damages recoverable in a minor`s personal injury action and a

DAMAGES RECOVERABLE IN A MINOR’S

PERSONAL INJURY ACTION AND A

MINOR’S WRONGFUL DEATH CLAIM

February 20, 2012

Lynne Jones Blain

Dannel C. Duddy

Editors

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ALABAMA

Sean W. Shirley

Joseph D. Leavens

Balch & Bingham LLP

Birmingham, Alabama

(205) 251-8100

Damages Recoverable in a Minor’s Personal Injury Action

I.

Economic Damages:

1.

Medical Expenses. ―A [parent] may recover as damages resulting from the negligent bodily injury of his minor child, medical expenses in treating such injuries...‖

Smith v. Richardson , 171 So. 2d 96, 100

(Ala. 1965).

2.

Future Medical Expenses. ―It is well established in this jurisdiction that future medical expenses are a proper element of damages in personal injury actions.‖

Ensor v. Wilson By and Through Wilson , 519

So. 2d 1244, 1273 (Ala. 1987).

3.

Nursing Services. ―When a parent loses time from his work or duties in caring for an injured child, the measure of damages recoverable for the parent is the value of the services in nursing or caring for the child.‖ Smith v. Richardson , 171 So. 2d 96, 100 (Ala. 1965).

4. Future Lost Wages. A child may recover for future lost earning capacity. See Collins v. Shelley By and Through Shelley , 514 So. 2d

1358, 1363 (Ala. 1987) (jury award upheld where minor son and father alleged permanent disability sufficient to imply impairment of earning capacity); Ensor v. Wilson , 519 So.2d 1244 (Ala. 1987) (upholding jury award for minor, including loss of earning capacity, where expert testimony established her injury, her highest earnings at minimum wage, her limited ability to work in a sheltered environment at onehalf the minimum wage, and the causal connection between the physical impairment and the reduced earning capacity).

5. Loss of Child Services.

―A [parent] may recover as damages resulting from the negligent bodily injury of his minor child…compensation for loss of services.‖

Smith v. Richardson , 171

So. 2d 96, 100 (Ala. 1965) ―[Loss of services] means the labor and assistance of a child rendered for the [parent], and impl[ies] a loss measured by pecuniary standards of value.‖ Id . See also Hannon v.

Duncan , 594 So.2d 85, 93 (Ala. 1992) (Stating the same definition of loss of child services, explaining that a plaintiff must establish the

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value of the services and holding that because plaintiff failed to demonstrate the pecuniary value of minor‘s chores around the house and lawn mowing no loss of child services damages were recoverable).

6. Loss of Society is NOT recoverable.

―The loss of society of a child as distinguished from the loss of his services cannot form the element of recoverable damages.‖

Smith v. Richardson , 171 So. 2d 96, 100 (Ala.

1965).

II.

Noneconomic Damages:

1. Physical Pain and Suffering. A child may recover pain and suffering and mental anguish damages for a personal injury. See Daniels v. East

Alabama Paving, Inc.

, 740 So. 2d 1033 (Ala. 1999); see also Wal-

Mart Stores, Inc. v. Dobson, By and Through Dobson , 709 So. 2d

1252, 1254 (Ala. Civ. App. 1998) (upholding $20,000 jury award for minor with head injury noting that ―the law is clear that there is no yardstick to measure the amount of recompense which should be awarded for pain or mental suffering.‖)

2. Punitive Damages. Like an adult, punitive damages are available if the defendant acted with fraud, malice, or wantonness which caused the injury to the child.

See Ala. Code § 6-11-20; see also Superskate,

Inc. v. Nolen by Miller , 641 So. 2d 231, 236 (Ala. 1994) (affirming

$25,000 past damages, $25,000 future damages, and $35,000 punitive damages where plaintiff daughter, by and through her mother, established the skating rink‘s willful and wanton conduct causing her injury).

III.

Model Jury Instructions: a.

Medical Expenses for Child APJI § 11.24 (2011 Supp.).

[Name of Plaintiff] says that [he/she] has bills for the medical care, treatment and services for [name of minor child] that [he/she] has paid or will have to pay and that [he/she] will have to pay in the future.

The measure of damages for medical expenses is:

All reasonable expenses for medical care, treatment, and services that [name of defendant]‘s conduct caused [name of plaintiff] to pay, or that [he/she] owes and will have to pay.

You must decide if the treatment is reasonably necessary, that the expenses for it are reasonable, and the need for the treatment is caused by [name of defendant]‘s conduct.

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*Note on Use – Use this instruction when the plaintiff father or mother, or spouse, claims damages for the medical expenses for the care of a minor child or their spouse. b.

Parent’s Nursing Services for Child

APJI § 11.25 (2011

Supp.).

[Name of plaintiff] claims damages for the nursing care [he/she] provided to [name of minor child].

The measure of damages for the nursing care for [name of minor child] is the reasonable monetary value of the services

You must decide if the services to [name of minor child] were necessary, the reasonably monetary value of the services, and if the need for the services was caused by [name of defendant‘s conduct].

* Note on Use –

A parent‘s lost time from work and lost wages are not compensable. c.

Loss of Services – Minor Child Temporary Disability APJI

11.26 (2011 Supp.)

[Name of plaintiff] says [he/she] lost the services of [name of minor child] because of [name of defendant]‘s conduct.

The measure of damages is the reasonably monetary value of

[name of child]‘s services.

You must decide the reasonable monetary value of [name of child]‘s services, and if the loss was caused by [name of defendant]‘s conduct.

*Note on Use – Use this instruction when a parent claims loss of the minor child‘s services. d.

Loss of Services – Minor Child Permanent Disability APJI

11.27 (2011 Supp.).

[Name of plaintiff] says that [name of minor child] is permanently harmed because of [name of defendant]‘s conduct and [name of plaintiff] has lost and will lose the child‘s services.

The measure of damages is the reasonable monetary value of

[name of child]‘s services until the child is 19 years old.

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You must decide if [name of child] was permanently harmed, the reasonable monetary value of the child‘s services, and if the loss was caused by [name of defendant]‘s conduct.

*Note on Use – Use this instruction when a child has a permanent injury and a parent claims the loss of the child‘s services.

Who ―owns‖ the right to sue for medical expenses? Parent or child? If parent does that end at the age of majority when it becomes child’s claim?

The parents, if living together, have a joint right to sue. If the parents are divorced or separated, and custody is vested in one parent over the other, or if a third party has legal custody of the child, the parent or individual with legal custody owns the right to sue for expenses for the minor‘s personal injuries.

See

Ala. Code § 6-5-390.

The claim becomes the minor‘s claim at the age of majority and they have two years to file. The statute of limitations for a negligence action is two years in

Alabama. See Ala. Code § 6-2-8.

In cases where the minor‘s parent claims damages extending beyond the age of majority the damages are split between the child and the parent. See

Williston v. Ard.

, 611 So.2d 274 (Ala. 1992). The parent is covered for expenses incurred prior to the age of majority and the minor receives damages for losses extending beyond the age of majority. In Williston the minor suffered irreversible brain damage during a routine appendectomy. Id . at 276. The minor sued by and through her mother for medical malpractice. Id . The Supreme Court upheld a

$4,500,000 damage award for the minor based on her future costs of care and her future lost wages. Id . at 283. The Court affirmed a separate damage award for the mother based on the value of her services in nursing her injured daughter. Id . at 283. The Court‘s remittitur as to the mother‘s damages was based on her failure to prove the loss of her child‘s services.

Id . The Court upheld the remainder of the mother‘s damages based on past medical expenses paid.

Id .

Damages Recoverable in a Minor Wrongful Death Claim

The parents or the personal representative may bring suit on behalf of the deceased minor child and only punitive damages are recoverable. See Ala. Code

§§ 6-5-391, 6-5-410.

I. Wrongful Death of a Minor (who may bring suit)

Ala. Code § 6-5-391 provides:

(a) When the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation, or the servants or agents of either, the father, or the mother as specified in

Section 6-5-390, or, if the father and mother are both dead or if they

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decline to commence the action, or fail to do so, within six months from the death of the minor, the personal representative of the minor may commence an action.

(b) An action under subsection (a) for the wrongful death of the minor shall be a bar to another action either under this section or under

Section 6-5-410.

(c) Any damages recovered in an action under this section shall be distributed according to the laws of intestate succession, Article 3

(commencing with Section 43-8-40) of Chapter 8 of Title 43.

II. Wrongful Death Damages

In a wrongful death action, ―the only damages recoverable are punitive in nature, and the amount thereof is determined by the gravity of the wrong done, the propriety of punishing the wrongdoer, and the need for deterring others from committing the same or similar wrongful conduct.‖

Estes Health Care Centers,

Inc. v. Bannerman , 411 So. 2d 109, 112 (1982). ―Ordinarily, in a wrongful-death action, mental suffering of family members is not compensable.‖

Daniels v. East

Alabama Paving, Inc.

, 740 So. 2d 1033, 1048 (Ala. 1999).

Ala. Code § 6-5-410 – Wrongful Death Statute – provides:

(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons or corporation, his or their servants, or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.

(b) Such action shall not abate by the death of the defendant, but may be revived against his personal representative and may be maintained though there has not been prosecution, conviction or acquittal of the defendant for the wrongful act, omission, or negligence.

(c) The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions.

(d) Such action must be commenced within two years from and after the death of the testator or intestate.

III. Model Jury Instruction:

Wrongful Death APJI 11.28 (2011 Supp.).

This is a claim for the wrongful death of [name of decedent].

The damages in this case are punitive and not compensatory.

Punitive damages are awarded to preserve human life, to punish

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[name of defendant] for [his/her/its] wrongful conduct, and to deter or discourage [name of defendant] and others from doing the same or similar wrongs in the future.

The amount of damages must be directly related to [name of defendant]‘s culpability, and by that I mean how bad [his/her] wrongful conduct was. You do not consider the monetary value of

[name of decedent]‘s life because the damages are not to compensate [name of plaintiff] or [name of decedent]‘s family from a monetary standpoint because of his or her death.

The amount you award is within your discretion based on the evidence and the guidelines in this instruction.

*Note on Use – Use this instruction in all claims for wrongful death.

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ALASKA

Brian R. Cannon

Harman, Claytor, Corrigan & Wellman

Richmond, Virginia

(804) 747-5200


I.


1.

Medical Expenses. The parents own the right of recovery for medical expenses of a minor, absent an implied waiver by failing to object when the minor seeks the damages or by testifying on behalf of the minor. Alaskan Village, Inc. v. Smalley , 720 P.2d 945, 950 (Alaska

1986).

2.

Future Medical Expenses. Future medical expenses are appropriate for compensation. Such damages must be proven with a ―reasonable probability‖ that they will occur in the future.

Pluid v. B.K.

, 948 P.2d

981, 984 (Alaska 1997). Once the existence of future medical expenses (or any other damages) has been proven to that standard, then the amount of those damages need only be proven at a level that affords the fact finder an ability to make a reasonable estimate of the damages. Id .

3. Future Lost Wages.

―Impairment of earning capacity‖ is a more accurate calculation of damages for future lost wages than simply ―lost earnings.‖

Morrison v. State of Alaska , 516 P.2d 402, 404 (Alaska

1973). This category is also related to life expectancy estimates. In the same case, the Supreme Court of Alaska found that a mortality table is not binding on a court, but deviation from it must be accounted for by some specific evidence presented at trial. Id . at 406.

II.

Non-economic Damages:

1. Physical Pain and Suffering, Etc. Alaska allows for the recovery of pain and suffering and other non-economic losses. These are covered broadly in Instruction 20.06 (below).

Specifically, tort reform has limited the recovery of non-economic damages to the greater of $400,000 or $8,000 times the life expectancy of the injured/deceased. AS § 09.17.010(b). This cap applies to both personal injury and wrongful death claims. This restriction was upheld in 2002 by the Supreme Court of Alaska. Evans ex rel. Kutch v. State ,

56 P.3d 1046 (Alaska 2002).

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In cases of severe or permanent physical injury/disfigurement, the cap is greater of $1,000,000 or $25,000 multiplied by the plaintiff's life expectancy. AS § 09.17.010(c).

2. Punitive Damages. Punitive damages are available to minor if the conduct was done with malice, was outrageous, or evidenced reckless indifference to the interest of another. AS § 09.17.20(b). Tort reform placed limits on recovery for these damages in a complex fashion that depends on the size of the company and various multipliers.

Generally, the cap is around $500,000. AS § 09.17.020.

III.

Jury Instructions:

20.02A PAST MEDICAL EXPENSES

The (first, second, etc.) item of economic loss claimed by the plaintiff is the reasonable expense of necessary medical care from (insert date of the accident) to (insert date of trial)]. [In fixing this amount, "medical care" includes: (insert any claimed services or items which the Court determines are "medical care", such as nursing care, drugs, etc.).]

20.02B FUTURE MEDICAL EXPENSES

The (first, second, etc.) item of economic loss claimed by the plaintiff is the reasonable expense of necessary medical care reasonably probable to be received in the future. In order to award damages for a future medical expense, you must find that

(1) the expense is reasonably necessary;

(2) the expense is reasonably certain to occur; and

(3) the evidence provides you with a reasonable basis for estimating the amount of the expense.

[In deciding how long the plaintiff may have medical expenses in the future you may need to consider (his) (her) current life expectancy.]

[In fixing this amount, "medical care" includes: (insert any claimed services or items which the Court determines are "medical care", such as nursing care, drugs, etc.).]

20.03 PAST EARNINGS

The (first, second, etc.) item of economic loss claimed by the plaintiff is the value of (work time) (earnings) (profits) (salaries) lost by the plaintiff from the (insert date of the accident) to (insert date of trial). To calculate

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this amount, you must deduct federal [and state] income taxes that would have been paid.

20.04 LOSS OF FUTURE EARNING CAPACITY

The (first, second, etc.) item of economic loss claimed is the reduction in the ability of the plaintiff to earn money in the future.

You may award the plaintiff a fair amount for any reduction in future ability to earn money that (he) (she) is reasonably probable to experience.

To calculate this amount, you must determine the difference between the plaintiff's ability to earn money before the injury and (his) (her) ability to earn money after the injury. To do this you may consider the plaintiff's health, physical and mental abilities; (his) (her) work habits and occupation before the accident; the nature and extent of (his) (her) injuries; and how long and to what extent (his) (her) injuries will affect (his) (her) earning ability in the future. Your calculation of the plaintiff's ability to earn money before the injury must be based on the plaintiff's life expectancy before the injury occurred.

To decide the plaintiff's earning ability, both before and after the injury, you may consider the wages (he) (she) earned before and after the injury and any reasonably probable increases in those wages due to promotions or automatic step increases. You must not make any deduction for any future income taxes [, and you must not consider any pay increases due to increases in the cost of living].

20.05 INFLATION AND PRESENT VALUE/FUTURE ECONOMIC

LOSSES

Plaintiff claims that (he) (she) will have economic losses in the future, consisting of [future medical expenses] [and] [loss of future earning capacity]. I will now instruct you on two principles you must apply to calculate an award for a future economic loss.

The first principle is that an award for future economic loss must account for the effect that any future inflation would have on the amount of the future economic loss. [Any award for future medical expenses must be based on the cost of the medical expenses when they are incurred in the future.] [Any award for future loss of earning capacity must account for reasonably probable increases in wages due to inflation.]

The second principle is that any award that you make for future economic loss must be equal to the amount of money that the plaintiff would need to invest today so that the total of the amount invested today plus future investment earnings equals the amount of the future economic loss when it will occur in the future. To make this calculation, you must make three

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assumptions: (1) that the money you award to the plaintiff for a future economic loss would be available to (him) (her) today; (2) that the plaintiff would invest the money immediately; and (3) that the plaintiff would invest the money in investments that would pay the long-term future interest rates that would be obtained in the best and safest investments.

Use Note

This instruction must be given whenever the plaintiff claims a future economic loss in a personal injury case, and where the parties have not agreed pursuant to AS 09.17.040(c) to compute damages under the Beaulieu rule. If the parties have agreed to use the Beaulieu rule, this instruction should not be given.

The appropriate bracketed language in the second paragraph should be used depending upon whether the plaintiff claims future medical expenses, loss of future earning capacity or both.

Comment

In personal injury cases, AS 09.17.040(b) requires the fact finder to reduce future economic damages to present value, and to consider the effect of future anticipated inflation. This instruction is intended to convey these concepts to the jury.

20.06 NON-ECONOMIC LOSSES

The (first, second, etc.) item of loss claimed by the plaintiff is for noneconomic losses. You may award the plaintiff a fair amount to compensate the plaintiff for [pain and suffering] [loss of enjoyment of life]

[disfigurement] [physical impairment] [and] [inconvenience] resulting from the injury. Such an award should fairly compensate the plaintiff for the noneconomic losses (he) (she) has experienced from the date of the injury until the date of trial [and for non-economic losses that (he) (she) is reasonably probable to experience in the future]. [In deciding how long the plaintiff may experience such losses in the future, you may need to consider (his)

(her) current life expectancy.]

The law does not establish a definite standard for deciding the amount of compensation for non-economic losses, and the law does not require that any witness testify as to the dollar value of non-economic losses. You must exercise your reasonable judgment to decide a fair amount in light of the evidence and your experience.

* NOTE: This instruction replaces former instructions on physical impairment and pain and suffering.

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20.07M LIMIT ON NON-ECONOMIC DAMAGES – SEVERE

PERMANENT PHYSICAL IMPAIRMENT

Plaintiff claims that the defendant's conduct caused him/her to have a severe permanent physical impairment. The plaintiff has a severe permanent physical impairment if he/she has a physical condition that substantially and permanently limits one or more of his/her major life activities. Major life activities include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

20.07N LIMIT ON NON-ECONOMIC DAMAGES – SEVERE

DISFIGUREMENT

Plaintiff claims that he/she was severely disfigured because of the defendant's conduct. The plaintiff had a severe disfigurement if a reasonable person would find that after passage of a reasonable healing period, the plaintiff had an injury that marred his/her physical appearance and caused a degree of unattractiveness sufficient to bring negative attention or embarrassment.

20.10 FUTURE DAMAGES - NO REDUCTION TO PRESENT

VALUE

As I have instructed you, you may decide it is reasonably probable that the plaintiff will have some future [non-economic] losses resulting from the

(accident). In fixing an amount for future [non-economic] losses, you must disregard the fact that any amount you award the plaintiff may be paid before the actual loss occurs. You must also disregard the fact that the value of money may change over time.

20.11 AGGRAVATION OF PRE-EXISTING CONDITION OR

DISABILITY

A person who has a condition or disability at the time of an injury cannot recover damages for that condition or disability. However, (he) (she) is entitled to recover damages for an aggravation of such pre-existing condition or disability if the aggravation is the legal result of the injury.

This is true even if the person's condition or disability made (him) (her) more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury. In other words, the law provides that a defendant takes the plaintiff as (he) (she) (it) finds (him) (her) (it).

Where a pre-existing condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional damages caused by the aggravation.

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20.12 ADDITIONAL HARM RESULTING FORM ORIGINAL

INJURY

If you find the defendant is legally responsible for the (accident), you may award the plaintiff, in addition to compensation for losses resulting from the original injury, (his) (her) losses resulting from:

1. [Aggravation of the original injury resulting from the failure of (insert name or the word "others") to use reasonable care in providing medical or hospital treatment of the original injury.]

2. [Aggravation of the original injury resulting from the failure of (insert name or the word "others") to use reasonable care in transporting the plaintiff to a place where medical treatment is available.]

20.13 LIFE EXPECTANCY

In fixing the amount of compensation for some items of loss you may have to decide the life expectancy of the plaintiff, [either] [as it was prior to the accident] [and] [or] [what it is now after the accident]. I will now explain how you are to do this.

You have available as evidence what is called a table of mortality.

According to the table, the life expectancy of a (male) (female) person aged

(insert plaintiff's age) is (insert number from table) years. The table tells you the average life expectancy of persons of a particular age and sex. Many persons live longer and many die sooner than the average.

You should assume the figure in the table represents the probable life expectancy of the plaintiff unless there is other evidence such as (his) (her) occupation, health, family history, habits, and other activities from which you can reasonably conclude that the plaintiff's life expectancy is longer or shorter than average.


The parent has the primary right of action for past medical expenses on behalf of an un-emancipated minor. However, this right may be waived by the parent. If the parent fails to object to the infant‘s seeking those damages or if the parent testifies on the child‘s behalf in the case, then the parent is deemed to have impliedly waived a claim to those damages. Alaskan Village, Inc. v. Smalley , 720

P.2d 945, 950 (Alaska 1986).

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Damages Recoverable in a Minor’s Wrongful Death Action

I. Who May Recover

In a wrongful death action of a child below the age of majority, the parents or personal representative of the child may bring a claim (provided the minor has no dependents). AS § 09.55.570. If there are no statutory beneficiaries surviving, then the estate of the deceased minor may bring the action. Kulawik v.

ERA Jet Alaska , 820 P.2d 627 (Alaska 1991).

II. Statute – Damages Recoverable

Alaska Code § 09.55.570 – Action for Wrongful Death – provides:

(a) Except as provided under (f) of this section and AS 09.65.145, when the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had the person lived, against the latter for an injury done by the same act or omission. The action shall be commenced within two years after the death, and the damages therein shall be the damages the court or jury may consider fair and just. The amount recovered, if any, shall be exclusively for the benefit of the decedent's spouse and children when the decedent is survived by a spouse or children, or other dependents. When the decedent is survived by no spouse or children or other dependents, the amount recovered shall be administered as other personal property of the decedent but shall be limited to pecuniary loss. When the plaintiff prevails, the trial court shall determine the allowable costs and expenses of the action and may, in its discretion, require notice and hearing thereon. The amount recovered shall be distributed only after payment of all costs and expenses of suit and debts and expenses of administration.

(b) The damages recoverable under this section shall be limited to those which are the natural and proximate consequence of the negligent or wrongful act or omission of another.

(c) In fixing the amount of damages to be awarded under this section, the court or jury shall consider all the facts and circumstances and from them fix the award at a sum which will fairly compensate for the injury resulting from the death. In determining the amount of the award, the court or jury shall consider but is not limited to the following:

(1) deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries, without regard to age thereof, that would have resulted from the continued life of the deceased and without regard to probable accumulations or what the deceased may have saved during the lifetime of the deceased;

(2) loss of contributions for support;

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(3) loss of assistance or services irrespective of age or relationship of decedent to the beneficiary or beneficiaries;

(4) loss of consortium;

(5) loss of prospective training and education;

(6) medical and funeral expenses.

(d) The death of a beneficiary or beneficiaries before judgment does not affect the amount of damages recoverable under this section.

(e) The right of action granted by this section is not abated by the death of a person named or to be named the defendant.

(f) A person whose act or omission constitutes the felonious killing of another person may not recover damages for the death of that person either directly or as a personal representative of that person's estate. In this subsection, a

"felonious killing" means a crime defined by AS 11.41.100 - 11.41.140.

III. Jury Instructions

04.05A WRONGFUL DEATH ACTION

IDENTIFICATION OF STATUTORY BENEFICIARIES

–

In this case, (insert name of claimant(s)) (is) (are) (claim(s) to be) the statutory beneficiar(y)(ies) of the deceased.

