§ 34-23-2-1 — Injury or death of child; action by parent or guardian

(a) This section does not apply to an abortion
performed in compliance with:
(1) IC 16-34; or
(2) IC 35-1-58.5 (before its repeal).
(b) As used in this section, "child" means an unmarried individual
without dependents who is:
(1) less than twenty (20) years of age; or
(2) less than twenty-three (23) years of age and is enrolled in a
postsecondary educational institution or a career and technical
education school or program that is not a postsecondary
educational program.
The term includes a fetus that has attained viability (as defined in IC 16-18-2-365).
(c) An action may be maintained under this section against the
person whose wrongful act or omission caused the injury or death of a
child. The action may be maintained by:
(1) the father and mother jointly, or either of them by naming the
other parent as a codefendant to answer as to his or her interest;
(2) in case of divorce or dissolution of marriage, the person to
whom custody of the child was awarded; and
(3) a guardian, for the injury or death of a protected person.
(d) In case of death of the person to whom custody of a child was
awarded, a personal representative shall be appointed to maintain the
action for the injury or death of the child.
(e) In an action brought by a guardian for an injury to a protected
person, the damages inure to the benefit of the protected person.
(f) In an action to recover for the death of a child, the plaintiff may
recover damages:
(1) for the loss of the child's services;
(2) for the loss of the child's love and companionship; and
(3) to pay the expenses of:
(A) health care and hospitalization necessitated by the wrongful
act or omission that caused the child's death;
(B) the child's funeral and burial;
(C) the reasonable expense of psychiatric and psychological
counseling incurred by a surviving parent or minor sibling of
the child that is required because of the death of the child;
(D) uninsured debts of the child, including debts for which a
parent is obligated on behalf of the child; and
(E) the administration of the child's estate, including reasonable
attorney's fees.
(g) Damages may be awarded under this section only with respect
to the period of time from the death of the child until:
(1) the date that the child would have reached:
(A) twenty (20) years of age; or
(B) twenty-three (23) years of age, if the child was enrolled in
a postsecondary educational institution or in a career and
technical education school or program that is not a
postsecondary educational program; or
(2) the date of the child's last surviving parent's death;
whichever first occurs.
(h) Damages may be awarded under subsection (f)(2) only with
respect to the period of time from the death of the child until the date
of the child's last surviving parent's death.
(i) Damages awarded under subsection (f)(1), (f)(2), (f)(3)(C), and
(f)(3)(D) inure to the benefit of:
(1) the father and mother jointly if both parents had custody of the
child;
(2) the custodial parent, or custodial grandparent, and the
noncustodial parent of the deceased child as apportioned by the
court according to their respective losses; or
(3) a custodial grandparent of the child if the child was not
survived by a parent entitled to benefit under this section.
However, a parent or grandparent who abandoned a deceased child
while the child was alive is not entitled to any recovery under this
chapter.
(j) This section does not affect or supersede any other right, remedy,
or defense provided by any other law.
[Pre-1998 Recodification Citation: 34-1-1-8.]

Legislative History

As added by P.L.1-1998, SEC.18. Amended by P.L.2-2007, SEC.373; P.L.234-2007, SEC.169; P.L.3-2008, SEC.242; P.L.129-2009, SEC.8.