Legal Memorandum: FELA Recovery by a Decedent's Children

Issue: Under the Federal Employer Liability Act (FELA), are the adult children of a decedent prohibited from recovering for the loss of their parent?

Nothing in § 51 or any other part of the FELA limits recovery on behalf of a decedent’s surviving children.  Instead, the express language of § 51 provides recovery "for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents."  45 U.S.C. § 51.  The survivors are entitled to recover pecuniary losses caused by the wrongful death of the decedent.  Gulf, Colo. & Santa Fe Ry. v. McGinnis, 228 U.S. 173 (1913).  The survivors’ recovery is based on their reasonable expectation of pecuniary benefit, not on their age.  See Garrett v. Louisville & Nashville R. Co., 235 U.S. 308, 313 (1914); Kozar v. Chesapeake & Ohio Ry., 449 F.2d 1238, 1243 (6th Cir. 1971).

As Boller v. Pennsylvania R. Co., 185 F. Supp. 505, 508 (N.D. Ind. 1960) points out, numerous cases hold that adult children may recover under FELA’s wrongful death provisions.  See, e.g., Kozar, 449 F.2d at 1243; Kansas City S. Ry. v. Frost, 93 Ark. 183, 124 S.W. 748, 751 (1909); Chesapeake & Ohio Ry. v. Shirley’s Adm’x, 218 Ky. 337, 291 S.W. 395, 398 (1926).

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