[I shall use the word "beneficiar(y)(ies)" to refer to (this) (these) claimant(s).]

[You must decide if (insert name of claimant(s)) qualif(y)(ies) as beneficiar(y)(ies) of the deceased. (You must make this decision separately for each claimant.) Will now tell you how to decide if the claimant(s) qualif(y)(ies) as beneficiar(y)(ies). (You may find that more than one person qualifies as a beneficiary.)]

[The deceased's (wife) (husband) qualifies as a beneficiary.

Therefore, if you find that (insert name of claimant) was legally married to the deceased at the date of death, then (insert name of claimant) is a beneficiary.]

[A child of the deceased qualifies as a beneficiary. Therefore, if you find that (insert name of claimant) is the biological or legally adopted child of the deceased, then (insert name of claimant) is a beneficiary.]

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[A person who was a "dependent" of the deceased at the time of death qualifies as a beneficiary. For a claimant to qualify as a dependent, you must find that it is more likely true than not true:

(1) that the claimant was a close relative to the decedent or, at the time of decedent's death, occupied a position similar to that of a close relative; and

(2) that the deceased made significant contributions of support upon which the claimant was actually dependent at the time of deceased's death; and

(3) that these contributions would have continued, had the deceased live. In deciding whether the contributions would have continued, you may consider, among other things, the length of time the deceased had made the contributions of support.]

[If you find that (insert name of claimant(s)) qualif(y)(ies) as beneficiar(y)(ies), you should include (him) (her) (them) when considering Instructions No. ______ applicable to beneficiaries.]

[If you find that none of the claimants qualify as beneficiaries, the plaintiff may still maintain this lawsuit for the benefit of the deceased's estate. Then, if you find that the plaintiff is entitled to win this lawsuit, in calculating the amount of compensation, you should refer only to Instruction No. _____ and not to Instruction

No. _____.]

04.05B WRONGFUL DEATH — RECOVERY BY

STATUTORY BENEFICIARIES

If you decide that the defendant is legally responsible for the death of the deceased, you must decide what amount of money will fairly and justly compensate (each)(the) beneficiary for the harm caused by the death of the deceased. [You must state separately the amount for each beneficiary.]

I will now list for you each item of loss claimed [by each beneficiary]. [Insert list.]

(1)

(2)

(3)

. . . .

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You may not assume because I list an item of loss or explain how to measure a particular loss that you are required to award damages for that loss. For each item of claimed loss, you must decide whether it is more likely true than not true that:

(1) that the beneficiary had such a loss or is reasonably probable to have such a loss in the future; and

(2) that the loss was legally caused by the conduct of the defendant which forms the basis of your verdict.

If both of these things are true, then you must decide how much money will fairly compensate the beneficiary for that item of loss.

If one or both of these things are not true with respect to a particular item of loss, you may not make an award for that loss.

04.06A

SUPPORT

WRONGFUL DEATH DAMAGES – PAST LOSS OF

The first item of claimed loss is the past loss of contributions for support that (the) (each) beneficiary could have reasonably expected to receive from the deceased from the date of death to the date of trial, (insert date), had the deceased continued to live.

In fixing this amount, you may consider, along with other evidence, the amount of money the deceased would have had available to provide contributions for support; the willingness of the deceased to provide contributions for support; the extent of the support contributions customarily provided by the deceased in the past; the support contributions reasonably expected to be provided by a (insert relationship of deceased to the beneficiary/ies, e.g., husband to his wife and children); and how long

(the) (each) beneficiary would have received such contributions for support. You may consider the contributions for support (the) (each) beneficiary would have received from the deceased even though the deceased may not have been legally required to provide support.

To determine how much money the deceased would have had available from which to provide contributions for support, you should do the following: Compute the amount the deceased could have earned had (he)

(she) lived from the date of death to the date of trial, (insert date). I will explain in a few minutes how to compute the amount the deceased could have earned. Subtract from that figure the income taxes the deceased would have paid on those earnings. Then subtract the amount the deceased would have spent on (himself) (herself) during that period, had

(he) (she) lived. The remaining amount is what the deceased would have had available to contribute for support.

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04.06B WRONGFUL DEATH DAMAGES — FUTURE LOSS OF

SUPPORT

The second item of claimed loss is the future loss of contributions for support that (the) (each) beneficiary could have reasonably expected to received from the deceased from the date of death to the date of trial,

(insert date), to the end of the deceased's nature life expectancy, had the deceased continued to live.

In fixing this amount, you may consider, along with other evidence, the amount of money the deceased would have had available to provide contributions for support; the willingness of the deceased to provide contributions for support; the extent of the support contributions customarily provided by the deceased in the past; the support contributions reasonably expected to be provided by a (insert relationship of deceased to the beneficiary/ies, e.g., husband to his wife and children); and how long

(the) (each) beneficiary would have received such contributions for support. You may consider the contributions for support (the) (each) beneficiary would have received from the deceased even though the deceased may not have been legally required to provide support.

To determine how much money the deceased would have had available to provide future contributions for support, you should do the following:

Compute the amount the deceased could have earned from the date of trial, (insert date), to the end of (his) (her) natural life expectancy. I will explain in a few minutes how to compute the amount the deceased could have earned. Do not subtract any amount for payment of future income taxes. Do subtract the amount the deceased would have spent on (himself)

(herself) had (he) (she) lived to the end of (his) (her) natural life expectancy. The remaining amount is what the deceased would have had available to contribute to future support.

[Any award for future loss of contributions for support must be reduced to present cash value. I will explain in a few minutes the meaning of present cash value and how to reduce to present cash value.]

04.07 WRONGFUL DEATH DAMAGES

—

LOSS OF

ASSISTANCE OR SERVICES

The items of claimed loss are the fair value of the assistance or services that the deceased reasonably could have been expected to give to (the)

(each) beneficiar(y)(ies) if the deceased had continued to live, even though the deceased was under no legal obligation to provide such assistance or services.

In fixing this amount for each individual beneficiary, you may consider, along with the evidence, the willingness of the deceased to provide

18

assistance or services; the nature of the assistance or services customarily provided by the deceased; the assistance or services reasonably expected to be provided by a (insert relationship of deceased to the beneficiar(y)(ies), e. g., husband to his wife, mother to her adult son); and how long the deceased would have provided such assistance or services.


–

LOSS OF

CONSORTIUM

The item of claimed loss is the fair value of society, comfort, care, protection, affection and companionship that the deceased reasonably could have been expected to provide to (the) (each) beneficiary if the deceased had continued to live.

In fixing this amount for each individual beneficiary, you may consider, along with other evidence, the closeness and harmony of the relationship between the deceased and (the) (each) beneficiary and the willingness of the deceased to participate in activities with (the) (each) beneficiary.


—

LOSS OF

PROSPECTIVE TRAINING AND EDUCATION

The item of claimed loss is the fair value of prospective advice, education, and training that the deceased reasonably could have been expected personally to give if the deceased had continued to live.

In fixing this amount for each individual beneficiary, you may consider, along with other evidence, the ability and willingness of the deceased to impart such skill or knowledge to (the) (each) beneficiary.

04.10 WRONGFUL DEATH DAMAGES — MEDICAL AND

FUNERAL EXPENSES

The item of claimed loss is the reasonable medical and funeral expenses which resulted from the injury or death of the deceased.

04.11 WRONGFUL DEATH DAMAGES — PAIN AND

SUFFERING OF BENEFICIARY

The item of claimed loss is a fair amount to compensate (the) (each) beneficiary for the sorrow, mental distress and grief that (he) (she) (they) have suffered because of the death of the deceased.

*Note, it must be a statutory beneficiary

19

ARIZONA

John Merrick



(804) 747-5200


I. Economic Damages:

1. Medical Expenses. Both the minor and the minor‘s parents are entitled to recover pre-majority medical expenses, but double recovery is not permitted. Estate of Desala v. Prescott Unified

School District No. 1, 226 Ariz. 387, 249 P.3d 767 (2011)

(overruling Pearson & Dickerson Contractors, Inc. v. Harrington ,

60 Ariz. 354, 137 P.2d 381 (1943) and S.A. Gerard Co. v. Couch ,

43 Ariz. 57, 29 P.2d 151 (1934). Children may recover postmajority medical expenses. Id.

2. Future Medical Expenses. A child may recover for future medical expenses. See City of Yuma v. Evans , 85 Ariz. 229, 336

P.2d 135 (1959).

3. Nursing Services. A child may recover for future hospital or nursing expenses. See City of Yuma v. Evans , 85 Ariz. 229, 336

P.2d 135 (1959). A parent may recover for the lost time away from work to care for an injured child, medical expenses incurred in caring for the child, and other provision of care costs, although the injury, pain and suffering, etc. belong to the minor child.

Sheppard v. Crow-Barker Paul No. 1, LP , 192 Ariz. 539, 549, ¶

58, 968 P.2d 612, 622 (App. 1998).

4. Lost Wages. Past and future lost wages are an appropriate measure of damages under Arizona law. Felder v. Physiotherapy

Associates, 215 Ariz. 154, 158 P. 3d 877 (2007); Lewis v. N.J.

Riebe Enterprises, Inc., 170 Ariz. 384, 825 P.2d 5 (1992).

5. Loss of Child’s Services. Parent being entitled to minor child's services and earnings, infant suing for personal injuries cannot ordinarily recover for impairment of his earning capacity during infancy. S. A. Gerrard Co. v. Couch , 43 Ariz . 57, 29 P.2d

151(1934).

20

II. Noneconomic Damages:

1. Physical Pain and Suffering. Children may recover pain and suffering. Estate of Desala v. Prescott Unified School District No.

1, 226 Ariz. 387, 249 P.3d 767 (2011). Children may recover for future pain and mental anguish. See City of Yuma v. Evans , 85

Ariz. 229, 336 P.2d 135 (1959).

2. Loss of Consortium. Parents may maintain a cause of action for loss of their child's consortium when the child suffers severe, permanent and disabling injury that substantially interferes with child's capacity to interact with parents in a normally gratifying way; however, the injury need not be the functional equivalent of death or even be categorized as ―catastrophic.‖ Whether the threshold of a significant interference with the normal relationship between parent and child has been met is a question of law for the judge to determine. Once the judge finds that the child's injuries are sufficiently severe to warrant a cause of action for loss of consortium, the trier of fact determines the question of recovery or the amount recoverable based on the degree of that interference.

Pierce v. Casas Adobes Baptist Church, 162 Ariz. 269, 782 P.2d

1162 (1989). Cause of action for loss of consortium is limited to spouses, parents and children. Kaufman v. Langhofer , 223 Ariz.

249, 222 P.3d 272 (2009). Parents can recover damages for loss of their child‘s consortium regardless of the age of the child.

Burnham v. Miller , 193 Ariz. 312, 972 P.2d 645 (1998).

3. Punitive Damages. Punitive damages are available in Arizona.


Revised Arizona Jury Instructions (Civil) 4 th

: Personal Injury

Damages 1

If you find [any] [ name of defendant ] liable to [ name of plaintiff ], you must then decide the full amount of money that will reasonably and fairly compensate [ name of plaintiff ] for each of the following elements of damages proved by the evidence to have resulted from the fault of [ any ] [ name of defendant ] [party] [person]:

1.

The nature, extent, and duration of the injury.

2. The pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced, and reasonably probable to be experienced in the future as a result of the injury.

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3. Reasonable expenses of necessary medical care, treatment, and services rendered, and reasonably probable to be incurred in the future.

4. Lost earnings to date, and any decrease in earning power or capacity in the future.

5. Loss of love, care, affection, companionship, and other pleasures of the [marital] [family] relationship.

6. Loss of enjoyment of life, that is, the participation in life‘s activities to the quality and extent normally enjoyed before the injury.



Damages 4.

If you find [ name of defendant ] liable to [ name of plaintiff ], you may consider assessing additional damages to punish [ name of defendant ] or to deter [ name of defendant ] and others from similar misconduct in the future. Such damages are called ―punitive‖ or ―exemplary‖ damages.

To recover such damages, [ name of plaintiff ] has the burden of proving by clear and convincing evidence, either direct or circumstantial, that [ name of defendant ] acted with an evil mind. This required state of mind may be shown by any of the following:

1. Intent to cause injury; or

2. Wrongful conduct motivated by spite or ill will; or

3. [ Name of defendant ] acted to serve his own interests, having reason to know and consciously disregarding a

4. substantial risk that his conduct might significantly injure the rights of others.]

[[ Name of defendant ] consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.]

To prove this required state of mind by clear and convincing evidence,

[ name of plaintiff ] must persuade you that the punitive damages claim is highly probable. This burden of proof is more demanding than the standard of more probably true than not true, which applies to all other claims in this case, but it is less demanding than the standard of proof beyond a reasonable doubt, which is used in criminal cases.

22

The law provides no fixed standard for the amount of punitive damages you may assess, if any, but leaves the amount to your discretion.

[However, if you assess punitive damages, you may consider the character of [ name of defendant

]‘s conduct or motive, the nature and extent of the harm to plaintiff that [ name of defendant ] caused, and the nature and extent of defendant‘s financial wealth.]

Source: 1. Elements of Punitive Damages: Volz v. Coleman Co., Inc.

, 155

Ariz. 567, 748 P.2d 1191 (1987); Gurule v. Illinois Mut. Life & Cas. Co.

,

152 Ariz. 600, 734 P.2d 85 (1987); Hawkins v. Allstate Ins.

Co.

, 152 Ariz.

490, 733 P.2d 1073 (1987); Rawlings v. Apodaca , 151 Ariz. 149, 726 P.2d

565 (1986); Linthicum v. Nationwide Life Ins. Co.

, 150 Ariz. 326, 723

P.2d 675 (1986); Bradshaw v. State Farm Mut.

Auto. Ins.

, 157 Ariz. 411,

758 P.2d 1313 (Ct. App. 1988).

Who ―owns‖ the right to sue for medical expenses? Parent or child? If parent, does that end at the age of majority when it becomes child’s claim?

Both the minor and the minor‘s parents are entitled to recover pre-majority medical expenses, but double recovery is not permitted. Estate of Desala v.

Prescott Unified School District No. 1, 226 Ariz. 387, 249 P.3d 767 (2011)

(overruling Pearson & Dickerson Contractors, Inc. v. Harrington , 60 Ariz. 354,

137 P.2d 381 (1943) and S.A. Gerard Co. v. Couch , 43 Ariz. 57, 29 P.2d 151

(1934).



A. R. S § 12-612. Parties plaintiff; recovery; distribution

A. An action for wrongful death shall be brought by and in the name of the surviving husband or wife, child, parent or guardian, or personal representative of the deceased person for and on behalf of the surviving husband or wife, children or parents, or if none of these survive, on behalf of the decedent's estate.

B. Either parent may maintain the action for the death of a child, and the guardian may maintain the action for the death of the guardian‘s ward.

C. The amount recovered in an action for wrongful death shall be distributed to the parties provided for in subsection A in proportion to their damages, and if recovery is on behalf of the decedent's estate the amount shall be an asset of the estate.

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D. For the purposes of subsection A, "personal representative" includes any person to whom letters testamentary or of administration are granted by competent authority under the laws of this or any other state. The personal representative may maintain the action for wrongful death without the issuance of further letters or any other requirement or authorization of law.

II. Damages Recoverable

A. R. S § 12-613. Measure of damages; nonliability for debts of decedent.

In an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default. The amount recovered in such action shall not be subject to debts or liabilities of the deceased, unless the action is brought on behalf of the decedent's estate.

Other

1. Loss of Consortium. In Arizona, parents may recover loss of consortium claims for the wrongful death of their child, as well as children for the loss of their parents. Reben v. Ely , 146 Ariz. 309, 705

P.2d 1360 (1985).

2. Loss of Probability of Inheritance. Arizona recognizes the loss of probability of inheritance.

Salinas v. Kahn , 2 Ariz.App. 181, 407 P.2d

120 (App. 1965). Although no case has addressed the loss of probability of inheritance from a minor under the wrongful death statutes, this is compensable under the Employers‘ Liability Law.

Pacific Gas & Elec. Co. v. Almanzo , 22 Ariz. 431, 198 P. 457 (1921).

3. Grief, Pain, Suffering. Grief, pain, and suffering are recoverable by all statutory beneficiaries in a wrongful death action. Vasquez v. State ,

220 Ariz. 304, 206 P.3d 753 (2008).

24

III. Jury Instruction



Damages 3

If you find [ name of defendant ] liable to [ name of plaintiff ], you must then decide the full amount of money that will reasonably and fairly compensate [name of each survivor] [separately] for each of the following elements of damages proved by the evidence to have resulted from the death of [ name of decedent ].

1. The loss of love, affection, companionship, care, protection, and guidance since the death and in the future.

2.

The pain, grief, sorrow, anguish, stress, shock, and mental suffering already experienced, and reasonably probable to be experienced in the future.

3.

The income and services that have already been lost as a result of the death, and that are reasonably probable to be lost in the future.

4.

The reasonable expenses of funeral and burial.

5. The reasonable expenses of necessary medical care and services for the injury that resulted in the death.

Source: A.R.S. § 12-613; City of Tucson v. Wondergem , 105 Ariz. 429,

466 P.2d 383 (1970); Jeffery v. United States , 381 F. Supp. 505 (Ariz.

1974); Salinas v. Kahn , 2 Ariz. App. 181, 407 P.2d 120 (1965).

*Note on Use – Depending on the evidence in the case, some of the elements in paragraphs 1 and 2 may be inapplicable or cumulative, and the elements listed in paragraphs 3, 4, and 5 may be inapplicable. Customize the instruction to fit the case.

25

ARKANSAS

Charles Clay

Christopher Bird

Jennifer Harbaugh

Weinberg, Wheeler, Hudgins, Gunn & Dial

Atlanta, Georgia

(404) 876-2700



1. Property Damages . Property damages are generally recoverable in

Arkansas.

2. Medical and Other Related Expenses . A party seeking medical damages has the burden of proving the reasonableness and necessity for that party's medical expenses. Avery v. Ward, 326 Ark. 829, 833,

934 S.W.2d 516, 519 (1996). However, expert medical testimony is not essential in every case to prove the reasonableness and necessity of medical expenses. Volunteer Transp., Inc. v. House, 357 Ark. 95, 104,

162 S.W.3d 456, 461 (2004)

3.

Loss of Wages or Wage-Earning Capacity . It is settled law that past and future earnings or profits lost because of personal injuries are recoverable as damages. Ishie v. Kelley , 302 Ark. 112, 114, 788

S.W.2d 225, 226 (1990); see also Lopez v. Waldrum Estate, 249 Ark.

558, 460 S.W.2d 61 (1970) (probable loss of earning capacity after majority is recoverable by a minor and a parent is also entitled to recover for the minor's earning capacity during minority).

II. Non-economic Damages:

1. Hedonic Damages . The scope of compensation for future pain and suffering is broad enough to encompass ―hedonic damages.‖

See RLI

Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991) (the court, in affirming an award of $8,000,000, referred to the victim's inability to participate in activities, the change in life-style, the need for future surgery, limited employment opportunities, and pain and suffering);

Vaccaro Lumber v. Fesperman, 100 Ark. App, 267, 267 S.W.3d 619

(2007) (finding that evidence did not support jury's award of ten times the amount of special damages when the plaintiff testified that she still carried on with her normal activities and did everything that she did before the accident).

2. Disfigurement . Recoverable damages include scars and disfigurement. See St. Joseph's Mercy Health Ctr. v. Edwards, 2011

26

Ark. App. 560, ____ S.W.3d ____ (2011) (noting that in determining whether the amount of damages is so great as to shock the conscience of this court, the court considers, among other things, scars resulting in disfigurement)

3. Loss of Use of Limb . The loss of use of a limb is a recoverable expense. See Perkins Oil Co. v. Fitzgerald, 197 Ark. 14, 121 S.W.2d

877, 886 (1938) ("The recovery, of course, should compensate for pain and suffering, for humiliation and the anguish on account of the loss of limbs, the impaired earning capacity, as well as the increased expense of living occasioned by the injury"); Gaster v. Hicks, 181 Ark. 299, 25

S.W.2d 760, 765 (1930) (stating that the embarrassment and humiliation from the maimed limb was an element of damages to be considered by the jury).

4. Punitive Damages . Arkansas Code Annotated § 16-55-206 provides that punitive damages may be awarded in the following circumstances:

In order to recover punitive damages from a defendant, a plaintiff has the burden of proving that the defendant is liable for compensatory damages and that either or both of the following aggravating factors were present and related to the injury for which compensatory damages were awarded:

(1) The defendant knew or ought to have known, in light of the surrounding circumstances, that his or her conduct would naturally and probably result in injury or damage and that he or she continued the conduct with malice or in reckless disregard of the consequences, from which malice may be inferred; or

(2) The defendant intentionally pursued a course of conduct for the purpose of causing injury or damage.

The Plaintiff has the burden of proving these elements by clear and convincing evidence. See Ark. Code Ann. § 16-55-207. Additionally, punitive damages are capped as provided in Arkansas Code Annotated

§ 16-55-208:

(a) Except as provided in subsection (b) of this section, a punitive damages award for each plaintiff shall not be more than the greater of the following:

(1) Two hundred fifty thousand dollars ($250,000); or

(2) Three (3) times the amount of compensatory damages awarded in the action, not to exceed one million dollars

($1,000,000).

27

(b) Subsection (a) of this section shall not apply when the finder of fact:

(1) Determines by clear and convincing evidence that, at the time of the injury, the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage; and

(2) Determines that the defendant's conduct did, in fact, harm the plaintiff.

(c) As to the punitive damages limitations established in subsection (a) of this section, the fixed sums of two hundred fifty thousand dollars ($250,000) set forth in subdivision (a)(1) of this section and one million dollars ($1,000,000) set forth in subdivision (a)(2) of this section shall be adjusted as of January

1, 2006, and at three-year intervals thereafter, in accordance with the Consumer Price Index rate for the previous year as determined by the Administrative Office of the Courts.

Arkansas law also provides for a bifurcated proceeding upon request:

(a)(1) In any case in which punitive damages are sought, any party may request a bifurcated proceeding at least ten (10) days prior to trial.

(2) If a bifurcated proceeding has been requested by either party, then:

(A) The finder of fact first shall determine whether compensatory damages are to be awarded; and

(B) After a compensatory damages award determination, the finder of fact then shall determine whether and in what amount punitive damages will be awarded.

(b) Evidence of the financial condition of the defendant and other evidence relevant only to punitive damages is not admissible with regard to any compensatory damages determination.

Ark. Code Ann. § 16-55-211.

5.

Emotional Distress . A claim of negligent infliction of emotional distress must be accompanied by some physical injury. Dowty v.

Riggs, 2010 Ark. 465, ___ S.W.3d ___ (2010). It has long been held

―'[t]here can be no recovery for fright or mental pain and anguish caused by negligence, where there is no physical injury.'‖ Id.

at *7

(quoting Erwin v. Milligan, 188 Ark. 658, 663, 67 S.W. 592, 594

28

(1934). ―'The reason that mental suffering, unaccompanied by physical injury, is not considered as an element of recoverable damages is that it is deemed to be too remote, uncertain and difficult of ascertainment; and the reason that such suffering is allowed as an element of damages, when accompanied by physical injury, is that the two are so intimately connected that both must be considered because of the difficulty in separating them.'‖

Id.

