Almost daily, newspapers recount the details of another automobile accident or airplane crash in which numerous persons are killed--a common disaster. And determination of survivorship in common disaster cases presents some of the most vexing problems that lawyers and judges meet. Lawyers must search for evidence, frequently hard to obtain, and then must face difficult questions of relevancy, materiality, and probative value, since in almost all cases where any evidence is available it is wholly circumstantial. Judges must decide preliminary disputes over who shall bear the burden of proof, and then must rule on the sufficiency of evidence, which is usually sparse. And if, as in fully half the cases, there is no evidence tending to prove survivorship, both lawyers and judges must wrestle with a question which cannot be solved except arbitrarily.
On this last question much has been written. But strangely enough, almost no attention has been given to the questions which arise when it is sought to establish survivorship by proof, a course which all courts agree is open to litigants in common disaster cases. The writers propose, therefore, to suggest some of these questions, to point out possible sources of evidence of survivorship, and to indicate how courts may be expected to deal with such evidence. But first it is necessary to know what is a common disaster and why survivorship must be determined.
John E. Tracy & John J. Adams,
EVIDENCE OF SURVIVORSHIP IN COMMON DISASTER CASES,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol38/iss6/3