Lewis

In this case we hold that the Legislature restricted the right to maintain an action for wrongful death to heirs as that term is defined by the intestacy provisions of the Probate Code and did not intend that right to be exercised by one who became an heir by virtue of the heirs disclaiming any interest in the estate of the decedent.

Plaintiffs, Roy and Betty Lewis, are the paternal grandparents of the deceased minor, Robert Ralph Lewis, Jr. At the time of his death, the minor was 13 years old, had been diagnosed as moderately mentally retarded and hyperactive, and suffered from physical disabilities. Plaintiffs were the legal guardians of the minor and he resided with them as a member of their family unit. The minor's death occurred on December 5, 1981, by drowning. At the time, he was under the care and supervision of one of the defendants, [1] St. Elmo Nickols, an employee of defendant the H.A.T.C.H. Program, who had taken the minor on an outing to Gray Whale Cove, San Mateo County. The complaint alleged that the death was caused by Nickols' negligence in failing to observe and supervise the minor properly. At the time of filing the wrongful death action,…

In this case we hold that the Legislature restricted the right to maintain an action for wrongful death to heirs as that term is defined by the *352 intestacy provisions of the Probate Code and did not intend that right to be exercised by one who became an heir by virtue of the heirs disclaiming any interest in the estate of the decedent.

I.

Plaintiffs, Roy and Betty Lewis, are the paternal grandparents of the deceased minor, Robert Ralph Lewis, Jr. At the time of his death, the minor was 13 years old, had been diagnosed as moderately mentally retarded and hyperactive, and suffered from physical disabilities. Plaintiffs were the legal guardians of the minor and he resided with them as a member of their family unit. The minor’s death occurred on December 5, 1981, by drowning. At the time, he was under the care and supervision of one of the defendants, 1 St. Elmo Nickols, an employee of defendant the H.A.T.C.H. Program, who had taken the minor on an outing to Gray Whale Cove, San Mateo County. The complaint alleged that the death was caused by Nickols’ negligence in failing to observe and supervise the minor properly. At the time of filing the wrongful death action, the…

I respectfully dissent.

The decision to bar the guardian-grandparents from prosecuting this wrongful death action exalts form over substance. The policy behind the wrongful death statute is to permit recovery for the loss of such elements as comfort, love and affection as well as pecuniary losses. (See Krouse v. Graham (1977) 19 Cal.3d 59, 69-70 [ 137 Cal.Rptr. 863 , 562 P.2d 1022 ].) Plaintiffs were more than decedent’s guardians; at all pertinent times they acted as his parents. These three considered themselves a family unit and exhibited the love and affection one would expect from that relationship. If we were to give the statute the meaning advanced by defendants, we would create two types of “heirs”; one for the purpose of intestate succession and the other for the purpose of prosecuting a wrongful death action. Under the facts of this case, such a dual interpretation would lead to incongruous results. This is especially true when, as in this case, the persons challenging the rights of the grandparents are not the parents but the alleged tortfeasors.

Implicit in appointing plaintiffs the guardians is the conclusion that (1) the appointment is necessary or convenient, (2)…