Jonathan James


Although courts have expressed repugnance for discrimination against nonresidents as far back as the early 1900s and recognized that it was out of date even in their time, it is the refusal of Washington courts to question the constitutionality of such legislative enactments which has allowed this injustice to continue unabated for almost 100 years. It is time that the courts in Washington finally realize that such discriminatory legislation must succumb to the protections provided by both the United States and Washington Constitutions and find these statutes unconstitutional. To do otherwise would allow a tortfeasor an “undeserved and morbid windfall” should his tortious act result in death instead of injury. Part II of this Comment will briefly discuss the historical roots of wrongful death and survival statutes from their origin in England, the resulting lack of a common law cause of action, and the current Washington statutes. Part II concludes with a discussion of treatment of nonresident beneficiaries under various wrongful death and survival statutes. Part III applies the rational basis constitutional review adopted by the Washington State Supreme Court. In Part IV, this Comment concludes that, under the rational basis test and pertinent Washington case law, the Washington statutes are unconstitutional.

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