Legal Question in Civil Litigation in California

Re: A fathers right to be notified of a childs death

I deeply sympathize with your husband. He probably has legal recourse, but the law is not clear on this point.

Suing for intentional infliction of emotional distress requires proof of an intentional or reckless act; mere omissions are generally not enough.

California does not recognize the tort of negligent infliction of emotional distress, though some other states probably do. Instead, California recognizes a general negligence cause of action. Proving a negligence claim requires (among other things) proof of injury, and that injury may take the form of emotional distress. A negligence claim also requires proof that the defendant breached a legal duty. So, the question becomes whether the ex-wife was legally obligated to notify your husband.

I believe the answer is yes, though I am not aware of any statutes or cases that specifically say so. Coroners and certain other public entities which find themselves in possession of a body have duties to find the next of kin, but here the coroner already was in contact with the mother and that may have been enough. I presume that the coroner asked the mother who the father was and that she claimed not to know. If this is what happened then the coroner has almost surely done enough.

Did the mother have a duty to answer the coroner truthfully? Probably. If not, did she have a duty to tell her ex-husband what had happened? Maybe. The law recognizes that parents have special obligations to one another which they would not have to others, including other family members. If the son had still been a minor I think the answer would be much more clear that she was required to inform your husband. The fact that the son was an adult muddies the water a bit, but I think a judge would conclude that she did have a duty to tell your husband.

It should be easier to prove that she had a duty to answer the coroner truthfully, but that is not enough. Your husband will also have to prove that her failure to answer truthfully caused his distress -- in other words, he would have to prove that the coroner would have called him had the mother provided his name. I don't know if this would have happened, though.

Assuming your husband can prove his negligence case by either of these theories, he would be entitled to damages for his emotional distress. Punitive damages are another matter; they are reserved for conduct that is "outrageous", and that generally means only intentional affirmative acts. It may be possible to get punitive damages based upon a wilful failure to do what was required.

(I note that punitive damages are also based on the defendant's ability to pay, and I don't know whether the ex-wife has a lot of money.)

So, your husband could probably win a lawsuit against his ex. I'm not sure which theory would be more likely to succeed and I am not sure he could get punitive damages.

Re: A fathers right to be notified of a childs death

Legally, the only thing he can do is go after the ex- for his emotional distress. That won't be satisfying though. He can do something in another way during this holiday season. Make a donation in his son's memory to a charity or charities of his choice. That way, his son's legacy will continue to benefit others.