(quoting Rock Island &

Pacific Ry. Co. v. Caple, 207 Ark. 52, 58-9, 179 S.W.2d 151, 154

(1944)).

Emotional distress is recoverable even in the absence of physical impact, however, where it is caused by willful or intentional conduct.

See Erwin, 188 Ark. at 663, 67 S.W.2d at 594. Arkansas law also provides for the recovery of emotional distress damages based on the tort of "outrage." To establish a claim for outrage, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous, beyond all possible bounds of decency, and was utterly intolerable in a civilized community; (3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Coombs v. J.B. Hunt

Transp., Inc., 2012 Ark. App. 24, ____ S.W.3d ____ (2012).

Importantly, however, discomfort, upset, embarrassment, anxiety, loss of sleep, and depression do not meet the ―mental distress‖ element of the tort of outrage. Id.


AMI 2201 Measure of Damages—General Instruction

[If you decide for on the question of liability (against any party (he)(she) is suing)] [If an interrogatory requires you to assess the damages of ], you must then fix the amount of money which will reasonably and fairly compensate [him][her] for any of the following __________ elements of damage sustained [which you find were proximately caused by the

(negligence)(or)(fault) of (or ) ]:

[Here insert the elements.]

[First:]

[Second:]

[Third:]

[etc.:]

29

Whether any of these __________ elements of damage has been proved by the evidence is for you to determine.

AMI 2202 Measure of Damages—The Nature, Extent, Duration, and

Permanency of the Injury

A. The nature, extent, and duration of any injury.

B. The nature, extent, duration, and permanency of any injury.

C. The nature, extent, and duration of any injury and whether it is temporary or permanent.

AMI 2203 Measure of Damages—Aggravation of Pre-existing

Condition

In this regard you should consider the full extent of any injury sustained, even though the degree of injury is found by you to have proximately resulted from the aggravation of a [condition][disease] that already existed and that predisposed to injury to a greater extent than another person. [However, you may not award [him][her] damages for any

(pain)(mental anguish)(disability) (__________) which [he][she] would have suffered even though the accident had not occurred.]

AMI 2204 Measure of Damages—Medical Expense—Past and Future

The reasonable expense of any necessary medical care, treatment and services received, [including (transportation)(and)(board)(and)(lodging) expenses necessarily incurred in securing such care, treatment, or services]

[and the present value of such expense reasonably certain to be required in the future].

AMI 2205 Measure of Damages—Pain, Suffering, and Mental

Anguish—Past and Future

Any pain and suffering [and mental anguish] experienced in the past [and reasonably certain to be experienced in the future] .

AMI 2206 Measure of Damages—Loss of Earnings or Profits—Past and Future

The value of any [earnings][profits][salary][working time] lost [and the present value of any (earnings)(profits)(salary)(working time) reasonably certain to be lost in the future].

AMI 2207 Measure of Damages—Loss of Earning Capacity

The present value of any loss of ability to earn in the future.

30

AMI 2208 Measure of Damages—Scars, Disfigurement, and Visible

Results of Injury

Any [scars][and][disfigurement][and][visible results of [his][her] injury] .

AMI 2209 Measure of Damages—Caretaking Expense—Past and

Future

The reasonable expense of any necessary help in [his][her] home, which has been required as a result of [his][her] injury [and the present value of such expense reasonably certain to be required in the future].

AMI 2212 Measure of Damages—Parent's Cause of Action—Injury to

Child

[If you decide for __________ (against any party [he][she] is suing) on

[his][her] claim for damages resulting from injuries to __________,] [If an interrogatory requires you to assess the damages of __________ resulting from injuries to __________,] you must then fix the amount of money which will fairly and reasonably compensate [him][her] for any of the following elements of damage which you find were proximately caused by the [negligence][or][fault] of [or ] :

(a) [The reasonable expense of any necessary medical care, treatment and services received by __________ (including

[transportation][and][board][and][lodging] expenses necessarily incurred in securing such care, treatment, or services) (and the present value of such expense reasonably certain to be required in the future during __________'s minority):]

(b) [The present value of any reasonable expense of medical care and treatment reasonably certain to be incurred in the future during

__________'s minority:]

(c) [The reasonable value of any (services)(and)(contributions) of

__________ which the parents have lost (and the present value of any

[services][and][contributions] the parents are reasonably certain to lose in the future [during __________'s minority])].

Whether any of these elements of damage has been proved by the evidence is for you to determine.

AMI 2213 Measure of Damages—Minor Plaintiff's Cause of Action

[If you decide for __________ on the question of liability (against any party [he][she] is suing)] [If an interrogatory requires you to assess the damages of __________], you must then fix the amount of money which

31

will reasonably and fairly compensate [him][her] for any of the following elements of damage which you find were proximately caused by the

[negligence][or][fault] of [or ] :

(a) [The nature, extent, and duration of any injury;][The nature, extent, duration, and permanency of any injury;][The nature, extent, and duration of any injury and whether it is temporary or permanent;]

(b) [In this regard you should consider the full extent of any injury sustained, even though the degree of injury is found by you to have resulted from the aggravation of a (condition)(disease) that already existed and that predisposed __________ to injury to a greater extent than another person.] [However, you may not award [him][her] damages for any

(pain)(mental anguish)(disability) __________ which [he][she] would have suffered even though the accident had not occurred;]

(c) [The reasonable expense of any necessary medical care, treatment, and services received (including [transportation][and][board][and][lodging] expenses necessarily incurred in securing such care, treatment, or services)

(and the present value of such expense reasonably certain to be required in the future);] [The present value of the reasonable expense of any necessary medical care, treatment, and services reasonably certain to be required after reaching majority (including the present value of

[transportation][and][board][and][lodging] expenses reasonably certain to be incurred in securing such care, treatment, or services);]

(d) [Any pain and suffering (and mental anguish) experienced in the past

(and reasonably certain to be experienced in the future) ;]

(e) [The value of any (working time)(earnings)(profits)(salary) lost (and the present value of any [working time][earnings][profits][salary] reasonably certain to be lost in the future);] [The present value of any

(working time)(earnings)(profits)(salary) reasonably certain to be lost after reaching majority;]

(f) [The present value of any loss of ability to earn in the future;]

(g) [Any (scars)(and)(disfigurement)(and)(visible results of [his][her] injury) ;]

(h) [The reasonable expense of any necessary help in [his][her] home which has been required as a result of [his][her] injury (and the present value of such expense reasonably certain to be required in the future);]

[The present value of the reasonable expense of any necessary help in

[his][her] home reasonably certain to be required as a result of [his][her] injury after reaching majority;]

(i) [(His)(Her) inability to attend school;]

32

(j) [If property damage is involved insert here appropriate clause from

AMI 2227 through 2229.]

Whether any of these elements of damage has been proved by the evidence is for you to determine.

AMI 2218 Punitive Damages

In addition to compensatory damages for any actual loss that __________ may have sustained, [he][she] asks for punitive damages from

__________. Punitive damages may be imposed to punish a wrongdoer and to deter the wrongdoer and others from similar conduct. In order to recover punitive damages from __________, __________ has the burden of proving [by clear and convincing evidence][either, first] :

[That __________ knew or ought to have known, in the light of the surrounding circumstances, that [his][her][its] conduct would naturally and probably result in (injury)(damage) and that [he][she][it] continued such conduct (with malice or) in reckless disregard of the consequences from which malice may be inferred]

[Or, second]

[That __________ intentionally pursued a course of conduct for the purpose of causing (injury)(damage) ]

[Or both].

[In arriving at the amount of punitive damages you may consider the financial condition of __________, as shown by the evidence.]

[―Clear and convincing evidence‖ is proof that enables you without hesitation to reach a firm conviction that the allegation is true.]

You are not required to assess punitive damages against __________ but you may do so if justified by the evidence.

[You may consider an award of punitive damages only if you found that

__________ is entitled to recover compensatory damages.]


In case of injury to a minor child, there are two separate and distinct causes of action: one in favor of the infant for his injuries and one in favor of the parent for losses suffered by the parent. National Bank of Commerce v. Quirk,

323 Ark. 769, 792, 918 S.W.2d 138, 151 (1996). "The minor has a claim for his injuries, which includes damages for pain and suffering, personal disfigurement, future medical expenses reasonably certain to be required after majority and

33

probable loss of earnings and earning capacity after majority." Broadway v .

Adidas America, Inc.

, No. 3:07cv000149 SWW, 2008 WL 2705566 (E.D. Ark.

July 10, 2008). "The minor's damages do not include medical expenses incurred during his minority." Id. Rather, the parents own the right to recover for medical expenses incurred during an unemancipated child's minority. See Nat'l Bank of

Commerce v. Quirk , 323 Ark. 769, 792-93, 918 S.W.2d 138, 151 (1996)

(affirming exclusion of medical expenses where parents of child did not become parties to the suit until after the statute of limitations for actions based on medical injury ran); see also Parrott v. Mallett, 262 Ark. 525, 528-29, 558 S.W.2d 152,

154 (1977) ("We have not specifically stated that recovery cannot be had in an action on behalf of a minor child for medical expenses incurred and to be incurred during his minority, where he has not paid them and is not liable for them. By an overwhelming weight of authority, it is held that no award for such damages may be made in an action brought on behalf of the child, where the child is unemancipated and not responsible for his own debts and has not paid the bill for such expenses). A parent is also entitled to recover for the value of the minor's services and loss of such a minor's earning capacity during minority and for expenses incurred and to be incurred by the parent on account of an injury to the child. Lopez v. Waldrum Estate, 249 Ark. 558, 563, 460 S.W.2d 61, 64-65

(1970).


Under Arkansas law, when a person's death is caused by the negligence of another, two causes of action arise: first, there is a cause of action for the estate under the survival statute, and, second, there is a cause of action for the statutory beneficiaries under the wrongful death statute. Ark. Code Ann. §§ 16-62-201, 16-

62-102. Under Arkansas‘ Wrongful Death Statute, statutory beneficiaries may recover for loss of the services and companionship of the decedent and any mental anguish (including grief normally associated with loss of a loved one) resulting from his/her death. The Administrator of the Estate may also recover damages for the decedent‘s loss of life, funeral expenses, pain and suffering and lost future earnings.


1. Property Damages . Property damages are recoverable. See Arkansas

Code Ann. 16-62-101.

2. Funeral, Medical and Other Related Expenses . Arkansas' Survival

Statute allows the administrator of the estate of the deceased to recover, on behalf of the estate, expenses suffered by the decedent prior to his death such as medical expenses, lost earnings and conscious pain and suffering. The administrator may also recover for funeral expenses. Meredith v. Buchman, 101 F. Supp. 2d 764, 766

(E.D. Ark. 2000).

34

3. Life Expectancy . Arkansas courts consider age and life expectancy of the decedent in determining lost earning capacity. See Lowe v. U.S.,

662 F. Supp. 1089 (W.D. Ark. 1987). Future damages must be reduced to present value by the jury. The jury will consider the fact that money recovered and invested or saved will earn interest to pay for future losses. The jury must therefore reduce any award of damages to compensate for the reasonable earning power of money.

AMI 2220; see also Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291

(1959).


1. Loss of Society and Companionship . Pecuniary injuries, including mental anguish associated with the loss of a loved one, are recoverable. Ark. Code Ann. § 16-62-102(f)(1). Accordingly, mental anguish suffered by the surviving parents of a minor child, including grief and despair associated with the loss, is a compensable injury.

See, e.g. Maryland Cas. Co. v. Rowe, 256 Ark. 221, 224, 506 S.W.2d

569, 572 (1974). Loss of probable future contributions are also recoverable. See id.

2. Pain and Suffering . Pain and Suffering experienced by the Decedent between the time of injury and his/her subsequent demise is recoverable. See New Prospect Drilling Co. v. First Commercial Trust,

N.A., 332 Ark. 466, 966 S.W.2d 233 (1998); Meredith v. Buchman,

101 F. Supp. 2d 764 (E.D. Ark. 2000).

3. Punitive Damages . See punitive damages discussion above.

4. Loss of Enjoyment of Life . In addition to all other elements of damages provided by law, a decedent's estate may recover for the decedent's loss of life as an independent element of damages. Ark.

Code Ann. 16-61-101(b). Loss-of-life damages seek to compensate a decedent for the loss of the value that the decedent would have placed on his or her own life. Durham v. Marberry , 356 Ark. 481, 492, 156

S.W.3d 242, 248 (2004).

5. Emotional Distress . Arkansas's wrongful-death statute allows for statutory beneficiaries, who have suffered no physical injury as a result of a tortfeasor's negligence, to recover for mental anguish. See Ark.

Code Ann. § 16-62-102(f)(2). The proximity of relationship between the deceased and the survivors is the most significant factor in determining whether recovery is allowable. Distant relatives generally have no more than normal grief and will not be allowed to recover without establishing something more. Martin v. Rieger, 289 Ark. 292,

711 S.W.2d 776 (1986). Arkansas courts consider the following factors in evaluating the relationship between the decedent and

35

survivors: (1) The duration and intimacy of the relationship and the ties of affection between decedent and survivor; (2) Frequency of association and communication between an adult decedent and an adult survivor; (3) The attitude of the decedent toward the survivor, and of the survivor toward the decedent; (4) The duration and intensity of the sorrow and grief; (5) Maturity or immaturity of survivor; (6)

The violence and suddenness of the death; (7) Sleeplessness or troubled sleep over an extended period; (8) Obvious extreme or unusual nervous reaction to the death; (9) Crying spells over an extended period of time; (10) Adverse effect on survivor's work or school; (11) Change of personality of the survivor; (12) Loss of weight by survivor and other physical symptoms; and (13) Age and life expectancy of the decedent. Id.

III. Jury Instruction:

AMI 2217 Measure of Damages—Wrongful Death—Unmarried

Minor

As administrator of the estate of ______, the deceased minor, _____ represents the estate of the deceased and also __________.

[If you decide for the administrator on the question of liability (against any party [he][she] is suing)] [If an interrogatory requires you to assess the damages of the administrator], you should determine [from the evidence] the present value of any [services][and][contributions] that would have been received by the parent (s)[during the child's minority] , less providing for the child. You should then fix an amount that would fairly and reasonably compensate the parents for the net value of such

[services][and][contributions] .

[In the case of the death of a child too young to be capable of earning anything or rendering services of any value, the value of its probable future services to the parent during its minority is necessarily a matter of conjecture, and may be determined by you without the testimony of witnesses.]

[You should also determine an amount from the evidence that would reasonably compensate __________ for any mental anguish

(he)(she)(they)(has)(have) endured as a result of the death of the minor

(and reasonably probable to be endured in the future) . Mental anguish includes the mental suffering resulting from emotions, such as grief and despair, associated with the loss of a loved one.]

[One][Certain] element (s) of damage may be awarded only to the estate of __________. [This is][These are][decedent's loss of life][the reasonable value of funeral expenses][and][conscious pain and suffering

36

(and mental anguish) of the deceased prior to death][and][the reasonable value of medical expenses attributable to the fatal injury][and][property damage][and][the value of any (earnings) (profits) (salary) (working time) lost by the deceased prior to death][and][any (scars)

(disfigurement) (and) (visible results of the injury) sustained by the deceased prior to death.]

Whether any of the damages sued for have been proved by the evidence is for you to determine.

AMI 2219 Purpose of Mortality Tables

In the event that you find that is entitled to damages arising in the future because of [injuries][or][future (medical) (caretaking) expenses][or][loss of earnings][or][loss of earning capacity][or][loss of contributions] , you must determine the amount of these damages.

If these damages are of a continuing nature, you may consider how long they will continue. [If they are permanent in nature, then in computing these damages you may consider how long is likely to live.]

[With respect to loss of future (earnings)(earning capacity)(contributions) you may consider that some persons work all their lives and others do not and that a person's earnings may remain the same or may increase or decrease in the future.]

Mortality tables are evidence of an average life expectancy of a person who has reached a certain age, but they are not conclusive. They may be considered by you in connection with other evidence relating to the probable life expectancy of , including evidence of [his][her] occupation, health, habits, and other activities, bearing in mind that some persons live longer than the average and some persons less than the average.

AMI 2220 Present Value—Definition

I have used the expression ―present value‖ in these instructions with respect to certain elements of damage which you may find that

__________ will sustain in the future. This simply means that if you find that __________ is entitled to recover any elements of damage which require you to determine their present value, you must take into consideration the fact that money recovered will earn interest, if invested, until the time in the future when these losses will actually occur.

Therefore, you must reduce any award of such damages to compensate for the reasonable earning power of money.

37

CALIFORNIA

Merton A. Howard

Shannon M. Nessier

Hanson Bridgett LLC

(415) 777-3200


Generally, Cal. Civ. Proc. Code (CCP) § 376 identifies the parental right to maintain an action for injuries to their child. Cal. Civil Code § 1431.2 defines which damages are considered economic and which are considered noneconomic.


1. Medical Expenses: Past medical expenses reasonably incurred for treatment of injuries can be recovered by both the minor child and the parents. White v. Moreno Valley Unified School District (1986) 181

Cal.App.3d 1024, 1030. Future medical expenses may also be recovered, including medical monitoring costs, but there must be a reasonable degree of certainty for the need for such monitoring. Potter v. Firestone Tire and Rubber Company (1993) 6 Cal.4th 965, 1004.

Keep in mind that recovery for these expenses, to the minor or otherwise, is still subject to reduction under principles of comparative fault under California law. Hasson v. Ford Motor Company (1977) 19

Cal.3d 530, 551.

2. Earnings & Earning Capacity: A minor or his parents may recover lost earnings during his minority. They may both also recover for his lost future earnings and the impairment to his earning capacity, with the parents' rights to such future awards bounded by the injured child's reaching the age of majority. Heiner v. Kmart Corp.

(2000) 84

Cal.App.4th 335, 348; Cal. Family Code § 7500.

3. Service to Parents: Parents may also recover for any services the minor would have contributed to the family unit. Cal. Family Code §

7500; Baxter v. Superior Court (1977) 19 Cal.3d 461, 462.

4. Property Damages: Loss to real or personal property is recoverable.

II. Non-Economic Damages:

1. Pain, Suffering, and Emotional Distress: Mental suffering is a compensable damage and includes nervousness, grief, anxiety, worry, shock, humiliation and indignity as well as physical pain. Crisci v.

The Security Insurance Co. of New Haven, Connecticut (1967) 66

38

Cal.2d 425, 433; Duarte v. Zachariah (1994) 22 Cal.App.4th 1652,

1664–1665. Note that under Cal. Civil Code § 3333.2, there is a cap of $250,000.00 for pain and suffering damages in medical professional negligence cases brought against a health care provider. These damages may only be recovered by the injured person and not a parent.

2. Disfigurement: Usually awarded with humiliation and embarrassment, as a pain and suffering damage, disfigurement could be considered a separate compensable detriment even if it does not give rise to those injuries.

3. Loss of enjoyment of life/Hedonic Damages: A person temporarily or permanently disabled by bodily injury and the mental consequences of such disability, may seek damages for the loss of the capacity to enjoy a normal life. Huff v. Tracy (1976) 57 Cal.App.3d 939, 943.

However, most courts view these damages as properly a component of the damages for pain and suffering, and cannot be separately instructed on if to do so would invite duplication of awards. Loth v. Truck-A-

Way Corp.

(1998) 60 Cal.App.4th 757, 766.

4. Punitive Damages: Under California Civil Code § 3294, an injured party may recovery punitive damages when the conduct causing his harm involves oppression, fraud, or malice.


3903A. Medical Expenses—Past and Future

To recover damages for past medical expenses, plaintiff must prove the reasonable cost of reasonably necessary medical care that

[he/she] has received.

To recover damages for future medical expenses, plaintiff must prove the reasonable cost of reasonably necessary medical care that [he/she] is reasonably certain to need in the future.

3903C. Past and Future Lost Earnings

To recover damages for past lost earnings, plaintiff must prove the amount of income/earnings/salary/wages that [he/she] has lost to date.

To recover damages for future lost earnings, plaintiff must prove the amount of income/earnings/salary/wages [he/she] will be reasonably certain to lose in the future as a result of the injury.

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3903E. Loss of Ability to Provide Household Services

To recover damages for the loss of the ability to provide household services, plaintiff must prove the reasonable value of the services [he/she] would have been reasonably certain to provide to [his/her] household if the injury had not occurred.

3903D. Lost Earning Capacity

To recover damages for the loss of the ability to earn money as a result of the injury, plaintiff must prove the reasonable value of that loss to

[him/her]. It is not necessary that [he/she] have a work history.

Noneconomic Damages Instructions:

3903A. Physical Pain, Mental Suffering, and Emotional Distress

No fixed standard exists for deciding the amount of these noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.

To recover for future [ physical pain/ mental suffering/ loss of enjoyment of life/ disfigurement/ physical impairment/ inconvenience/ grief/ anxiety/ humiliation/ emotional distress ], plaintiff must prove that [he/she] is reasonably certain to suffer that harm.

For future [ insert item of pain and suffering ], determine the amount in current dollars paid at the time of judgment that will compensate plaintiff for future [ insert item of pain and suffering ]. This amount of noneconomic damages should not be further reduced to present cash value because that reduction should only be performed with respect to economic damages.

3945. Punitive Damages Instructions (see 3946-3949 for bifurcated and individual and entity instructions)

If you decide that defendant‘s conduct caused plaintiff harm, you must decide whether that conduct justifies an award of punitive damages. The purposes of punitive damages are to punish a wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future.

You may award punitive damages against defendant only if plaintiff proves that defendant engaged in that conduct with malice, oppression, or fraud. To do this, plaintiff must prove one of the following by clear and convincing evidence:

(1)That the conduct constituting malice, oppression, or fraud was committed by one or more officers, directors, or managing agents of

40

defendant , who acted on behalf of defendant ; or

(2)That the conduct constituting malice, oppression, or fraud was authorized by one or more officers, directors, or managing agents of defendant ; or

(3)That one or more officers, directors, or managing agents of defendant knew of the conduct constituting malice, oppression, or fraud and adopted or approved that conduct after it occurred.

―Malice‖ means that defendant acted with intent to cause injury or that defendant

‘s conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences.

―Oppression‖ means that defendant

‘s conduct was despicable and subjected plaintiff to cruel and unjust hardship in knowing disregard of

[his/her] rights.

―Despicable conduct‖ is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.

―Fraud‖ means that defendant intentionally misrepresented or concealed a material fact and did so intending to harm plaintiff .

An employee is a ―managing agent‖ if he or she exercises substantial independent authority and judgment in his or her corporate decision making such that his or her decisions ultimately determine corporate policy.

There is no fixed formula for determining the amount of punitive damages, and you are not required to award any punitive damages. If you decide to award punitive damages, you should consider all of the following factors in determining the amount:

(a) How reprehensible was defendant‘s conduct? In deciding how reprehensible defendant‘s conduct was, you may consider, among other factors:

1.

Whether the conduct caused physical harm;

2.

