declining to exercise the legislative function of extending the law to nondependent survivors “despite strong policy considerations” to do so
How later courts described this case
- declining to exercise the legislative function of extending the law to nondependent survivors “despite strong policy considerations” to do so
Written by the judges who cited it.
The opinion
Ellington, J.
(concurring) — Once again 29 we confront the flaws in the statutory scheme for survival of actions. Maria Schumacher is exactly the person the legislature set out to protect in enacting the vulnerable adults statute. But the statute did not protect her, because of the limitations of the survival statute.
Had Maria Schumacher survived her scalding bath, she would have had a cause of action under the statute. But when abuse or neglect results in death, instead of just injury, the wrong goes without remedy unless the deceased is survived by a spouse, a child, or dependent parents or siblings.
Certainly there are many vulnerable adults with spouses or children. Probably some few even have wealth, so that dependent heirs, parents or siblings, may exist. Maria Schumacher, as it happened, had neither wealth, nor spouse or children. So, her family is left without recourse, and those whose negligence allegedly led to her death are left unaccountable. In cases of vulnerable adults without statutory heirs, the message to caregivers seems to be that fatal negligence is preferable to mere injury.
I nonetheless concur in the majority opinion, because courts must not, despite strong policy considerations, bend the rules of statutory construction to work an unstated change in the law. The majority correctly refuses to do so. This is a matter the legislature must address, as I hope it does. *
Review denied at 145 Wn.2d 1075 (2002).
See Tait v. Wahl, 97 Wn. App. 765, 775 , 987 P.2d 127 (1999) (Ellington, J., concurring), review denied, 140 Wn.2d 1015 (2000).