries and loss of love and
affection.  75 H. 544, 867 P.2d 220.



  A breach of express warranty action could be a basis for a
derivative wrongful death action brought pursuant to this section.  86 H. 383
(App.), 949 P.2d 1004.



  As cause of action for punitive damages survives the death of
the decedent under §663-7, punitive damages are not recoverable in an action
under this section.  87 H. 273 (App.), 954 P.2d 652.



  Claims brought under this section must relate to the general
loss of love and affection suffered by the designated survivors.  87 H. 273
(App.), 954 P.2d 652.



  Cited:  349 F.2d 693, 698; 134 F. Supp. 868, 870; 351 F.
Supp. 185, 187; 41 H. 603, 604; 45 H. 443, 444, 369 P.2d 96.