Whether defendant disregarded the health or safety of others;

3.

Whether plaintiff was financially weak or vulnerable and defendant knew plaintiff was financially weak or vulnerable and took advantage of [him/her/it];

41

4.

Whether defendant‘s conduct involved a pattern or practice; and

5.

Whether defendant acted with trickery or deceit.

(b) Is there a reasonable relationship between the amount of punitive damages and plaintiff‘s harm or between the amount of punitive damages and potential harm to plaintiff that defendant knew was likely to occur because of [his/her/its] conduct?

(c) In view of defendant‘s financial condition, what amount is necessary to punish [him/her/it] and discourage future wrongful conduct? You may not increase the punitive award above an amount that is otherwise appropriate merely because defendant has substantial financial resources.

Any award you impose may not exceed defendant‘s ability to pay.

Punitive damages may not be used to punish defendant for the impact of

[his/her/its] alleged misconduct on persons other than plaintiff.


The right to recover past medical expenses belongs to both the minor child and the parents. White v. Moreno Valley Unified School District (1986) 181

Cal.App.3d 1024, 1030. The only limitation is that the funds cannot be recovered by the parents if they were paid from the minor's own funds. Future medicals, however, belong to the child in all cases, and to the parents in only some instances. See Laugher v. Byrne (1993) 18 Cal.App.4th 904, 909.


The right to pursue a Wrongful Death action is detailed in CCP § 377.60, and the damages recoverable in CCP § 377.61. Note that on behalf of the deceased minor's estate, several items of damages survive the minor's death, and can be recovered not by the parents as individuals, but possibly by a parent acting on behalf of the minor's estate ( e.g.

, punitive damages otherwise unrecoverable in a wrongful death action, under a survival statute are recoverable if proven).


1. Financial Support: Parents can recover the value of the financial support, if any, that the minor would have contributed to the family.

Little v. Yanagisawa (1924) 70 Cal. 303, 307.

2. Gifts or benefits: Parents may recover the loss of gifts or benefits that they could have expected to receive from the minor. Sails v. General

Electric Co. (1968) 264 Cal.App.2d 82, 87.

42

3. Funeral and burial expenses: Parents may recover all expenditures related to burial of and/or memorial services for the minor. Vander v.

Lin (1983) 146 Cal.App.3d 358, 364.

4. Household Services: Parents may also recover the reasonable value of household services that the minor would have provided.


1. Loss of Companionship: A parent is entitled to damages for loss of love, companionship, comfort, affection, society, solace, moral support, and protection that the child could have been expected to give. Tyson v. Rome (1948) 88 Cal.2d 752, 758. Note however, that this is not to include the grief, sorrow or suffering of the surviving parents. Krause v. Graham (1977) 19 Cal.3d 59, 70.

2. Punitive Damages: While Punitive damages are not permitted in wrongful death actions, Cortez v. Macias (1980) 110 Cal.App.3d 640,

657, punitive damages may awardable to the decedent‘s estate in an action by the estate representative based on the cause of action the decedent would have had if he or she had survived.‖ Roof v. Simpson

(2001) 86 Cal.App.4th 573, 616.


3922 Wrongful Death (Parents' Recovery for Death of a Minor Child)

If you decide that plaintiff has proved [his/her] claim against defendant for the death of the minor, you also must decide how much money will reasonably compensate plaintiff for the death of the minor. This compensation is called ―damages.‖

Plaintiff does not have to prove the exact amount of these damages.

However, you must not speculate or guess in awarding damages.

The damages claimed by Plaintiff fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form.

Plaintiff claims the following economic damages:

(1) The value of the financial support, if any, that the minor would have contributed to the family during either the life expectancy that the minor had before [his/her] death or the life expectancy of Plaintiff, whichever is shorter;

43

(2) The loss of gifts or benefits that Plaintiff could have expected to receive from the minor;

(3) Funeral and burial expenses; and

(4) The reasonable value of household services that the minor would have provided.

Your award of any future economic damages must be reduced to present cash value.

Plaintiff also claims the following noneconomic damages: The loss of the minor‘s love, companionship, comfort, care, assistance, protection, affection, society, and moral support.

No fixed standard exists for deciding the amount of noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.

For these noneconomic damages, determine the amount in current dollars paid at the time of judgment that will compensate Plaintiff for those damages. This amount of noneconomic damages should not be further reduced to present cash value because that reduction should only be performed with respect to future economic damages.

Do not include in your award any compensation for the following:

(1) Plaintiff ‘s grief, sorrow, or mental anguish; or

(2)

The minor‘s pain and suffering.

In computing these damages, you should deduct the present cash value of the probable costs of the minor‘s support and education.

In deciding a person‘s life expectancy, consider, among other factors, that person‘s health, habits, activities, lifestyle, and occupation. Life expectancy tables are evidence of a person‘s life expectancy but are not conclusive. In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. I will divide the amount among/between the plaintiffs.

44


COLORADO

John W. Grund

Joan S. Allgaier

Grund • Dagner, P.C.

Denver, Colorado

(303) 830-7770


I.

1.

Property Damages : Property damages are recoverable.

2. Medical Expenses

: Expenses incurred for the minor‘s medical treatment and paid for by the parent are recoverable. Nat’l Fuel Co. v.

Green , 115 P. 709 (Colo. 1911). The parent may recover for those expenses, or the child may recover where the parent has released that right to the child. Wales v. Howard , 433 P.2d 493 (Colo. 1967).

3. Lost Earnings During the Age of Minority : Parents have a right of action against the defendant for diminution in the earning capacity of their minor child during minority because of physical injury. Pawnee

Farmers’ Elevator Co. v. Powell , 227 P. 836 (Colo. 1924). The child may recover lost earnings during the age of minority where the parent has relinquished that right to the child. Wales v. Howard , 433 P.2d

493 (Colo. 1967).

4. Lost Future Earnings and Diminution of Earning Capacity : Even though it is not possible to provide evidence of the value of the future lost wages of a minor, the decision of whether to award such damages and the amount thereof is left to the sound judgment and experience of the jury. Stewart v. Rice , 25 P.3d 1233, 1236 (Colo.App. 2000), rev’d on other grounds , 47 P.3d 316 (Colo. 2002).

5. Other Expenses : The future pecuniary loss on account of added expenses for an injured minor child is recoverable. See Colorado Util.

Corp. v. Casady , 300 P. 601 (Colo. 1931).

6. Prejudgment Interest : Pursuant to § 13-21-101, C.R.S., interest accumulates on an award at the rate of 9% per year and accrues from the date the action accrues until the date suit is filed. During this period, it is simple interest. From the date of filing suit until the date of judgment and, generally, post-judgment, that same rate is compounded annually.

45

II.

Noneconomic Damages

1. Noneconomic Loss or Injury : Defined as nonpecuniary harm including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life. § 13-21-102.5(2)(b), C.R.S. Minor plaintiffs are entitled to recover for pain and suffering, mental anguish, and emotional distress. See Colorado Util. Corp. v. Casady , 300 P.

601 (Colo. 1931); Nat’l Fuel Co. v. Green , 115 P. 709 (Colo. 1911).

2. No Recovery for Loss of Consortium : Parents may not recover damages for loss of consortium arising solely from injury to their child. Elgin v. Bartlett , 994 P.2d 411 (Colo. 1999).

3. Damages Cap : Pursuant to § 13-21-102.5, C.R.S, noneconomic damages are capped at $250,000 but this amount is adjusted for inflation. As of January 2012, the inflation-adjusted cap is $366,250; under the statute, however, if proved by clear and convincing evidence, the trial court may increase that figure up to the currently inflation-adjusted cap of $732,500. § 13-21-203.7(1), C.R.S. In cases involving more than one defendant, the cap on noneconomic damages is applicable to the amount of noneconomic damages that a plaintiff can recover from each defendant, rather than to the total amount of noneconomic damages awarded. General Elec. Co. v. Niemet , 866

P.2d 1361 (Colo. 1994).

4. Damages for Impairment and Disfigurement: Damages for impairment and disfigurement are separate from noneconomic damages and are not capped. See Pringle v. Valdez , 171 P.3d 624

(Colo. 2007). Minor plaintiffs may recover damages for impairment.

See Colorado Util. Corp. v. Casady , 300 P. 601 (Colo. 1931).

5. Punitive Damages: Punitive damages may be imposed where the wrongful conduct is attended by circumstances of fraud, malice, or willful and wanton conduct. Pursuant to § 13-21-102(1.5)(a), C.R.S., a request for punitive damages may not be made in the complaint. It may be asserted by amendment to the pleadings only after the substantial completion of discovery and only after the plaintiff establishes prima facie proof of a triable issue.

1

Punitive damages must be proven beyond a reasonable doubt. § 13-25-127(2), C.R.S.

The law allows only a 1:1 ratio for punitive to compensatory damages, unless the judge finds the existence of certain factors, in which case the court may increase the award to not more than a 3:1 ratio. See

Coors v. Security of Denver Life Ins. Co.

, 112 P.3d 59 (Colo. 2005).

1

This statute applies to all personal-injury actions except for those involving healthcare malpractice, though a plaintiff may not initially seek punitive damages in those cases either, under

§ 13-64-302.5, C.R.S.

46

Prejudgment interest is not available on any award of punitive damages. Seaward Constr. Co. v. Bradley , 817 P.2d 971 (Colo. 1991).

III. Model Jury Instructions: a. Personal Injuries – Minor Child Colorado Jury Instructions 6:2

Plaintiff, (name), has the burden of proving, by a preponderance of the evidence, the nature and extent of (his) (her) damages. If you find in favor of the plaintiff, you must determine the total dollar amount of plaintiff's damages, if any, that were caused by the (insert appropriate description, e.g., "negligence") of the defendant(s), (name[s]), (and) (,) (the [insert appropriate description, e.g., "negligence"], if any, of the plaintiff(s),

[name(s)]), (and) (the [insert appropriate description, e.g., "negligence"], if any, of any designated nonparties).

In determining such damages, you shall consider the following:

1. Any noneconomic losses or injuries which plaintiff has had to the present time or which plaintiff will probably have in the future, including: physical and mental pain and suffering, inconvenience, emotional stress, impairment of the quality of life, and (insert any other recoverable nonecomonic losses for which there is sufficient evidence).

(In considering damages in this category, you shall not include actual damages for [physical impairment] [or] [disfigurement], because these damages, if any, are to be included in a separate category.)

2. Any economic losses or injuries which plaintiff will probably have in the future after (he) (she) reaches the age of 18 (or is otherwise emancipated), including: loss or damage to (his) (her) ability to earn money in the future, any (reasonable and necessary) medical, hospital, and other expenses the plaintiff, as a minor, has paid for (or for which [he]

[she] is personally responsible), and (insert any other recoverable economic losses of which there is sufficient evidence). (In considering damages in this category, you shall not include actual damages for

[physical impairment] [or] [disfigurement], since these damages, if any, are to be included in a separate category.)

3. Any [physical impairment] [or] [disfigurement]. In considering damages in this category, you shall not include damages again for losses or injuries already determined under either numbered paragraph 1 or 2 above.)

(In determining the plaintiff's, (name of minor child), damages you should not include [any future expenses for (insert appropriate description)] [or]

[any future (loss of earnings) (impairment of earning capacity)] which plaintiff (name of minor child) may have between now and the time when

(he) (she) reaches the age of 18 [or is emancipated] because these

47

damages, if any, are recoverable by the plaintiff's parents.) (For the same reason, you should not include in plaintiff's, (name of minor child), damages any damages for any loss of past earnings.) b. Personal Injuries – Minor Child – Measure of Parents’ Damages

Colorado Jury Instructions 6:3

Plaintiff(s), (name[s]), (has) (have) the burden of proving, by a preponderance of the evidence, the nature and extent of (his) (her) (their) damages. If you find in favor of the plaintiff(s), (name of parent(s), on

(his) (her) (their) claim of damages for injuries caused to (his) (her) (their) child, (name of minor child), by the defendant(s), (name[s] of defendant[s]), you must determine the total dollar amount of plaintiff('s)(s'), (name(s) of parent(s)), damages, if any, that were caused by the (insert appropriate description, e.g., "negligence") of the defendant(s), (name(s)), (and) (,) (the [insert appropriate description, e.g.,

"negligence"], if any, of the plaintiff(s), (name[s]), (and) (the [insert appropriate description, e.g., "negligence"], if any, of any designated nonparties).


1. Any (reasonable and necessary) expenses the plaintiff(s) (has)

(have) had on (name of minor child)'s behalf to the present time and any expenses the plaintiff(s), (name(s) of parent(s)), will have in the future between now and the time (name of minor child) reaches the age of 18 (or is emancipated) for (insert appropriate description, using separately lettered subparagraphs for various categories, if necessary, e.g., "medical, hospital, and other similar services," etc.);

2. Any loss of past earnings (name of minor child) may have had to the present time;

3. Any future (loss of earnings) (damage to [name of minor child's] ability to earn money in the future) will probably have between now and the time when (name of minor child) reaches the age of 18 (or is emancipated);

4. Any loss of past household and similar services or any loss of such services in the future (name of minor child) would have provided to the plaintiff(s), (name(s) of parent(s)) until (name of minor child) reaches the age of 18 (or is emancipated);

5. (Insert any other appropriate elements of damages, e.g., any unusual services the plaintiff may be required to render the child because of [his] [her] injuries).

48

c. Personal Injuries – Minor Child – Loss of Earnings – Distinction

Between Parents’ and Child’s Claims


Earnings of a minor child before emancipation belong to the parents.

Earnings after emancipation or after reaching the age of 18 belong to the child.


Parents may pursue their own claims to recover for medical expenses incurred for an injured minor child, or a minor child has the right to recover if the parent has relinquished that right to the child. The mere fact that the parent brings an action as the next friend of the minor is not necessarily evidence that the parent released that right. Wales v. Howard , 433 P.2d 493 (Colo. 1967).

In Elgin v. Bartlett , 994 P.2d 411 (Colo. 1999), the court held that a parent‘s claim for expenses is derivative and turns upon the right of the injured person to recover, but that the statute tolling the limitations for a minor‘s action did not apply to the parent‘s action.


I. Wrongful Death Damages

Under the Colorado Wrongful Death Act (§ 13-21-201 to -204, C.R.S.), there is a two-year statute of limitations, which accrues at the date of death (§ 13-

80-108(2), C.R.S.).

1. Economic Damages : Parents may recover the net pecuniary loss for the death of a minor child, in addition to funeral expenses. ―Net pecuniary loss‖ includes the parent‘s loss of the services and earnings that they could have reasonably expected from their child during his or her minority, but for the untimely death, less their expenditures for maintenance, in addition to the loss of services and support that they could reasonably have anticipated when their child was an adult and they were growing older. See Herbertson v. Russell , 371 P.2d 422

(Colo. 1962); McEntyre v. Jones , 263 P.2d 313 (Colo. 1953).

2. Noneconomic Damages are Capped : The Wrongful Death Act allows a ―maximum‖ recovery of up to $250,000 for noneconomic damages (e.g., grief), § 13-21-203(1), C.R.S., although that amount is adjusted for inflation. As of January 2012, the inflation-adjusted cap is $341,250. See § 13-21-203.7, C.R.S. Importantly, that $250,000 cap applies on a collective and not an individual basis, and is the most that may be recovered for any wrongful death. Lanahan v. Chi Psi

Frat, , 175 P.3d 97 (Colo. 2008).

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The cap on noneconomic damages does not apply if the conduct causing the death is determined to have been a ―felonious killing.‖ §

15-11-803(1)(b), C.R.S. A plaintiff is not required to show that a conviction was or could have been obtained and, instead, may show that the conduct in question constitutes the statutory elements of a

"felonious killing." Estate of Wright v. United Servs. Auto. Ass'n , 53

P.3d 683 (Colo.App. 2001), cert. denied (2002).

In lieu of establishing noneconomic damages, those persons entitled to sue may elect in writing to seek a solatium of ―$50,000.‖ § 13-21-

203.5, C.R.S. Again, this figure in the statute has been adjusted for inflation, and as of January 2012, the number is $68,500. A party that seeks only solatium recovery and proves any liability on the defendant‘s part, recovers the entire amount for solatium, because this recovery is exempt from any reduction by virtue of the comparativenegligence statute,

B.G.’s, Inc. v. Gross

, 23 P.3d 691 (Colo. 2001), or any liability allocable to a nonparty tortfeasor, Smith v. Vincent , 77

P.3d 927 (Colo. 2003).

3. Punitive Damages . Pursuant to § 13-21-203, C.R.S., an award of punitive damages may not be sought in the complaint. The request to amend the complaint must wait until at least 60 days following the exchange of initial disclosures, and there must be ―prima facie proof of a triable issue.‖ Punitive damages may be imposed at 1:1 ratio to actual damages, though the court may increase the award to not more than a 3:1 ratio. The court may reduce the award if the deterrent effect has been accomplished, the subject conduct has ceased, or the purpose of such damages has otherwise been served. The award may be increased if the subject conduct has continued or the defendant acted in a willful and wanton manner while the action was pending.

II. Model Jury Instruction a. Damages for Wrongful Death.


Plaintiff, (name), has the burden of proving, by a preponderance of the evidence, the nature and extent of (his) (her) damages (and the damages of those the plaintiff represents). If you find in favor of the plaintiff, you must determine the total dollar amount of the damages, if any, of plaintiff

(and those that plaintiff represents), that were caused by the (insert appropriate description, e.g., "negligence") of the defendant(s), (name[s]),

(and) (,) (the [insert appropriate description, e.g., "negligence"], if any, of

[name of decedent], (and) (the [insert appropriate description, e.g.,

"negligence"], if any, of any designated nonparties).


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1. Any noneconomic losses, including grief, loss of companionship, impairment of the quality of life, inconvenience, pain and suffering, and emotional stress the plaintiff [and those the plaintiff represents] [has] [have] had to the present, and any grief, loss of companionship, impairment of the quality of life, inconvenience, pain and suffering, and emotional stress the plaintiff [and those the plaintiff represents] will have in the future;) (and)

2. Any economic losses, including reasonable funeral, burial, internment, or cremation expenses, and any net financial loss which the plaintiff has [and those the plaintiff represents have] had because of the death of [name of decedent]. The net financial loss is the same as the financial benefit the plaintiff [and those the plaintiff represents] might reasonably have expected to receive from [name of decedent] had [he]

[she] lived.)

In determining these damages, if any, you should consider the age, health, and life expectancy of (name of decedent), the age, health, and life expectancy of the plaintiff (and those the plaintiff represents), the (name of decedent's) industriousness, ability to earn money, willingness to assist the plaintiff (and those the plaintiff represents), and the nature of the relationship between (name of decedent) and the plaintiff (and between

[name of decedent] and those the plaintiff represents). b. Wrongful Death of Child – Determining Pecuniary Loss.

Colorado

Jury Instructions 10:4.

The net economic loss, if any, incurred by the plaintiff(s) as the parent(s) of (name of child) would be the reasonable value of any services (name of child) would have provided and earnings (he) (she) might have made while a minor together with any support (he) (she) might reasonably have been expected to provide the plaintiff(s) after (he) (she) became an adult, less the expenses the plaintiff(s) might reasonably have incurred in maintaining (name of child) and providing (him) (her) an education.

In determining the net economic loss, if any, you should consider (name of child)'s as well as the plaintiff('s)(s') ages, health, conditions of life, probable duration of their lives and their abilities to earn money. You should also consider (name of child)'s work habits and (his) (her) likelihood to aid and assist the plaintiff(s), taking into account not only the legal relationship between (name of child) and the plaintiff(s) but also the actual relationship between them as shown by acts of service or financial assistance, if any, provided by (name of child) to the plaintiff(s).

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CONNECTICUT

Jonathan Ciottone

Angelina Ioannou

Cheryl A. Possenti

Goldberg Segalla LLP

Hartford, Connecticut

(860) 760-3300


A minor child may only bring a civil action by a guardian or next friend

Orsi v. Senatore , 230 Conn. 459, 466-67, 645 A.2d 986 (1994). They are not a party or the action, as the real party plaintiff is the minor child. Botelho v. Curtis ,

28 Conn. Supp. 493, 495, 267 A.2d 675 (1970); Tulin v. Tulin , 124 Conn. 518,

522, 200 A. 819 (1938).

1.

Pecuniary Losses. Connecticut allows for the recovery of all pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and lost earnings and loss of future earnings capacity. Connecticut General

Statute §52-572h

2.

Parents’ Expenses.

The parent has a right to file an independent action to recover expenses paid for the child as a result of the third party‘s negligence. Connecticut General Statute §52-204;

Botelho v.

Curtis , 28 Conn. Supp. 496 A.2d 675 (1970).

3.

Caveat : Economic damages awards can be reduced by collateral source payments. These are payment made by most health care providers. The deduction is reduced by the premiums paid by the plaintiff or the employer. If the premiums paid exceed the collateral source payments then there is no deduction. Conn. Gen Stat. §52-225a

-225c

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II. Noneconomic Damages :

1.

Pain and Suffering. Physical pain and suffering and mental and emotional suffering, along with the loss of the ability to enjoy life‘s pleasures.

2.

Fear of Risk of Complications. Fear of increased risk of future medical complications. Marchetti v. Ramirez , 240 Conn. 49, 55

(1997); Seymour v. Carcia , 221 Conn. 473, 481 n.7 (1992); Petriello v.

Kalman , 215 Conn. 377, 392 n.7, 397-98 (1990).

3. Punitive Damages . Claims for reckless conduct, most common in motor vehicle claims, allow for recovery of double or triple damages.

Conn. Gen. Stat. § 14-295

III. Jury Instructions a. Civil Jury Instruction 3.4-1 Damages – General

The rule of damages is as follows. Insofar as money can do it, the plaintiff is to receive fair, just and reasonable compensation for all injuries and losses, past and future, which are proximately caused by the defendant's proven negligence. Under this rule, the purpose of an award of damages is not to punish or penalize the defendant for (his/her) negligence, but to compensate the plaintiff for (his/her) resulting injuries and losses. You must attempt to put the plaintiff in the same position, as far as money can do it, that (he/she) would have been in had the defendant not been negligent.

Our laws impose certain rules to govern the award of damages in any case where liability is proven. Just as the plaintiff has the burden of proving liability by a fair preponderance of the evidence, (he/she) has the burden of proving (his/her) entitlement to recover damages by a fair preponderance of the evidence. To that end, the plaintiff must prove both the nature and extent of each particular loss or injury for which (he/she) seeks to recover damages and that the loss or injury in question was proximately caused by the defendant's negligence. You may not guess or speculate as to the nature or extent of the plaintiff‘s losses or injuries.

Your decision must be based on reasonable probabilities in light of the evidence presented at trial. Injuries and losses for which the plaintiff should be compensated include those (he/she) has suffered up to and including the present time and those (he/she) is reasonably likely to suffer

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in the future as a proximate result of the defendant's negligence.

Negligence, as I previously instructed you, is a proximate cause of a loss or injury if it is a substantial factor in bringing that loss or injury about.

Once the plaintiff has proved the nature and extent of (his/her) compensable injuries and losses, it becomes your job to determine what is fair, just and reasonable compensation for those injuries and losses. There is often no mathematical formula in making this determination. Instead, you must use human experience and apply sound common sense in determining the amount of your verdict.

In a personal injury action, there are two general types of damages with which you must be concerned: economic and noneconomic damages.

Economic damages are monies awarded as compensation for monetary losses and expenses which the plaintiff has incurred, or is reasonably likely to incur in the future, as a result of the defendant's negligence. They are awarded for such things as the cost of reasonable and necessary medical care and lost earnings. Noneconomic damages are monies awarded as compensation for non-monetary losses and injuries which the plaintiff has suffered, or is reasonably likely to suffer in the future, as a result of the defendant's negligence. They are awarded for such things as physical pain and suffering, mental and emotional pain and suffering, and loss of diminution of the ability to enjoy life's pleasures.

I will now instruct you more particularly on economic damages. In this case, the plaintiff seeks to recover economic damages for each of the following types of monetary losses or expenses: <Here list each type of monetary loss or expense for which the plaintiff seeks, and the evidence potentially supports, an award of economic damages. Then, proceed to instruct on each such claim under the appropriate paragraph(s) below.

>

The plaintiff is entitled to recover the reasonable value of medical care and expenses incurred for the treatment of injuries sustained as a result of the defendant's negligence. The plaintiff must prove that the expenses

(he/she) claims were reasonably necessary and proximately caused by the defendant's negligence.

The plaintiff is also entitled to recover any loss of earnings or earning capacity that (he/she) proves to have been proximately caused by the defendant's negligence. With respect to lost earnings up to the present time, the plaintiff must prove that the defendant's negligence has prevented (him/her) from receiving the earnings for which (he/she) seeks compensation. (He/She) must do so by establishing a reasonable probability that (his/her) injury brought about a loss of earnings. The evidence must establish a basis for a reasonable estimate of that loss.

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The plaintiff is also entitled to damages for the loss of future earnings based upon the evidence as to what (he/she) probably could have earned but for the harm caused by the defendant's negligence and as to what the plaintiff can now earn through the earning period of (his/her) life.

Let me now turn to noneconomic damages. In this case, the plaintiff seeks to recover noneconomic damages for each of the following types of nonmonetary losses or injuries: <Here list each type of non-monetary loss or injury for which the plaintiff seeks, and the evidence potentially supports, an award of noneconomic damages. Then, proceed to instruct on each such claim under the appropriate paragraph(s) below.

>

A plaintiff who is injured by the negligence of another is entitled to be compensated for all physical pain and suffering, mental and emotional suffering, loss of the ability to enjoy life's pleasures, and permanent impairment or loss of function that (he/she) proves by a fair preponderance of the evidence to have been proximately caused by the defendant's negligence. As far as money can compensate the plaintiff for such injuries and their consequences, you must award a fair, just, and reasonable sum. You simply have to use your own good judgment in awarding damages in this category. You should consider the nature and duration of any pain and suffering that you find.

A plaintiff who is injured by the negligence of another is entitled to be compensated for mental suffering caused by the defendant's negligence for the results which proximately flow from it in the same manner as (he/she) is for physical suffering.

You should consider, as a separate category for awarding damages in this case, the length of time the plaintiff was, or will probably be, disabled from engaging in activities which (he/she) enjoys.

If you find that it is reasonably probable that (he/she) has suffered permanent physical harm, loss of function or disfigurement, the plaintiff is entitled to be compensated for that category of injury. Your award should be in accordance with the nature and extent of such physical impairment, loss of function or disfigurement and the length of time (he/she) is reasonably expected to endure its negative consequences. <Here it may be appropriate to instruct the jury as to the use of any evidence of life expectancy that has been introduced.>

The plaintiff is entitled to full compensation for all injuries and losses proximately caused by the defendant's negligence even though those injuries and losses are more serious than they otherwise would have been because of a pre-existing condition. You may not compensate the plaintiff for the pre-existing injury itself. However, the aggravation of such an

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injury, proximately caused by the defendant's negligence, is a proper item of noneconomic damages. b. Civil Jury Instruction 3.4-2 Damages - Double or Treble

In any civil action to recover damages resulting from (personal injury / wrongful death / damages to property) – as in this case – the jury, as the trier of fact, may award double or treble (triple) damages if the plaintiff has proved that the defendant has:

1. deliberately or with reckless disregard, operated a motor vehicle in violation of statute < insert appropriate statute and describe elements, definitions, and specific facts where appropriate >, and

2. that the violation was a substantial factor in causing such

(injury / death / damage to personal property).

You should understand that the phrase deliberately or with reckless disregard involves conduct that is more than negligence. It is conduct that indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. It is conduct that tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

If you find that has been proven, you are allowed to multiply any fair, just and reasonable damages that you award by either two or three. You are not obliged to do so but you may do so. That is solely within your discretion. c. Civil Jury Instruction 3.4-6 Damages - Compensation for

Increased Risk of Injury

The plaintiff claims that (he/she) has suffered an increased risk of

<alleged future complication> as a result of the defendant‘s negligence.

The plaintiff is entitled to recover damages for physical harm resulting from a failure to exercise reasonable care. If the failure to exercise reasonable care increases the risk that such harm will occur in the future, the plaintiff is entitled to compensation for the increased risk. In order to award this element of damages, you must find a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm. The increased risk must have a basis in the evidence. Your verdict may not be based on speculation. The plaintiff is entitled to compensation to the extent that the future harm is likely to occur as measured by multiplying the total compensation to which the plaintiff would be entitled if the harm in question were certain to occur by the proven probability that the harm in question will in fact occur.

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d. Civil Jury Instruction 3.4-8 Damages - Duty to Mitigate (or

Minimize)

You should also consider what efforts the plaintiff took to minimize the effects of (his/her) injury. One who has been injured by the negligence of another must use reasonable care, such as following doctor‘s instructions regarding the treatment of (his/her) injuries, to promote recovery and prevent any aggravation or increase of the injury. The plaintiff is not entitled to be compensated for any injury or aggravation of injury caused by (his/her) failure to minimize damages. Thus, you should reduce the damages awarded to the plaintiff to the extent you find that the plaintiff made (his/her) condition worse by not taking reasonable care to promote

(his/her) recovery or prevent any aggravation or increase of the injury. It is the defendant‘s burden to prove by a preponderance of the evidence that the plaintiff has failed to minimize (his/her) damages.


Conn. Gen. Stat. § 52-555 is the sole basis to bring a claim for wrongful death. Like any other claim on behalf of a minor child, this must also be brought by a parent or next friend. Botelho v. Curtis , 28 Conn. Supp. 493, 495, 267A.2d

675 (1970); Tulin v. Tulin , 124 Conn. 518, 522, 200 A. 819 (1938).


1. Economic Damages. The same economic damages allowed for negligence are also permitted in wrongful death claims.

2.

Funeral Costs. Also allowed are funeral expenses and any other reasonable or necessary expenses incurred as a result of the death such as autopsy costs. General Statutes § 52-555; General Statutes § 52-

555a; General Statutes § 52-572 (a) and (f); Carrano v. Yale-New

Haven Hospital , 279 Conn. 622, 650-51 (2006); Katsetos v. Nolan ,

170 Conn. 637, 657, 659 (1976); Floyd v. Fruit Industries, Inc.

, 144

Conn. 659, 669-76 (1957); Tesler v. Johnson , 23 Conn. App. 536, 541-

42 (1990), cert. denied, 217 Conn. 806 (1991).

3.

Lost earnings capacity. Recovery is allowed for the value of the decedent's lost earning capacity less deductions for (his/her) necessary living expenses taking into consideration that a present cash payment will be made. Carrano v. Yale-New Haven Hospital , 279 Conn. 622,

651 (2006). "Personal living expenses" do not include recreational

57

expenses, nor that proportion of living expenses properly allocable to the furnishing of food and shelter to members of the decedent's family other than himself. Carrano v. Yale-New Haven Hospital , 279 Conn.

622, 651 (2006).


1. Destruction of capacity to enjoy life‘s activities.

2. Compensation for the death itself.

3. Pain and suffering if the death was not instantaneous. Butler v. Steck,

146 Conn. 114 (1959); Sanderson v. Steve Snyder Enterprises, 196

Conn. 134 (1985).

III. Jury Instructions :

In addition to the model jury instructions above, these apply as to wrongful death cases:

Civil Jury Instruction 3.4-7 Damages - Wrongful Death a. Reasonable and Necessary Medical and Funeral Expenses

You may award damages for the reasonable and necessary medical, funeral and burial expenses. The plaintiff is entitled to recover the reasonable value of medical care and expenses incurred for the treatment of injuries sustained by the decedent as a result of the defendant's negligence. The plaintiff must prove that the expenses (he/she) claims were reasonably necessary and legally caused by the defendant's negligence.

b. Destruction of Earning Capacity

The destruction of earning capacity, that is, the capacity to carry on the particular activity of earning money, may be compensated. First, we address the probable net earnings, in the ordinary sense of that phrase, during the decedent's probable lifetime.

In measuring the compensation for the destruction of (Mr./Ms.) <name of decedent> 's earning capacity over (his/her) probable lifetime, it is proper for you to consider the salary or wages (Mr./Ms.) <name of decedent> had been earning before the injury which caused (his/her) death. This is not conclusive evidence; yet, it is evidence of the value of (his/her) earning capacity. It is likewise proper for you to consider (his/her) general

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experience as a wage earner and (his/her) qualifications for conducting a gainful occupation. Necessarily, the damages would be limited to that period of time which you find would have been (Mr./Ms.) <name of decedent >'s length of life had (he/she) not died.

Next, you should understand that the probable income taxes must be deducted from (his/her) probable lifetime earnings to get any fair or proper basis for assessing reasonable compensation for the loss caused by the destruction of (his/her) earning capacity. For all practical purposes, the only usable earnings are net earnings after payment of such taxes.

[< If expert testimony was offered on economic loss: > You may recall the testimony of < name of expert > who described (his/her) formula in reducing to present value lost earnings over the decedent's working lifetime. (He/She) estimated what the wages would have been had the decedent lived to work from age___ through age ___.]

Next, the probable cost of future personal living expenses must also be deducted from an award of reasonable compensation for the total destruction of (his/her) earning capacity. The phrase "personal living expenses" refers to those personal expenses that would have been reasonably necessary for (him/her) to spend to maintain (his/her) lifestyle in order to keep (himself/herself) in such a condition of health and wellbeing that (he/she) could enjoy life's activities before (his/her) death.

Accordingly, in determining the loss to the plaintiff, you must subtract probable income taxes and necessary personal living expenses.

Now I will instruct you on noneconomic damages. c. Destruction of Capacity to Enjoy Life's Activities

Damages are also allowed for the destruction of (Mr./Ms.) <name of decedent> 's capacity to enjoy life's activities.

Evidence has been presented as to those incidents of life that (Mr./Ms.)

<name of decedent> enjoyed, including family, work, sports, recreation and other aspects of life. You may consider those areas in connection with this claim and award damages for this loss. d. Compensation for the Death Itself

The rule is that insofar as money can do it, the plaintiff may be awarded fair, just and reasonable compensation for the loss of life. As in the other categories of damages, there is no precise mathematical formula for a jury to apply.

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e. Pain and Suffering

< In the event the death was not instantaneous, see relevant portions of

Damages - General, Instruction 3.4-1 > f. Loss of Consortium

< See Damages - Loss of Consortium, Instruction 3.4-3 where applicable.

> g. Double or Treble Damages, General Statutes § 14-295

< See Damages - Double or Treble, Instruction 3.4-2 where applicable .>

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DELAWARE

Christopher Viceconte

Stephen J. Finley, Jr.

Gibbons P.C.

Wilmington, Delaware

(302) 295-4875


I. Economic Damages

1. Medical Expenses.

Medical expenses and other related costs, actually incurred, resulting from a defendant‘s liability-producing conduct are recoverable. A minor-plaintiff may also recover estimated future medical expenses upon a showing of a reasonable probability that such expenditures will be necessary. Expert testimony is typically required to establish the amount of estimated future medical expenses and related costs. See Weiner v. Wisniewski , 213 A.2d 857 (Del. 1965).

An award of future medical expenses should be reduced to its present value. See Thorpe v. Bailey , 386 A.2d 668 (Del. 1978).

2. Loss of Earnings and Future Earning Capacity.

Loss of earnings

(or other item of economic value relating to employment) and, as is more likely to be an issue in a case involving a minor, loss of future earning capacity, is a recoverable element of damages in a minorplaintiff‘s personal injury action. In order to prove a claim for loss of future earning capacity, a plaintiff must present sufficient evidence as to the ―reasonable probability‖ that his or her future earnings will be diminished because of an injury. See Henne v. Balick , 146 A.2d 394

(Del. Super. Ct. 1958). Expert testimony is required to support such a claim. See Jardel Co. v. Hughes , 523 A.2d 518 (Del. 1987). The impact of income taxes, deemed too speculative, should not be considered in determining an award for lost future earnings. See

Gushen v. Penn Central Transp. Co.

, 280 A.2d 708 (Del. 1971). An award for lost future earnings must be reduced to its present value.

See Steppi v. Stromwasser , 297 A.2d 26 (Del. 1972).

II. Non-Economic Damages

1. Pain and Suffering.

A plaintiff is entitled to recover the amount that would reasonably compensate him or her for any past and future pain and suffering incurred by reason of the injuries sustained. There must be a reasonable probability that the pain and suffering was or will be caused by the injuries. Pain and suffering damages may include mental as well as physical suffering, and are to be determined based

61

upon the particular facts of each case. See Prettyman v. Topkis , 3 A.2d

708 (Del. Super. Ct. 1938).

2. Compensation for Permanent Nature of Injury.

A minor plaintiff may recover damages for limitations relating to the permanent nature of the claimed injury. A plaintiff seeking such damages must show a reasonable probability of the permanence of the injury. See Laskowski v. Wallis , 205 A.2d 825 (Del. 1964). In assessing these damages, a jury may consider the life expectancy of the plaintiff, as well as the activities which the impairment impedes or prevents. See, e.g., Winter v. Pennsylvania R. Co.

, 68 A.2d 513 (Del. Super. Ct. 1949).

3. Punitive Damages.

Punitive damages are recoverable in personal injury actions where a tortfeasor‘s conduct is determined to be intentional, reckless, wanton, willful or undertaken with a disregard for the safety of another. See Jardel Co. v. Hughes , 523 A.2d 518 (Del.

1987); Strauss v. Biggs , 525 A.2d 992 (Del. 1987). An award of compensatory damages is a predicate to a punitive damages award, and such an award should be reasonably proportionate to the amount of compensatory damages awarded. See Stephenson v. Capano Dev.,

Inc.

, 462 A.2d 1069 (Del. 1983). Evidence relating to a defendant‘s financial circumstances may be considered by a jury in determining punitive damages. See Strauss v. Biggs , 525 A.2d 992 (Del. 1987).

III. Pattern Jury Instructions a. Measure of Damages - Personal Injury. DPJI 22.1

If you do not find that [ plaintiff's name ] has sustained [ his/her ] burden of proof, the verdict must be for [ defendant's name ]. If you do find that

[ plaintiff's name ] is entitled to recover for damages proximately caused by the [__accident / injury__], you should consider the compensation to which [ he/she ] is entitled.

The purpose of a damages award in a civil lawsuit is just and reasonable compensation for the harm or injury done. Certain guiding principles must be employed to reach a proper damages award. First, damages must be proved with reasonable probability and not left to speculation.

Damages are speculative when there is merely a possibility rather than a reasonable probability that an injury exists. While pain and suffering are proper elements on which to determine monetary damages, the damages for pain and suffering must be fair and reasonably determined and may not be determined by a fanciful or sentimental standard. They must be determined from a conclusion about how long the suffering lasted, the degree of suffering, and the nature of the injury causing the suffering.

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If you find for [ plaintiff's name ], you should award to [ him/her ] the sum of money that in your judgment will fairly and reasonably compensate

[ him/her ] for the following elements of damages that you find to exist by a preponderance of the evidence:

(1) compensation for pain and suffering that [ he/she ] has suffered to date;

(2) compensation for pain and suffering that it is reasonably probable that [ plaintiff's name ] will suffer in the future;

(3) compensation for permanent impairment;

(4) compensation for reasonable and necessary medical expenses incurred to date;

(5) compensation for reasonable and necessary medical expenses that it is reasonably probable that [ plaintiff's name ] will incur in the future;

(6) compensation for loss of earnings suffered to date; and

(7) compensation for earnings that will probably be lost in the future.

In evaluating pain and suffering, you may consider its mental as well as its physical consequences. You may also consider such things as discomfort, anxiety, grief, or other mental or emotional distress that may accompany any deprivation of usual pleasurable activities and enjoyments.

In evaluating impairment or disability, you may consider all the activities that [ plaintiff's name ] used to engage in, including those activities for work and pleasure, and you may consider to what extent these activities have been impaired because of the injury and to what extent they will continue to be impaired for the rest of [ his/her ] life expectancy. [It has been agreed that a person of [ plaintiff's name ]'s age and sex would have a life expectancy of ___ years.]

The law does not prescribe any definite standard by which to compensate an injured person for pain and suffering or impairment, nor does it require that any witness should have expressed an opinion about the amount of damages that would compensate for such injury. Your award should be just and reasonable in light of the evidence and reasonably sufficient to compensate [ plaintiff's name ] fully and adequately. b. Measure of Damages - Injury to Minor. DPJI 22.6.

{ Comment : Awarding damages to an injured child often poses a difficult problem to the jury, especially with regard to such items as loss of future

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earnings and long-term pain and suffering. In such circumstances, it may be necessary to emphasize that the jury use its common sense and do the best it can with criteria enumerated in Jury Instr. No. 21.1. A special instruction, however, should not be necessary .} c. Punitive Damages.

DPJI 22.27.

If you decide to award compensatory damages to [ plaintiff's name ], you must determine whether [ defendant's name ] is also liable to [ plaintiff's name ] for punitive damages.

Punitive damages are different from compensatory damages.

Compensatory damages are awarded to compensate the plaintiff for the injury suffered. Punitive damages, on the other hand, are awarded in addition to compensatory damages.

You may award punitive damages to punish a party for outrageous conduct and to deter a party, and others like [ him/her/it ], from engaging in similar conduct in the future. To award punitive damages, you must find by a preponderance of the evidence that [ defendant's name ] acted

[ intentionally/recklessly ]. Punitive damages cannot be awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.

Intentional conduct means it is the person‘s conscious object to engage in conduct of that nature. Reckless conduct is a conscious indifference that amounts to an "I don't care" attitude. Reckless conduct occurs when a person, with no intent to cause harm, performs an act so unreasonable and dangerous that [ he/she/it ] knows or should know that there is an eminent likelihood of harm that can result. Each requires that the defendant foresee that [ his/her/its ] conduct threatens a particular harm to another.

The law provides no fixed standards for the amount of punitive damages.

In determining any award of punitive damages, you may consider the nature of [ defendant’s name ]‘s conduct and the degree to which the conduct was reprehensible. Finally, you may assess an amount of damages that will deter [ defendant's name ] and others like [ him/her/it ] from similar conduct in the future. You may consider [ defendant's name ]'s financial condition when evaluating deterrence. Any award of punitive damages must bear a reasonable relationship to [ plaintiff's name ]'s compensatory damages. If you find that [ plaintiff's name ] is entitled to an award of punitive damages, state the amount of punitive damages separately on the verdict form.

{ Comment: Generally the jury will decide liability and compensatory damages before hearing evidence on assets and being instructed on

64

punitive damages. If both compensatory and punitive damages go to the jury at the same time, the jury should also be instructed:

{ Defendant’s name ]‘s financial condition must not be considered in assessing compensatory damages.}

Damages Recoverable in an Action arising from the Death of a Minor

Delaware recognizes two distinct causes of action when a person dies as a result of the tortious conduct of another: a survival action under 10 Del. C.

§§3701 and 3704 and a wrongful death action pursuant to 10 Del. C. §§3721 -

3725.

I.

Damages Recoverable in a Minor’s Survival Action

A survival action allows the executor or administrator of the decedent‘s estate to pursue an action which the decedent had prior to his or her death. 10

Del. C. §3701; Magee v. Rose, 405 A.2d 143 (Del. Super. Ct. 1979).

A. Economic Damages


As in the case of a personal injury action, medical expenses and other related costs, actually incurred, from the date of the injury until the date of death, resulting from a defendant‘s liability-producing conduct are recoverable in a survival action. See Magee v. Rose, 405 A.2d 143 (Del. Super. Ct.

1979).

2.

Loss of Earnings. As in the case of a personal injury action, lost earnings from the time of injury to the time of death is a recoverable element of damages in a survival action.

B. Non-Economic Damages

1.

Pain and Suffering.

A decedent‘s conscious pain and suffering from the time of injury until death is a proper element of recovery in a survival action. It is the plaintiff‘s burden to prove, by a preponderance of the evidence, an appreciable interval of conscious pain and suffering after the time of injury and before death. Absent such proof, compensatory damages for pain and suffering are not recoverable. See Magee v. Rose, 405 A.2d 143

(Del. Super. Ct. 1979). In addition, recovery of damages for the hedonic value of the portion of the decedent‘s life extinguished by the defendant‘s tortious conduct are not recoverable in a survival action. However, a plaintiff may offer evidence of the hedonic value of the decedent‘s life to the extent relevant to a measure of the decedent‘s pain and suffering in the time between the injury

65

and death. See Sterner v. Wesley College, Inc.

, 747 F. Supp. 263

(D. Del. 1990).

2. Physical Impairment.

Compensation may be awarded for physical impairment resulting from a defendant‘s tortious conduct for the period of time between the decedent‘s injury and death.

See, e.g., Lee v. A.C. & S. Co.

, 1987 Del. Super. LEXIS 1301 (Del.

Super. July 22, 1987).


Punitive damages are available in a survival action (to the extent available in a personal injury action) for the pain and suffering incurred by the decedent before death. See

Reynolds v. Willis , 209 A.2d 760 (Del. 1965). However, punitive damages are not available where there is no award of compensatory damages for a decedent‘s conscious pain and suffering. See Magee v. Rose, 405 A.2d 143 (Del. Super. Ct.

1979).

II.

Damages Recoverable in a Minor’s Wrongful Death Action

Under the Delaware Wrongful Death Act, an action may be brought for the benefit of the spouse, parent, child and siblings of the deceased person. 10

Del. C. §3724. In determining the amount of damages to be awarded, ―the court or jury shall consider all the facts and circumstances and from them fix the award at such sum as will fairly compensate for the injury resulting from the death.‖ 10

Del. C. §3724(d).

A. Economic Damages

1.

Loss of Pecuniary Benefits.

Damages are recoverable for the beneficiaries‘ ―deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries that would have resulted from the continued life of the deceased.‖ 10 Del. C. §3724(d)(1). This is measured as the portion of the decedent‘s likely earnings during his or her lifetime that would have been left as an estate and which would have gone to the next of kin. In the case of a minor plaintiff, it has been held that ―[t]he recovery in an action for the wrongful death of a child of tender years is the jury‘s estimate of the value of the estate the child probably would have earned, saved and left to his next of kin at the end of his life expectancy. This sea of pure conjecture may be otherwise described as the jury‘s estimate of the present money value of the child‘s life to the estimated prospective estate of the child.‖ Cann v. Mann Constr.

Co., 93 A.2d 741 (Del. Super. Ct. 1952). See also Taylor v.

Riggin , 7 A.2d 903 (Del. Super. Ct. 1939). Tax consequences should not be considered by the jury is assessing this element of

66

wrongful death damages. See High v. State Highway Dep’t , 307

A.2d 799 (Del. 1973).

2.

Loss of Support.

Damages are recoverable for the beneficiaries‘

―loss of contributions for support‖ that would have resulted from the continued life of the deceased. 10 Del. C. §3724(d)(2).

3. Loss of parental, marital and household services, including the reasonable cost of providing for the care of minor children.

10

Del. C. §3724(d)(3).

4.

Reasonable funeral expenses.

Reasonable funeral expenses not to exceed $7,000, or the amount designated in § 5546(a) of Title

29 , whichever is greater, are recoverable. 10 Del. C. §3724(d)(4).

B. Non-Economic Damages

1.

Mental anguish. Pursuant to 10 Del. C. §3724 (d)(5), damages for mental anguish resulting from the decedent‘s death to the surviving spouse and next of kin of such deceased person are available. However, when mental anguish is claimed as a measure of damages, such claim ―will be applicable only to the surviving spouse, children and persons to whom the deceased stood in loco parentis at the time of the injury which caused the death of the deceased, parents and persons standing in loco parentis to the deceased at the time of the injury which caused the death of the deceased (if there is no surviving spouse, children or persons to whom the deceased stood in loco parentis ), and siblings (if there is no surviving spouse, children, persons to whom the deceased stood in loco parentis at the time of the injury, parents or persons standing in loco parentis to the deceased at the time of the injury which caused the death of the deceased).‖ A claimant may potentially recover damages for his or her mental anguish without a showing of physical injury. See Spencer v. Goodill , 2009 Del.

Super. LEXIS 425 (Del. Super. Nov. 13, 2009). Hedonic damages are not available in a wrongful death action, and evidence of the hedonic value of the decedent‘s life is inadmissible as either a distinct basis for recovery or as a purported measure of a beneficiary‘s claimed mental anguish. See Sterner v. Wesley

College , 747 F. Supp. 263 (D. Del. 1990).

2.

No punitive damages.

Punitive damages are not available in a wrongful death action. Reynolds v. Willis , 209 A.2d 760 (Del.

1965).

67

III. Pattern Jury Instructions a. Measure of Damages - Wrongful Death. DPJI 22.8.

The law recognizes that when a person dies as the result of another‘s wrongful conduct, there is injury not only to the deceased but also to immediate family members. While it is impossible to compensate the deceased for the loss of [ his/her ] life, it is possible to compensate certain family members for the losses that they have suffered from the death of a loved one. For this reason, Delaware law provides that when a person dies as a result of another‘s wrongful act, certain family members may recover fair compensation for their losses resulting from the death. In determining a fair compensation, you may consider the following:

(1) the loss of the expectation of monetary benefits that would have resulted from the continued life of [ decedent’s name ]; that is, the expectation of inheritance that [ name of family beneficiaries ] have lost;

(2) the loss of the portion of [ decedent’s name ]‘s earnings and income that probably would have been used for the support of [ names of family beneficiaries ];

(3) the loss of [ decedent’s name

]‘s parental, marital, and household services, including the reasonable cost of providing for the care of minor children;

(4) the reasonable cost of funeral expenses, not to exceed

$7000; and

(5) the mental anguish suffered by [ names of eligible family beneficiaries ] as a result of [ decedent’s name ]‘s death.

The term ―mental anguish‖ encompasses the grieving process associated with the loss of a loved one. You may consider that the grieving process, accompanied by its physical and emotional upheaval, will be experienced differently by different people, both in its intensity and in its duration.

The ability to cope with the loss may be different for each person.

There is no fixed standard or measurement. You must determine a fair and adequate award through the exercise of your judgment and experience after considering all the facts and circumstances presented to you during the trial.

While [ plaintiff’s name

] carries the burden of proving [ his/her/their ] damages by a preponderance of the evidence, [ he/she/they ] [ is/are ] not required to claim and prove with mathematical precision exact sums of money representing their damages for mental anguish. It is required only

68

that [ plaintiff’s name

] furnish enough evidence so that you, the jury, can make a reasonable determination of those damages.

69

FLORIDA

H. Hamilton Rice, III

Courtney L. Rice

Bush Graziano & Rice, P.A.

Tampa, Florida

(813) 228-7000



1. Property Damages . Property damages are recoverable.

2. Medical Expenses and other Pecuniary Losses . Medical expenses incurred as a result of such wrongful or negligent act or omission are recoverable. See, e.g. City Stores Co. v. Langer , 308 So.2d 621 (Fla.

3d DCA 1975).

3. Lost Wages and Lost Earning Capacity . Loss of Wages or Wage-

Earning Capacity is a recoverable expense. In order to recover future economic losses, these losses must be shown with established with

―reasonable certainty.‖

See, e.g.

, Benjamin v. Diel , 831 So.2d 1227

(Fla. 4th DCA 2004). The Supreme Court has stated that while permanent injury is not required for future economic damages, it is a

―significant factor‖ in establishing reasonable certainty. Auto-Owners

Insurance Assoc. v. Tompkins , 651 So.2d 89, 91 (Fla. 1995).

4. Loss of Support and Services. This right belongs to the parents of a minor child.


1. Pain, Suffering, Disability, Disfigurement, Mental Anguish and

Loss of Capacity for the Enjoyment of Life. This recovery right belongs to the minor. Florida courts have specifically held that there is no recovery by a parent in a personal injury action for the suffering, pain, embarrassment and/or humiliation caused the parent by injuries of the child. See, e.g., City Stores Co. v. Langer , 308 So.2d 621 (Fla.

3d DCA 1975).

2. Loss of Filial Consortium. The Florida Supreme Court first recognized the right of the parent of an injured child to recover for permanent loss of filial consortium in United States v. Dempsey , 635

So.2d 961 (Fla. 1994), which is separate from the common law right to recover loss of support and services. This cause of action only exists where there is loss of filial consortium ―as a result of a significant

70

injury resulting in the child‘s permanent total disability.‖

Id. at 965.

The Florida Supreme Court defined ―consortium‖ to include ―the loss of companionship, society, love, affection, and solace of the injured child, as well as ordinary day-to-day services that the child would have rendered.‖ Id. at 965. These damages are limited to the period until the minor child attains majority. See, Cousins Club Corp. v. Silva,

869 So. 2d 719 (Fla. 4th DCA 2004); See also , Broward Co. School

Board v. Cruz , 761 So. 2d 388, 396 (Fla. 4th DCA 2000), aff’d

, 800

So.2d 213 (Fla. 2001)

3. Punitive Damages . § 768.72, Fla. Stat. (2011). In Florida, before a claim for punitive damages can be asserted in a pleading, there must be a ―reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.‖ § 768.72(1), Fla. Stat. Punitive damages are permissible only where the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. § 768.72, Fla. Stat. (2011)

―Intentional misconduct‖ is defined so as to require actual knowledge of the wrongfulness of the conduct and knowledge of the high likelihood of harm as a result of the conduct. There is a higher standard for imposing punitive damages on an employer, principal or an entity. A finding of intentional misconduct or gross negligence by an individual must be made, as well as a finding by the trier of fact that the employer/principal/entity actively participated in the conduct, ratified/condoned/consented to the conduct, or that the employer/principal/entity itself engaged in conduct that was grossly negligent and contributed to the claimant‘s injury. § 768.72(3), Fla.

Stat. (2011). A greater weight of the evidence standard applies to the award of damages, while the clear and convincing evidence standard applies to the issue of entitlement to punitive damage . § 768.725, Fla.

Stat. (2011).


Negligence – General Instruction – Personal Injury. Florida Supreme

Court Jury Instruction § 501.1(b), 501.2(a), (b), (c).

If your verdict is for Defendant(s) you will not consider the matter of damages. But, if your verdict is for Plaintiff you should award Plaintiff an amount of money that the greater weight of the evidence shows will fairly and adequately compensate him/her for his/her loss/injury/damage, including any damage Plaintiff is reasonably certain to incur in the future.

You shall consider the following elements:

71

a.

Any bodily injury sustained by Plaintiff and any resulting pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, or loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future. There is no exact standard for measuring such damage. The amount should be fair and just in the light of the evidence. b.

The reasonable value or expense of hospitalization and medical and nursing care and treatment necessarily or reasonably obtained by (claimant) in the past or to be so obtained in the future. c.

The reasonable value or expense of hospitalization and medical and nursing care and treatment necessarily or reasonably to be obtained by (minor claimant) after he/she reaches the age of

(legal age). d.

Any loss of ability to earn money sustained in the past and any such loss in the future.


In Florida, a minor child‘s personal injury action must be brought be a guardian or next friend. Wilkie v. Roberts, 109 So. 225 (Fla. 1926); See also,

Rule 1.210, Fla. R. Civ. P. The parent of an injured minor child has the right to assert independent, individual claims to recover loss of support and services of their minor child through the age of majority, as well as medical expenses ―in effecting a cure‖ through the age of majority. See, L.H. Youngblood v. Taylor, 89

So.2d 503 (Fla. 1956); See also , Wilkie, 109 So. at 227 (Fla. 1926). However, the right to recover future medical expenses past the age of majority belongs to the minor. See, e.g., Brown v. Caldwell , 389 So. 2d 287, 288 (Fla. 1st DCA 1980).

There is an exception to this general rule where an evidentiary showing is made that the minor child will be unable to support himself, due to mental or physical deficiency, past the age of majority. Id. at 289.


In Florida, the Florida Wrongful Death Act sets out the damages recoverable in a wrongful death action. See, § 766.16, et seq . A ―survivor‖ of a deceased minor child is entitled to recover damages for the death of a minor child under Florida‘s Wrongful Death Act. Fla. Stat. § 768.16, et seq . (2011).

―Survivor‖ is defined to include ―parents,‖ while ―minor children‖ is defined within the statute as ―children under 25 years of age.‖ Fla. Stat. § 768.18. A

Florida wrongful death action, however, must be brought by the personal representative of the decedent‘s estate, who shall recover damages for the decedent‘s ―survivors‖ and the estate. Fla. Stat. § 768.20.

72

Notably, the Florida Supreme Court has not yet recognized the right of a surviving parent to recover for the wrongful death of a stillborn child under the

Wrongful Death Act, as that stillborn child is not considered a ―person‖ within the meaning of the Act. Tanner v. Hartog , 696 So.2d 705, 706 (Fla. 1997). [The

Court still recognizes a common law right of action for negligent stillbirth, which permits a parent to recover emotional damages as a result of the negligent death of a stillborn fetus. Tanner , 696 So.2d at 708.] On the other hand, if a fetus survives after birth and subsequently dies, there is a right of action under the

Wrongful Death Act. In essence, a showing must be made of existence ―separate and independent from the mother‖ after birth before recovery under the Wrongful

Death Act is permitted. See Duncan v. Flynn , 358 So.2d 178 (Fla. 1978)


1. Medical and Funeral Expenses . Funeral and medical expenses due to the decedent‘s injury or death may be recovered by a survivor who has paid them. Also, a personal representative can recover all medical or funeral expenses due to the decedent‘s injury or death paid on behalf of the decedent, minus those recoverable by a survivor. See §

768.21(4), (6)(b), Fla. Stat.

2. Lost Support and Services and Future Loss of Support and

Services . These damages are recoverable by each survivor. Factors to be considered with respect to a loss of support and services award are the survivor‘s relationship to the decedent, the amount of the decedent‘s probable net income available for distribution to the survivor and the replacement value of the decedent‘s services.

See §

768.21(1), Fla. Stat. Florida courts have indicated that the expense of maintaining a child through the age of majority will normally exceed the value of any lost services, in the absence of extraordinary income producing abilities. See , Gresham v. Courson , 177 So. 2d 33 (Fla. 1 st

DCA 1965). In the case of parents who are divorced at the time of the minor child‘s death, the parent who actually supported the minor child

(without regard to any court order) has the right to recover for loss of support and services. McDonald v. Forman , 238 So.2d 131, 132 (Fla.

4th DCA 1970).

3. Loss of earnings from the date of injury to date of death. The personal representative, on behalf of the decedent‘s estate, may recover these damages.

See § 768.21(6), Fla. Stat.


1. Mental Pain and Suffering. The parent(s) of a deceased minor child can recover damages for mental pain and suffering from the date of injury. See § 768.21(4), Fla. Stat.

73

2. Punitive Damages . § 768.72, Fla. Stat. (2011). In Florida, before a claim for punitive damages can be asserted in a pleading, there must be a ―reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.‖ § 768.72(1), Fla. Stat. Punitive damages are permissible only where the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. § 768.72, Fla. Stat. (2011)

―Intentional misconduct‖ is defined so as to require actual knowledge of the wrongfulness of the conduct and knowledge of the high likelihood of harm as a result of the conduct. There is a higher standard for imposing punitive damages on an employer, principal or an entity. A finding of intentional misconduct or gross negligence by an individual must be made, as well as a finding that the employer/principal/entity actively participated in the conduct, ratified/condoned/consented to the conduct, or that the employer/principal/entity itself engaged in conduct that was grossly negligent and contributed to the claimant‘s injury. § 768.72(3), Fla.

Stat. (2011). A greater weight of the evidence standard applies to the award of damages, while the clear and convincing evidence standard applies to the issue of entitlement to punitive damage . § 768.725, Fla.

Stat. (2011).


Wrongful Death. Florida Supreme Court Jury Instruction – § 502.1(b),

502.2(a), (b), (c), (f), (g) and (h).

If your verdict is for Defendant, you will not consider the matter of damages. But, if your verdict is for Personal representative, you should award decedent‘s personal representative an amount of money that the greater weight of the evidence shows will fairly and adequately compensate decedent‘s estate and decedent‘s survivors for their damages, including any damages that the estate and the survivors are reasonably certain to incur or experience in the future.

Damages for Estate

In determining the damages recoverable on behalf of

(decedent‘s) estate, you shall consider the following elements:

74

a. Lost earnings:

The estate‘s loss of earnings of decedent from the date of injury to the date of death, less any amount of monetary support you determine a survivor lost during that period. b. Lost accumulations:

The estate‘s loss of net accumulations: ―Net accumulations‖ is the part of decedent‘s net income [from salary or business] after taxes, including pension benefits

[but excluding income from investments continuing beyond death], which decedent, after paying his personal expenses and monies for the support of his/her survivors, would have left as part of his/her estate if he/she had lived a normal life expectancy. c. Medical or funeral expenses:

Medical or funeral expenses due to decedent‘s injury or death which have become a charge against decedent‘s estate or were paid by or on behalf of (decedent) by one other than a survivor.

Damages for Surviving Parents

In determining any damages to be awarded decedent‘s personal representative for the benefit of decedent‘s surviving parent(s), you shall consider certain additional elements of damage for which there is no exact standard for fixing the compensation to be awarded. Any such award should be fair and just in the light of the evidence regarding the following elements: a.

Mental Pain and Suffering of Parents

The mental pain and suffering of [parent(s)] as a result of the injury and death of (child). In determining the duration of mental pain and suffering, you may consider the life expectancies of the surviving parent(s) together with the other evidence in the case. b.

Lost Support and Services

The survivor‘s loss, by reason of decedent‘s injury and death, of decedent‘s support and services including interest at (legal rate) on any amount awarded for such loss from the date of injury to the date of death. In determining the

75

duration of any future loss, you may consider the joint life expectancy of the survivor(s) and decedent.

In evaluating past and future loss of support and services, you shall consider the survivor‘s relationship to decedent, the amount of decedent‘s probable net income available for distribution to the survivor and the replacement value of

(decedent‘s) services to the survivor(s)…..

c. Medical and funeral expenses paid by survivor:

Medical or funeral expenses due to decedent‘s injury or death paid by any survivor.

76

GEORGIA

Charles L. Clay, Jr.

Brannon J. Arnold

Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC

Atlanta, Georgia

(404) 876-2700


I. Economic/Special Damages:

Special damages are defined as those which actually flow from a tortious act and must be proven in a specific amount. O.C.G.A. §51-12-2.

1.

Medical and Other Related Expenses. To recover past medical expenses in a personal injury action, a plaintiff must prove that such expenses arose from the injury sustained and were reasonable and necessary. Barnes v. Cornett , 134 Ga. App. 120, 120-21, 213 S.E.2d

703, 705 (1975); see also O.C.G.A. §51-12-7 (providing that a plaintiff can recover for ―necessary expenses consequent upon an injury‖). The plaintiff has the burden of proving the amount he is entitled to receive with reasonable certainty. Lester v. S.J. Alexander,

Inc ., 127 Ga. App. 470, 471, 193 S.E.2d 860, 861 (1972). However,

Georgia‘s collateral source rule precludes a defendant from introducing evidence that the plaintiff received benefits from a third party who is not a joint tortfeasor. Rabun & Associates Const., Inc. v.

Berry , 276 Ga. App. 485, 490, 623 S.E.2d 691, 696 (2005). Therefore, a plaintiff is allowed to introduce the total amount of medical bills, and recover for same, even though the amounts actually paid by the plaintiff or his insurer are less than the amounts shown in the bills; however, where the defendant, or its insurers, have paid medical expenses prior to judgment, the defendant is entitled to a set-off against those payments in order to prevent double recovery. Link and

Hertz, Georgia Law of Damages, § 13:3 (2009).

2.

Future Medical and Other Related Expenses .

In order to recover future medical expenses, a plaintiff must prove both that the injury will require future medical attention and that the amount of medical expenses incurred can be proven with reasonable certainty. Bennett v.

Haley , 132 Ga. App. 512, 514-15, 208 S.E.2d 302, 306 (1974). Any recovery for future medical expenses must be reduced to present cash value. Hughes v. Brown , 109 Ga. App. 578, 136 S.E.2d 403 (1964).

―Under Georgia law, it is conclusively presumed that an award of compensation will earn interest at the rate of 5% per annum." Meader

By and Through Long v. U.S.

, 881 F.2d 1056, 1058 (citing O.C.G.A. §

51-12-13) ("It shall be lawful for the trier of fact, in determining the

77

present value of any future earnings, annuity, or amounts, to reduce the same to the present value upon the basis of interest calculated at 5 percent per annum"); Piggly-Wiggly S., Inc. v. Tucker, 139 Ga. App.

873, 877, 229 S.E.2d 804, 807 (1976) ("the General Assembly has established that a five percent figure shall be used for reduction of future expenses to present values‖). "The award must therefore be discounted to reflect such interest." Id.

However, because a plaintiff‘s economist‘s will usually opine that the cost of medical expenses rise more than average inflation, there is usually little or no discount obtained for future medical expenses.

3.

Loss of Earnings or Earning Capacity. An injured plaintiff may recover for diminished capacity to labor, lost earning capacity and/or loss of future earnings. See Myrick v. Stephanos , 220 Ga. App. 520,

521, 472 S.E.2d 431, 434 (1996). Recovery for ―lost earning capacity‖ is an item of special damages which requires some evidence upon which a jury can base with reasonably certainty a finding as to the amount. Leggett v. Benton Cros. Drayage & Storage Co ., 138 Ga.

App. 761, 765, 227 S.E.2d 397, 400-01 (1976). Although proof of the plaintiff‘s actual earnings is not essential, there must be some evidence tending to show what the plaintiff was capable of earning both before and after the injury. Dept. of Human Resources v. Thomas , 217 Ga.

App. 174, 178-79, 456 S.E.2d 724, 727 (1995). Recovery for the separately recognized claim of ―loss of future earnings‖ is permitted where there is proof of loss of definite earnings that would have been received in the future but for an injury, even though the injury is not permanent. Myrick , 220 Ga. App. at 521, 472 S.E.2d at 434.

―Diminished capacity to labor‖ is an element of pain and suffering, and the rule for determining such damages is the enlightened conscience of fair and impartial jurors. City Council of Augusta v.

Drawdy , 75 Ga. App. 543, 547, 43 S.E.2d 569, 572 (1949). These damages must also be reduced to present cash value.

II. Non-Economic/General Damages:

General damages are those which the law presumes to flow from any tortious act. O.C.G.A. § 51-12-2. These damages may be recovered without proof of any specific amount of damages. Id .

1.


An injured party can recover for pain and suffering for the past, present and future. Aretz v. U.S

., 456 F.Supp.

397, 401-402 (S.D. Ga. 1978), judgment aff’d

, 604 F.2d 417 (5 th

Cir.

1979), on reh’g

, 635 F.2d 485 (5 th

Cir. 1982), certified question answered , 248 Ga. 18, 280 S.E.2d 345 (1981). Pain and suffering is a generic name for several types of damages, including: mental and physical pain and suffering; past anxiety or worry proximately

78

attributable to an injury; mental distress caused by impairment of the enjoyment of life; disfigurement and deformity; and loss of earning capacity. Id . The measure of damage in such cases is the enlightened conscience of impartial jurors. Dept. of Human Resources v. Johnson ,

264 Ga. App. 730, 738, 592 S.E.2d 124, 131 (2003). This is a highly subjective standard and plaintiff‘s attorneys will often play on the emotions of the jury in order to inflate recovery of these damages.

Future pain and suffering damages are not reduced to net present value. Chancey v. Shirah , 96 Ga. App. 91, 99 S.E.2d 365 (1957).

2.

Punitive Damages.

An award of actual or compensatory damages is necessary to support an award of punitive damages. Weprin v.

Peterson , 736 F. Supp. 1131, 1132 (N.D. Ga. 1988). Punitive damages may be awarded only in tort actions in which it is proven by clear and convincing evidence that the defendant‘s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of acre which would raise the presumption of conscious indifference to consequences. O.C.G.A. §51-12-5.1(b). For any action not involving product liability ( see O.C.G.A. §51-12-5.1(e)), or a specific intent to harm or the use of alcohol or drugs ( see O.C.G.A.

§51-12-5.1(f)), the amount of punitive damages which may be awarded shall be limited to a maximum of $250,000. O.C.G.A. §51-

12-5.1(g).

3.

Emotional Distress. Where a claim is based on ordinary negligence, the general rule is that damages for emotional or mental distress can only be recovered in the event of a physical injury. Russaw v. Martin ,

221 Ga. App. 683, 685, 472 S.E.2d 508, 510 (1996). However, a plaintiff may recover for emotional distress if a tort causes aggravation of a preexisting mental illness. Underwood v. Atlanta & West Point

Railroad Co.

, 105 Ga. App. 340, 124 S.E.2d 758 (1962). A mental injury is considered a physical injury. Nationwide Mutual Fire Ins.

Co. v. Lam , 248 Ga. App. 134, 546 S.E.2d 283 (2001). A plaintiff may also recover for the shock and mental suffering that accompany a physical injury. Pullman Co. v. Strang , 35 Ga. App. 59, 132 S.E. 399

(1926); Marcelli v. Teasley , 72 Ga. App. 421, 33 S.E.2d 836 (1945).

In addition, a plaintiff may recover for ―intentional infliction of emotional distress‖ where the defendant engaged in intentional, wanton or reckless conduct that resulted in severe emotional distress.

Link and Hertz, Georgia Law of Damages, § 4:3 (2009).

Georgia rejects the ―zone of danger‖ rule, which allows recovery for emotional distress by one who only witnesses an injury to another person. Burch v. Uokuni International, Inc.

, 192 Ga. App. 861, 386 S.E.2d 889

(1989).

79


Suggested Pattern Jury Instructions, Vol. I: Civil Cases, 5 th

ed. (2007),

Charge 66.001.

―Damages are given as pay or compensation for injury done. When one party is required to pay damages to another, the law seeks to ensure that the damages awarded are fair to both parties. If you believe from a preponderance of the evidence that the Plaintiff is entitled to recover, you should award to the Plaintiff such sums as you believe are reasonable and just in this case.‖

Suggested Pattern Jury Instruction, Vol. 1: Civil Cases, 5 th

ed. (2007),

Charge 66.015.

―When a person is injured by the negligence of another, he must mitigate his damages as far as is practicable by the use of ordinary care and diligence. If you believe that Plaintiff has suffered damages as alleged, under the law, the Plaintiff is bound to reduce those damages, as far as is practicable, by the use of ordinary care. If you believe that by the use of such care, the Plaintiff could have reduced the damages, you would determine to what extent and reduce such damages to that extent.‖


ed. (2007),

Charge 66.040.

"In all cases, necessary expenses resulting from the injury are a legitimate item of damages. As to medical expenses, such as hospital, doctor, and medicine bills, the amount of the damage would be the reasonable value of such expense as was reasonably necessary."

Suggested Pattern Jury Instruction, Vol. 1: Civil Cases, 5th ed. (2007).

"Pain and suffering is a legal item of damages. The measure is the enlightened conscience of fair and impartial jurors. Questions of whether, how much, and how long the plaintiff has suffered or will suffer are for you to decide."


Any action for medical expenses incurred during a child's minority belongs exclusively to the parents. Adams, Ga. Law of Torts § 30:1 (2011)

(citing to O.C.G.A. § 19-7-1; Central R. Co. v. Brinson , 64 475 (1880); Frazier v.

Georgia R.R. & Banking Co ., 101 70(3), 28 S.E. 684 (1897); Coleman v. Dublin

Coca-Cola Bottling Co.

, 47 Ga. App. 369, 170 S.E. 549 (1933); Krasner v.

O'Dell , 89 Ga. App. 718(2), 80 S.E.2d 852 (1954); Rose v. Hamilton Medical

Center, Inc.

, 184 Ga. App. 182, 361 S.E.2d 1 (1987)). The tolling provision for

80

minors under O.C.G.A. §9-3-90 does not apply, and thus, the claim is subject to the two-year statute of limitations for personal injury actions. Id . at 184, 361

S.E.2d at 2. A parent can properly maintain an action to recover the medical expenses incurred during the child‘s minority even after the child turns eighteen so long as the parent brings the action within the two-year statute of limitations.

The child has no right to bring an action for his medical expenses incurred or to be incurred while he is a minor; however, he may maintain an action in his own name for medical expenses incurred after reaching the age of majority.


I. Wrongful Death

The Georgia Wrongful Death Act is codified in O.C.G.A. §51-4-1 et seq . and entitles certain individuals to recover for the wrongful death of a minor. See

O.C.G.A. §§51-4-1; 51-4-4; and 19-7-1 In every case involving the homicide of a child, minor or sui juris, some party shall be entitled to maintain an action for the full value of the life of the child.

See O.C.G.A. §19-7-1. The primary rationale for Georgia‘s ―full value of the life‖ standard is to impose a civil penalty to deter homicides. Roescher v. Lehigh Acres Development, Inc.

, 125 Ga. App. 565, 408

S.E.2d 818 (1991).

A. The Right to Bring a Wrongful Death Claim

The surviving parents, including adoptive parents, have the right to bring a wrongful death claim for the death of a child in the event that the deceased child does not leave a spouse or a child. O.C.G.A. §§ 19-7-1(c)(2), 19-8-19(a)(2), 51-

4-4. If the parents are not divorced, the right of action is shared by the parents jointly. O.C.G.A. § 19-7-1(c)(2)(A). ―Where both parents are living but are divorced, separated, or living apart, the right will be in both parents.‖ Kimpflen,

14 Ga. Jur. Personal Injury and Torts, § 25:22 (2011). If either parent is deceased, the right shall be in the surviving parent. O.C.G.A. § 19-7-1(c)(2)(B). In the event that the parents are not married or are living separately and one parent either cannot be located or refuses to proceed, then the other parent has the right to contract for representation on behalf of both parents. O.C.G.A. § 19-7-1(c)(2)(C).

Any recovery is shared equally by both parents in such a situation. See id

. ―If, after two years from the date of any recovery, the share of an absent parent has not been paid to the absent parent, the other parent can petition the court for the funds. See id

. A parent‘s right to bring a wrongful death action is not terminated by an award of temporary custody to state children‘s services. DeLoach v. Floyd ,

160 Ga. App. 728, 288 S.E.2d 65 (1981).

If the deceased child does not have any parents, adoptive parents, spouse, or child at the time of death, the administrator or executor of the deceased child may bring a wrongful death claim for the benefit of the next of kin. O.C.G.A. § 51-4-5. The fact that the child was born out of wedlock does not bar recovery. O.C.G.A. § 19-7-1(5).

81

B. Damages Recoverable in a Wrongful Death Action: Full Value of the Life of the Decedent.

O.C.G.A. §51-4-1(1) states that the ―‗[f]ull value of the life of the decedent, as shown by the evidence‘ means the full value of the life of the decedent without deduction for necessary or other personal expenses of the deceased had the deceased lived.‖ The full value of the life of the decedent consists of two elements – 1) the economic value of the deceased‘s normal life expectancy as determined by his expected lifetime earnings, and 2) an ―intangible element incapable of exact proof‖ such as a person‘s society, advice, example and counsel. Dept. of Human Resources v. Johnson , 264 Ga. App. 730, 738, 592

S.E.2d 124, 131 (2003) (internal citation omitted); TGM Ashley Lakes, Inc. v.

Jennings , 264 Ga. App. 456, 468-69, 590 S.E.2d 807, 819 (2003). Dependency and economic loss to the beneficiary are not part of Georgia‘s wrongful death elements because damages under Georgia‘s wrongful death statute are measured from the decedent‘s point of view.

Brock v. Wedincamp , 253 Ga. App. 275, 280,

558 S.E.2d 836, 841 (2002).

The value of a child‘s life ―must be established by the enlightened conscience of an impartial jury as applied to the evidence in the case, including testimony as to such child‘s age, life expectancy, precocity, health, mental and physical development, family circumstances, and from the experience and knowledge of human affairs on the part of the jury.‖

Johnson , 264 Ga. App. at 738, 592 S.E.2d at 131.

1. Loss of Services . Loss of services may be awarded in a wrongful death action as part of the full value of the decedent‘s life. South

Fulton Medical Center, Inc., v. Poe , 224 Ga. App. 107, 112, 480

S.E.2d 40, 45 (1996); O.C.G.A. §19-7-1(a) (providing that until the age of majority, the child shall be under the control of the parents,

―who are entitled to his services and the proceeds of his labor.‖).

2. Loss of Earnings .

Minors often have limited or zero earnings history but Georgia courts allow plaintiffs to present earnings evidence based upon averages. Georgia allows the introduction of facts which may be reliable indicators of what a deceased would have earned and those facts includes such things as a deceased‘s age, sex, education, and the deceased‘s parents‘ education and profession.

Woods v. Andersen , 145

Ga. App. 492, 243 S.E.2d 748 (1978). Though this distinction does not come into play that often in the case of deceased minors, the proper earnings figures to consider are adjusted gross income figures as opposed to gross earnings. Miller v. Tuten , 137 Ga. App. 188, 223

S.E.2d 237 (1976).

C. Damages Not Recoverable in a Wrongful Death Action:

1.

Mental Anguish or Emotional Distress . Recovery for wrongful death does not include recovery for mental anguish or emotional

82

distress. OB-GYN Assoc. of Albany v. Littlejohn , 259 Ga. 663, 664,

386 S.E.2d 146, 147 (1989), overruled in part on other grounds, Lee v.

State Farm Mut. Ins. Co ., 533 S.E.2d 82, 84, 272 Ga. 583, 585 (2000).

The emotional upset of the plaintiff is no part of the measure of damages in a wrongful death action. Hudson v. Cole , 102 Ga. App.

300, 304, 115 S.E.2d 825, 829 (1960). It is common practice for defense counsel to move in limine or otherwise object to exclude evidence of the effect a minor‘s death has had on plaintiff or others, including family members of the decedent.

2.

Loss of Consortium. Georgia does not recognize a cause of action for loss of consortium arising from the death of a child. In the absence of a statute to the contrary, a cause of action for loss of consortium is limited to and applicable only to two parties to a marital union, the spouses. W.J. Bremer Co., Inc. v. Graham , 169 Ga. App. 115, 116,

312 S.E.2d 806, 808 (1983).

3.

Punitive Damages . Punitive damages are not available in a wrongful death claim. Because wrongful death actions are by their nature punitive, Georgia courts have determined that to allow punitive damages would authorize a recovery in excess of the actual loss to the survivor, namely, the full value of the decedent‘s life.

Ford Motor Co. v. Stubblefield , 171 Ga. App. 331, 340, 319 S.E.2d 470, 480 (1984).

II. Survival Actions on Behalf of Minors

O.C.G.A. §9-2-41 provides that actions for tort and certain other causes of action shall not ―abate by the death of either party‖ and that the cause of action,

―in case of the death of the plaintiff and in the event there is no right of survivorship in any other person, shall survive to the personal representative of the deceased plaintiff.‖

A. Damages Recoverable in Survival Actions

1.

Funeral, Medical and Other Necessary Expenses. O.C.G.A. §51-4-

5(b) provides for the survival of the deceased‘s own cause of action for the medical and other necessary expenses incurred in caring for the deceased prior to his or her death. Gay v. Piggly Wiggly Southern,

Inc ., 183 Ga. App. 175, 180, 358 S.E.2d 468, 473 (1987). The cause of action shall be brought by the personal representative on behalf of the estate. O.C.G.A. §51-4-5(b).

2.


A survival action for pain and suffering under

O.C.G.A. §§51-4-5(b) and 9-2-41 is separate and distinct from a wrongful death action under O.C.G.A. §§51-4-4 and 19-7-1 and shall be brought by the personal representative of the estate. Blackstone v.

83

Blackstone , 282 Ga.App. 515, 518, 639 S.E.2d 369, 372, n. 5 (2006).

In order for pre-death pain and suffering damages to be awarded in a wrongful death action, the jury must have some evidence that the deceased at some point was conscious of his or her imminent death.

The jury may infer such consciousness from evidence immediately prior to the impact or following his or her injury. Dept. of Transp. v.

Dupree , 256 Ga. App. 668, 680, 570 S.E.2d 1, 11 (2002).

3.


Punitive damages may be awarded in connection with an administrator‘s claims for a decedent‘s pre-death injuries and pain and suffering. Jones v. Davis , 183 Ga. App. 401, 403, 359 S.E.2d

187, 290 (1987), overruled on other grounds , Brown v. State , 274 Ga.

31, 549 S.E.2d 107 (2001).



ed. (2007),

Charge 66.301

"You may determine the life expectancy of a person when the person's age is shown without any other direct evidence on the subject. In deciding this matter, you are also entitled to consider the evidence pertaining to the person's health, habits, surroundings, and method of living."


ed. (2007),

Charge 66.302

"There is another way in which you may determine the life expectancy of the plaintiff. There has been introduced into evidence a copy of the

__________ mortality tables. If you desire to determine from this table the life expectancy of a person, look up that person's age in one column, and across from the age column, you will find the life expectancy of a person of that age. Life expectancy shown on any such table is merely a guide that you may follow while considering the evidence as a whole."

84

HAWAII

Katherine J. Sullivan, Esquire

D EASEY , M AHONEY , V ALENTINI & N ORTH , L TD .

Philadelphia, Pennsylvania

215-587-9400


I.

Economic Damages

1.

Property Damages. Property damages are recoverable.

2.

Medical and Other Related Expenses . Medical and related expenses are recoverable.

3.

Loss of Wages or Wage-Earning Capacity . Loss of wages or earning capacity are recoverable. Hudson v. Uwekoolani , 65 Haw. 468.

II. Noneconomic Damages

1.

Hedonic Damages . Loss of enjoyment of life damages are recoverable.

HRS § 663-8.5(a).

2.

Punitive Damages . Under Hawaii law, punitive damages are recoverable where the defendant has acted with such an entire want of care as would raise a presumption of conscious indifference to consequences. In determining whether punitive damages are appropriate, the court focuses primarily on the defendant's state of mind and, to a lesser degree, the nature of his conduct. Punitive damages are not awarded for mere inadvertence, mistake, or errors of judgment. Further, a plaintiff must prove entitlement to punitive damages by clear and convincing evidence.

Ass’n of Apt. Owners v.

Venture 15, Inc ., 115 Haw. 232, (HI 2007).

3.

Emotional Distress . Claims for emotional distress are recoverable.

The elements of an action for intentional infliction of emotional distress are 1) that the conduct allegedly causing the harm was intentional or reckless, 2) that the conduct was outrageous, and 3) that the conduct caused 4) extreme emotional distress to another. Plaintiff may recover damages for negligent infliction of emotional distress only if she proves that a reasonably prudent person in the same situation and possessing the same knowledge as the defendant would have foreseen that someone in Plaintiff's position would have suffered serious mental distress because of their actions. "Serious mental distress" is found where a reasonable person, normally constituted,

85

would be unable to adequately cope with the mental stress caused by the circumstances of the case. Nelson v. Univ. of Hawaii, 15, 97 Haw.

376, (HI 2001).

II.

Jury Instructions. 8.9 – Elements of Damages a.

Medical Expenses for Child

If you find for plaintiff(s) on the issue of liability, plaintiff(s) is/are entitled to damages in such amount as in your judgment will fairly and adequately compensate him/her/them for the injuries which he/she/they suffered. In deciding the amount of such damages, you should consider:

The reasonable value of the medical services provided by physicians, hospitals and other health care providers, including examinations, attention and care, drugs, supplies, and ambulance services, reasonably required and actually given in the treatment of plaintiff(s) and the reasonable value of all such medical services reasonably probable to be required in the treatment of plaintiff(s) in the future; b.

Lost Wages


The lost income sustained by plaintiff(s) in the past and the lost income he/she/they is/are reasonably probable to sustain in the future. c.

Pain and Suffering


The pain, emotional suffering, and disability which he/she/they has/have suffered and is/are reasonably probable to suffer in the future because of the injuries, if any;

86

d.

Permanency


The extent and nature of the injuries he/she/they received, and also the extent to which, if at all, the injuries he/she/they received are permanent; e.

Disfigurement


The deformity, scars and/or disfigurement he/she/they received, and also the extent to which, if at all, the deformity, scars and/or disfigurement are permanent; f.

Punitive Damages 8.92

If you award plaintiff(s) any damages, then you may consider whether you should also award punitive damages. The purposes of punitive damages are to punish the wrongdoer and to serve as an example or warning to the wrongdoer and others not to engage in such conduct.

You may award punitive damages against a particular defendant only if plaintiff(s) have proved by clear and convincing evidence that the particular defendant acted intentionally, willfully, wantonly, oppressively or with gross negligence. Punitive damages may not be awarded for mere inadvertence, mistake or errors of judgment.

The proper measure of punitive damages is (1) the degree of intentional, willful, wanton, oppressive, malicious or grossly negligent conduct that formed the basis for your prior award of damages against that defendant and (2) the amount of money required to punish that defendant considering his/her/its financial condition. In determining the degree of a particular defendant's conduct, you must analyze that defendant's state of mind at the time he/she/it committed the conduct which formed the basis for your prior award of damages against that defendant.

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Any punitive damages you award must be reasonable.


The right to sue for medical expenses belongs to the parent. Upon the age of majority, the child has the right to sue for medical expenses for which the child becomes responsible. Chapman v. Brown , 198 F. Supp. 78 (U.S. H.I., 1961).


I.


1.

Property Damages . Property damages are recoverable.

2.

Funeral, Medical and Other Related Expenses . Funeral, medical and other expenses are recoverable.

3.

Loss of Wages or Wage-Earning Capacity . Loss of Wages and

Wage-earning capacity are recoverable. Wages are calculated by consideration of evidence of the decedent‘s probable income during the remainder of his projected life expectancy if the accident had not occurred, less cost of maintenance. HRS § 663-8.

II.

Non-economic Damages:

1.

Loss of Society and Companionship . Loss for society and companionship of a minor child, though difficult to value, are recoverable.

2.

Pain and Suffering . Pain and suffering of the minor child calculated from the time the incident occurred until the minor‘s death are recoverable by the Minor‘s estate.

3.

Punitive Damages .

Punitive damages are recoverable in a wrongful death action.

4.

Loss of Enjoyment of Life . Loss of enjoyment of life damages are recoverable. HRS § 663-8.5(a).

5.

Emotional Distress . Emotional distress experienced by the minor prior to the minor‘s death is also a basis for recovery.

88

III.

Model Jury Instructions

Hawaii has not adopted standard jury instruction for wrongful death and survival action claims that are separate and independent from its general damages instruction.

89

IDAHO

John J. Burke

Robert A. Berry

Farley Oberrecht West Harwood & Burke, P.A.

Boise, Idaho

(208) 395-8500


Generally: The parents of a minor child may maintain an action for the injury of the minor child. I.C. § 5-310; IRCP 17(c). In every such action damages may be given as under all the circumstances of the case that may be just.

Hayward v. Yost , 72 Idaho 415, 425, 242 P.2d 971, 977 (1952); Jacobsen v.

Schroder , 117 Idaho 442, 444, 788 P.2d 843, 845 (1990). The claims of children arising from injuries to themselves are permitted for pecuniary as well as for nonpecuniary damages. Id.


1. Property Damage: Property damage is recoverable. Koch v. Elkins ,

71 Idaho 50, 225 P.2d 457 (1950).

2. Medical and Other Related Expenses: Medical and other related expenses are recoverable.

Lasselle v. Special Prods. Co.

, 106 Idaho

170, 173, 677 P.2d 483, 486 (1984).

3. Loss of Wages or Wage-Earning Capacity: Damages include contributions which the parents might reasonably have expected to receive from the earnings of such minor child until his majority. Hayward v. Yost , 72 Idaho 415, 425, 242 P.2d 971, 977

(1952); Jacobsen v. Schroder , 117 Idaho 442, 444, 788 P.2d 843, 845

(1990); see also Baldwin v. Ewing , 69 Idaho 176, 179, 204 P.2d 430,

431 (1949)(―Where an injury to a minor child results in loss of the ability of that child to work, the parent entitled to the child's services during minority is deprived of such services and, therefore, is entitled to damages to compensate him for such loss.‖)


1. Generally: Damages include contributions which the parents might reasonably have expected to receive from the earnings of such, for which there is no precise measure, as well as the loss of protection, comfort, society and companionship. Hayward v. Yost , 72 Idaho 415,

425, 242 P.2d 971, 977 (1952); Jacobsen v. Schroder , 117 Idaho 442,

444, 788 P.2d 843, 845 (1990);

90

2. Punitive Damages: Punitive damages are not favored and should be awarded in only the most unusual and compelling circumstances, and are to be awarded cautiously and within narrow limits. Payne v.

Wallace , 136 Idaho 303, 308, 32 P.3d 695, 700 (Ct. App. 2001) citing

Walston v. Monumental Life Ins. Co.

, 129 Idaho 211, 221, 923 P.2d

456, 466 (1996) quoting Manning v. Twin Falls Clinic & Hosp.

, 122

Idaho 47, 52, 830 P.2d 1185, 1190 (1992) (emphasis added). Punitive damages must be requested through the filing of a motion to amend to seek such a claim; punitive damages may not be requested in the original complaint. I.C. § 6-1604(2). The court shall allow a motion to amend the pleadings, if after weight the evidence presented, the court concludes that the moving party has established at such hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages. At trial, the party seeking recovery of punitive damages must prove by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted. I.C. § 6-

1604(2).

3. Emotional Distress . Emotional distress is recoverable as a negligent or intentional tort.

Intentional infliction of emotional distress requires the following elements: (1) the defendant‘s conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the wrongful conduct and the plaintiff‘s emotional distress, and (4) the emotional distress was severe. Spence v. Howell ,

126 Idaho 763, 774, 890 P.2d 714, 725 (1995); Payne v. Wallace , 136

Idaho 303, 306, 32 P.3d 695, 698 (Ct. App. 2001); Davis v. Gage , 106

Idaho 735, 741, 682 P.2d 1282, 1288 (Ct. App. 1984). The conduct must be not merely unjustifiable; it must rise to the level of ―atrocious‖ and ―beyond all possible bounds of decency,‖ such that it would cause an average member of the community to believe that it was outrageous. Edmondson v. Shearer Lumber Products , 139 Idaho 172,

180, 75 P.3d 733, 741 (2003).

Negligent infliction of emotional distress is ―simply a category of the tort of negligence, requiring the elements of a common law negligence action.‖ See Nation v. State, Dep’t of Correction

, 144 Idaho 177, 189-

91, 158 P.3d 953, 965-66 (2007); Black Canyon Racquetball Club,

Inc. v. Idaho First Nat’l Bank , 119 Idaho 171, 175-77, 804 P.2d 900,

904-06 (1991); Brown v. Matthews Mortuary, Inc.

, 118 Idaho 830,

837, 801 P.2d 37, 44 (1990). It requires the following elements to be met: (1) a duty recognized by law requiring the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the conduct and the plaintiff‘s injury; and (4)

91

actual loss or damage. Brooks v. Logan , 127 Idaho 484, 489, 903 P.2d

73, 78 (1995); Black Canyon Racquetball Club, Inc.

, 119 Idaho at 175-

76, 804 P.2d at 904-05; Nation , 144 Idaho at 189, 158 P.3d at 965. In addition to these elements, there must be some physical manifestation of the plaintiff‘s emotional injury. Black Canyon Racquetball Club,

Inc.

, 119 Idaho at 177, 804 P.2d at 906; Czaplicki v. Gooding Joint

School Dist. No. 231 , 116 Idaho 326, 332, 775 P.2d 640, 646 (1989).


Damages Instruction

If the jury decides the plaintiff[s] [is/are] entitled to recover from the defendant[s], the jury must determine the amount of money that will reasonably and fairly compensate the plaintiff[s] for any damages proved to be proximately caused by the defendant[‘s/s‘] negligence.

The elements of damage the jury may consider are:

A. Non-economic damages

1. The nature of the injuries;

2. The physical and mental pain and suffering, past and future;

3. The impairment of abilities to perform usual activities;

4. The disfigurement caused by the injuries;

5. The aggravation caused to any preexisting condition.

B. Economic damages

1. The reasonable value of necessary medical care received and expenses incurred as a result of the injury [and the present cash value of medical care and expenses reasonably certain and necessary to be required in the future];

2. The reasonable value of the past earnings lost as a result of the injury;

92

3. The present cash value of the future earning capacity lost because of the injury, taking into consideration the earning power, age, health, life expectancy, mental and physical abilities, habits, and disposition of the plaintiff[s], and any other circumstances shown by the evidence.

4. The reasonable value of necessary services provided by another in doing things for the plaintiff[s], which, except for the injury, the plaintiff[s] would ordinarily have performed [and the present cash value of such services reasonably certain to be required in the future];

5. [Any other specific item based upon the evidence.]

Whether the plaintiff[s] [has/have] proved any of these elements is for the jury to decide.


The general rule is that the parents have the primary right of action for expenses incurred by the child in connection with the injury.

Lasselle v. Special

Prods. Co.

, 106 Idaho 170, 173, 677 P.2d 483, 486 (1984). However, parents may waive or relinquish their rights in favor of the child so as to entitle the child to recover the full amount of damages. Id. This waiver may be formal or implied from the party's conduct such as failing to object to the bringing of an action by the child in which the child claims damages properly belonging to the parent, or when he testifies in the child's action in regard to such damages. If a parent does not waive or relinquish the right to recover the full amount of damages, this means that the parent would have sued in their own individual capacity. As such, it does not appear that the plaintiff‘s right to sue for medical expenses would terminate in this situation.


Idaho Code § 5-311 authorizes wrongful death actions for heirs or personal representatives when the wrongful act or neglect of another caused the decedent's death. This statute does not allow a decedent's claims to survive, but creates a new cause of action in favor of heirs or personal representatives. Craig v. Gellings , 148 Idaho 192, 194, 219 P.3d 1208, 1210 (Ct. App. 2009).


93

1. Property Damages, Future Income . The calculation of damage to heirs for the wrongful death of a parent should not consider financial or other circumstances that arise subsequent to the parent's death, such as the remarriage of a surviving parent. Westfall v. Caterpillar, Inc.

,

120 Idaho 918, 821 P.2d 973 (1991). Idaho courts follow a loss of support theory of damages. Pfau v. Comair Holdings, Inc.

, 135 Idaho

152, 154-55, 315 P.3d 1160, 1162-63(2000). This theory measures damages as the loss to the survivors of what the decedent would have contributed to them in the form of support if he or she had lived. This theory defines ―just‖ damages to include recovery for loss of companionship, protection, bodily care, intellectual culture, and moral training ―providing it sufficiently appears that pecuniary damages resulted from such loss.‖ Id.

The recoverable damages do not include an heir's loss of anticipated inheritance or accumulated earnings from the decedent; recoverable amounts include only what the heir reasonably could expect to receive during the decedent's life. Pfau v.

Comair Holdings, Inc.

, 135 Idaho 152, 15 P.3d 1160 (2000).

2. Funeral, Medical and Other Related Expenses . Funeral, medical, or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission are recoverable. Idaho

Code § 5-311; Horner v. Sani-Top, Inc.

, 143 Idaho 230, 237, 141 P.3d

1099, 1106 (2006).


1. Loss of Society and Companionship . Damages for wrongful death are not limited to pecuniary loss. Sawyer v. Claar , 115 Idaho 322, 766

P.2d 792 (Ct. App. 1988). The elements of damage proper for consideration under the statute include the loss of the society, companionship, comfort, protection, guidance, advice, and intellectual training which the deceased would have provided. Hepp v. Ader , 64

Idaho 240, 130 P.2d 859 (1942).

2. Pain and Suffering, Loss of enjoyment of Life and Emotional

Distress . Pain and suffering are personal to the decedent and are not damages suffered by the survivors, so an action for pain and suffering under Idaho Code § 5-311 does not survive death. Vulk v. Haley , 112

Idaho 855, 858, 736 P.2d 1309, 1312 (1987). The decedent‘s family, however, may seek an award of damages for their own emotional distress arising from the wrongful death of the decedent. Manning v.

Twin Falls Clinic & Hosp., Inc.

, 122 Idaho 47, 830 P.2d 1185 (1992).

3. Punitive Damages . See above discussion regarding punitive damages.

Punitive damages are potentially recoverable in a wrongful death

94

action under the statute. Gavica v. Hanson , 101 Idaho 58, 608 P.2d

861 (1980).


If the jury decides the plaintiff[s] [is/are] entitled to recover from the defendant[s], the jury must determine the amount of money that will reasonably and fairly compensate the plaintiff[s] for any damages proved to be proximately caused by defendant[‘s/s‘] negligence.

The elements of damage the jury may consider are:

1. The reasonable cost of the decedent‘s funeral.

2. The reasonable value of necessary medical care and expenses incurred prior to the decedent‘s death.

3. The reasonable value to the plaintiff[s] of the loss of the decedent‘s [services] [training] [comfort] [conjugal relationship] and

[society] and the present cash value of any such loss that is reasonably certain to occur in the future, taking into consideration the life expectancy of the plaintiff[s], the decedent‘s age and normal life expectancy, habits, disposition and any other circumstances shown by the evidence.

4.

The plaintiff[‘s/s‘] loss of financial support from the decedent, and the present cash value of financial support the decedent would have provided to the plaintiff[s] in the future, but for the decedent‘s death, taking into account the plaintiff[‘s/s‘] life expectancy, the decedent‘s age and normal life expectancy, the decedent‘s earning capacity, habits, disposition and any other circumstances shown by the evidence.

Death is inevitable. Although the law compensates for the untimeliness of a death caused by another, no damages are allowed for grief or sorrow.

95

ILLINOIS

John S. Monical

Christina Mermigas

Lawrence, Kamin, Saunders & Uhlenhop, LCC

Chicago, Illinois

(312) 372-1947




The reasonable expenses of necessary medical care, treatment and services received by the child, as well as the present cash value of the reasonable expenses of necessary medical care, treatment and services reasonably certain to be received in the future are recoverable. I.P.I. Civil No. 32.05.

2. Child’s Lost Services and Earnings . A parent may recover the reasonable value of the services of an unemancipated minor. I.P.I.

Civil No. 32.06. The parent generally may recover the child‘s lost earnings during the child‘s minority, but the child generally may recover the current lost value of future earnings beyond the age of majority 18. See I.P.I. Civil No. 32.06 (comments); Wolczek v. Public

Serv. Co. of N. Ill., 174 N.E. 577, 583 (Ill. 1930).

3. Caretaking Expenses and Parent Lost Wages.

A parent may not recover the parent‘s lost wages while caring for an injured minor, but a parent may recover the reasonable value of the care or attendance rendered by the parent or the expense of necessary paid care or attendance which has been required as a result of the injury to a minor and the cash value of such help reasonably certain to be required in the future. Worley v. Barger, 347 Ill.App.3d 492, 497 (5th Dist. 2004);

I.P.I. Civil No. 30.09.


1. Disfigurement.

Disfigurement is recoverable as an element of damages. I.P.I. Civil No. 30.04; Holston v. Sisters of the Third Order of St. Francis, 165 Ill.2d 150, 175 (1995). Illinois courts have defined disfigurement as ―that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner.‖

Antol v. Chavez-

Pereda, 672 N.E.2d 320, 327 (Ill. App. Ct. 1st Dist. 1996), quoting

Rapp v. Kennedy, 242 N.E.2d 11, 13 (Ill. App. Ct. 4th Dist. 1968).

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2. Disability or Loss of a Normal Life.

I.P.I. Civil No. 30.04.01 refers to ―disability‖ and ―loss of normal life‖ as alternative measures of damage. Case law has defined ―disability‖ as an absence of competent physical, intellectual, or moral powers caused by physical defect or infirmity or the ―inability to pursue an occupation or perform services for wages because of physical or mental impairment.‖ Antol v. Chavez-

Pereda, 672 N.E.2d 320, 327 (Ill App. Ct. 1st Dist. 1996); Mulack v.

Hickory Hills Police Pension Board, 625 N.E.2d 259, 263 (Ill. App.

Ct. 1st Dist. 1993). I.P.I. Civil No. 30.04.02 defines ―loss of a normal life‖ to include the temporary or permanent diminished ability to enjoy life, including a person‘s inability to pursue the pleasurable aspects of life. Note: The nature, extent, and duration of an injury cannot be compensated for as a separate element of damages, but the jury may generally consider the nature, extent, and duration of the injury in considering other elements of damage. Powers v. Illinois Central Gulf

R.R., 438 N.E.2d 152 (Ill. 1982).

3. Shortened Life Expectancy.

Shortened life expectancy is recoverable as an element of damages. I.P.I. Civil No. 30.04.05.

4. Increased Risk of Future Harm . Under certain circumstances,

Illinois may allow recovery for future damages that are not reasonably certain to occur where the Plaintiff proves an increased risk that the injury will occur. In such cases, the jury is instructed to multiply the total amount that the plaintiff would be entitled to recover if the future harm were certain to occur by the probability that it is actually likely to occur. I.P.I. Civil No. 30.04.03 and 30.04.04.

5. Physical and Mental Pain and Suffering. Pain and suffering has been defined as the sensation ―proceeding from hurt or disorder of the body of which the mind is conscious and is therefore felt.‖

City of

Chicago v.

Gilfoil, 99 Ill.App. 88, 89 (Ill. App. Ct. 1st Dist. 1901); see also Carter v. Azaran, 774 N.E.2d 400 (Ill. App. Ct. 1st Dist. 2002).

Damages for pain and suffering are proper when there is evidence of a physical injury. Rheinheimer v. Village of Crestwood, 684 N.E.2d 777

(Ill. App. Ct. 1st Dist. 1997). A minor plaintiff can recover for both past and future pain and suffering, as well as emotional distress experienced and reasonably certain to be experienced in the future.

I.P.I. Civil Nos. 30.05, 30.05.01. Note: In addition to the mental pain and suffering of an injured minor, caregivers may, under some circumstances, be able to recover in a direct claim for negligent infliction of emotional distress to them if they were in the ―zone of danger‖ when a child was injured. See Clark v. Children’s Mem.

Hosp., 955 N.E.2d 1065 (Ill. 2011); Rickey v. Chicago Transit Auth.,

457 N.E.2d 1 (Ill. 1983).

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6. Aggravation of Pre-existing Injury. The minor child may not recover for aggravation of a pre-existing condition as a separate element of damages but the jury may take aggravation of a preexisting condition into account when awarding other, recognized damage claims. Luye v. Schopper, 809 N.E.2d 156 (Ill. App. Ct. 1st

Dist. 2004). The concept of ―aggravation of any pre-existing ailment or condition‖ is reflected in the instruction on measure of damages.

I.P.I. Civil No. 30.21.

7. Punitive damages . Recoverable only in actions sounding in tort and only when certain aggravated factors are present. As a general rule, punitive damages may be awarded only when torts are committed with fraud, actual malice, or deliberate violence or oppression or when the defendant acts willfully or with such gross negligence as to indicate a wanton disregard of the rights of others. See I.P.I. Civil No. 35.01.

III. Jury Instructions:

I.P.I. Civil No. 30.01: Measure of Damages - Personal and Property

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the [negligence] [wrongful conduct][of the defendant],

[taking into consideration (the nature, extent and duration of the injury)

(and) (the aggravation of any pre-existing ailment or condition)].

[ Here insert the elements of damages which have a basis in the evidence.

]

Whether any of these elements of damages has been proved by the evidence is for you to determine.

I.P.I. Civil No. 30.04: Measure of Damages – Disfigurement

The disfigurement resulting from the injury.

I.P.I. Civil No. 30.04.01: Measure of Damages - Disability/Loss of a

Normal Life

[The disability experienced (and reasonably certain to be experienced in the future).] [Loss of a normal life experienced (and reasonably certain to be experienced in the future).]

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I.P.I. Civil No. 30.04.02: Loss of a Normal Life – Definition

When I use the expression ―loss of a normal life‖, I mean the temporary or permanent diminished ability to enjoy life. This includes a person‘s inability to pursue the pleasurable aspects of life.

I.P.I. Civil No. 30.04.03: Increased Risk of Harm - Measure of

Damages

The increased risk of future [specify condition] [harm] resulting from the

[injury] [injuries] [condition] [conditions].

I.P.I. Civil No. 30.04.04: Increased Risk of Harm – Calculation

To compute damages for increased risk of future [specify condition]

[harm] only, you must multiply the total compensation to which the plaintiff would be entitled if [specify condition] were certain to occur by the proven probability that [specify condition] will in fact occur. [You do not reduce future damages by this formula if those damages are more

[likely than not] [probably true than not true] to occur.]

I.P.I. Civil No. 30.04.05: Measure of Damages - Shortened Life

Expectancy

Shorted life expectancy.

I.P.I. Civil No. 30.05: Measure of Damages - Pain and Suffering - Past and Future

The pain and suffering experienced and reasonably certain to be experienced in the future] as a result of the injuries.

I.P.I. Civil No. 30.05.01: Emotional Distress

The emotional distress experienced and reasonably certain to be experienced in the future].

I.P.I. Civil No. 30.06: Measure of Damages - Medical Expense - Past and Future - Adult Plaintiff, Emancipated Minor, or Minor Whose

Parent Has Assigned Claim to Minor

The reasonable expense of necessary medical care, treatment, and services received [and the present cash value of the reasonable expenses of medical care, treatment, and services reasonably certain to be received in the future].

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I.P.I. Civil No. 30.07: Measure of Damages - Loss of Earnings or

Profits - Past and Future -Adult Plaintiff, Emancipated Minor, or

Minor Whose Parent Has Assigned Claim to Minor

The value of [time/earnings/profits/salaries/benefits] lost [and the] present cash value of the [time/earnings/profits/salaries/benefits] reasonably certain to be lost in the future.

I.P.I. Civil No. 30.08: Measure of Damages - Loss of Future Earnings -

Future Medical Expenses--Minor Plaintiff

The present cash value of [time/earnings/profits/salaries/benefits/medical care/treatment/ services]; reasonably certain to be lost [or incurred] in the future after the Plaintiff has reached the age of eighteen.

I.P.I. Civil No. 30.09: Measure of Damages - Caretaking Expense -

Past and Future - Adult Plaintiff, Emancipated Minor, or Minor

Whose Parent Has Assigned Claim to Minor

The reasonable expense of necessary help and the present cash value of such expense reasonably certain to be required in the future].

I.P.I. Civil No. 30.21: Measure of Damages - Personal Injury -

Aggravation of Pre-Existing Condition - No Limitations

If you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiff‘s right to damages resulting from this occurrence because any injury resulted from [an aggravation of a preexisting condition] [or] [a pre-existing condition which rendered the plaintiff more susceptible to injury].

I.P.I. Civil No. 30.23: Injury from Subsequent Treatment

If [a defendant] [defendants] negligently cause[s] [injury to] [a condition of] the plaintiff, then the defendant[s] [is] [are] liable not only for the plaintiff‘s damages resulting from that [injury] [or] [condition], but [is]

[are] also liable for any damages sustained by the plaintiff arising from the efforts of health care providers to treat the [injury] [or] [condition] caused by the defendant[s] [even if (that) (those) health care provider(s) (was)

(were) negligent.]

I.P.I. Civil No. 35.01: Punitive/Exemplary Damages

In addition to compensatory damages, the law permits you under certain circumstances to award punitive damages. If you find that (Defendant's name)'s conduct was [fraudulent] [intentional] [willful and wanton] and

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proximately caused [injury] [damage] to the plaintiff, and if you believe that justice and the public good require it, you may award an amount of money which will punish (Defendant's name) and discourage [it/him/her] and others from similar conduct. In arriving at your decision as to the amount of punitive damages, you should consider the following three questions. The first question is the most important to determine the amount of punitive damages:

1. How reprehensible was (Defendant's name)'s conduct? On this subject, you should consider the following: a) The facts and circumstances of defendant's conduct; b) The [financial] vulnerability of the plaintiff; c) The duration of the misconduct; d) The frequency of defendant's misconduct; e) Whether the harm was physical as opposed to economic; f) Whether defendant tried to conceal the misconduct;

[g) other]

2. What actual and potential harm did defendant's conduct cause to the plaintiff in this case?

3. What amount of money is necessary to punish defendant and discourage defendant and others from future wrongful conduct [in light of defendant's financial condition]?

[In assessing the amount of punitive damages, you may not consider defendant's similar conduct in jurisdictions where such conduct was lawful when it was committed.] The amount of punitive damages must be reasonable [and in proportion to the actual and potential harm suffered by the plaintiff.]


Under the Illinois family expense provision of the Rights of Married

Persons Act, 750 ILCS 65/15, parents are liable for the expenses of the family, including medical, hospital and funeral expenses of children under the age of majority (18). Graul v. Adrian, 205 N.E.2d 444 (Ill. 1965). Accordingly, it is the parents, and not the child, that are the plaintiffs who hold the right to a cause of action for reimbursement for such expenses. Skaggs v. Junis , 169 N.E.2d 684 (Ill.

App. Ct. 2d Dist. 1960); Reimers v. Honda Motor Corp.

, 502 N.E2d 428 (Ill. App.

Ct. 1st 1986). Although a parent can assign the right to recover these expenses to the child, the child‘s claim for reimbursement still is subject to the same defenses that could have been raised against the parent. Reimers , supra The minor child

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continues to own the right to sue for any damages (including expected future damages) after the child reaches majority. I.P.I Civil No. 30.08.



1. Pecuniary Loss.

Damages under the Illinois Wrongful Death Act

(740 ILCS 180/1 et seq.) (the ―Act‖) are limited to the ―pecuniary loss‖ resulting from the death. 740 ILCS 180/1; I.P.I. Civil No. 31.01.

―Pecuniary loss may include loss of money, benefits, goods, services, and society.‖ I.P.I. Civil No. 31.01.


Although not provided for in the Wrongful Death

Act, medical expenses are recoverable as a direct action by the parent

(see above).

3. Loss of Earnings or Support.

Loss of support includes the decedent‘s past and future earnings.

Gauger v. Millis , 90 N.E.2d 790

(Ill. App. Ct. 2d Dist. 1950); There is no presumption of a loss of earnings of a child in a wrongful death case.


1. Loss of Society and Companionship . The loss of a child‘s society and companionship are fully recoverable as pecuniary losses by parents. Bullard v. Barnes , 468 N.W.2d 1128 (Ill. 1984). In determining the value of child-decedent‘s society and companionship, the jury should be allowed to consider the evidence of family history, the relationships among the family members, and any ongoing physical or mental condition of a family member. Chladek v. Albon ,

515 N.E.2d 191, 194 (Ill. App. Ct. 1st Dist. 1987). Illinois recognizes a presumption that lineal heirs and next of kin have sustained substantial pecuniary loss by the loss of society of a child and allows a jury to award damages without proof of actual loss. I.P.I Civil No.

31.01; Hall v. Gillins , 147 N.E.2d 352 (Ill. 1958). Parents bringing claims of minor‘s wrongful death are entitled to this presumption.

Bullard v. Barnes , 468 N.W.2d 1128 (Ill. 1984).

2. Grief, Sorrow, and Mental Suffering.

Pecuniary injuries specifically include damages for ―grief, sorrow, and mental suffering‖ by a next of kin and, accordingly these are recoverable in wrongful death actions.

740 ILCS 180/2. The parent may recover mental anguish, loss of enjoyment of life, and loss of consortium, including the loss of mutual benefits that the parents received from the child‘s continued existence, including love, affection, care, attention, companionship, comfort,

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guidance, and protection. Dobyns v. Chung , 926 N.E.2d 847, 859 (Ill.

App. Ct. 5th Dist. 2010). However, the jury cannot consider the pain and suffering of the decedent or the poverty or wealth of the next of kin when measuring damages. I.P.I. Civil No. 31.07.

3. Punitive Damages . Neither punitive damages nor prejudgment interest is allowable in wrongful-death actions. Gardner v. Geraghty ,

423 N.E.2d 1321 (Ill. App. Ct. 1st Dist. 1981). Punitive damages similarly are not recoverable under Illinois Survival Act. 755 ILCS

5/27-6; Ballweg v. Springfield, 499 N.E.2d 1373, 1377 (Ill. 1986);

Froud v. Celotex Corp., 456 N.E.2d 131, 133 (Ill. 1983).

III. Jury Instructions:

I.P.I Civil No. 31.01 Measure of Damages - Wrongful Death - Minor

Child Decedent - Lineal Next of Kin Surviving

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate the

[lineal next of kin, e.g. parent] of the decedent for the pecuniary loss proved by the evidence to have resulted to the [lineal next of kin] from the death of the decedent.

―Pecuniary loss‖ may include loss of money, benefits, goods, services, and society.

Where a decedent leaves [lineal next of kin], the law recognizes a presumption that the [lineal next of kin] has sustained some substantial pecuniary loss by reason of the loss of the child's society. The weight to be given this presumption is for you to decide from the evidence in this case.

In determining pecuniary loss, you may consider what the evidence shows concerning the following:

[ 1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily contributed in the past;]

[ 2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have contributed in the future;]

[ 3. His age;]

[ 4. His sex;]

[ 5. His health;]

[ 6. His physical and mental characteristics;]

[ 7. His habits of (industry,) (sobriety,) (and) (thrift);]

[ 8. His occupational abilities;]

[ 9. The grief, sorrow, and mental suffering of [next of kin];]

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[10. The relationship between [lineal next of kin] and the decedent.]

[The pecuniary loss must be reduced by the expenditures that you find the parent(s) would have been likely to incur for the child had the child lived.]

I.P.I Civil No. 31.02 Measures of Damages -Wrongful Death - Minor

Child Decedent -Collateral Next of Kin Surviving


[collateral next of kin, e.g., brother] of the decedent for the pecuniary loss proved by the evidence to have resulted to [collateral next of kin] from the death of the decedent. ―Pecuniary loss‖ may include loss of money, benefits, goods, services, and society.


[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily contributed in the past;]

[2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have contributed in the future;]

[3. His age;]

[4. His sex;]

[5. His health;]

[6. His physical and mental characteristics;]



[ 9. The grief, sorrow, and mental suffering of [collateral next of kin];]

[10. The relationship between [collateral next of kin] and

[decedent].]

Whether pecuniary loss has been proved by the evidence is for you to determine.

I.P.I. Civil No. 31.03 Measures of Damages -Wrongful Death - Minor

Child Decedent -Lineal and Collateral Next of Kin Surviving


[lineal and collateral next of kin, e.g. brother, parent, etc.] of the decedent for the pecuniary loss proved by the evidence to have resulted to [the lineal and collateral next of kin] from the death of the decedent.

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―Pecuniary loss‖ may include loss of money, benefits, goods, services, and society.

Where a decedent leaves [lineal next of kin], the law recognizes a presumption that the [lineal next of kin] have sustained some substantial pecuniary loss by reason of the loss of the child's society. The weight to be given this presumption is for you to decide from the evidence in this case.

There is no presumption of pecuniary loss to the [collateral next of kin] of the decedent.


[ 1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily contributed in the past;]

[ 2. What (money,) (benefits,) (goods,) (and) (services) the decedent was likely to have contributed in the future;]

[ 3. His age;]

[ 4. His sex;]

[ 5. His health;]

[ 6. His physical and mental characteristics;]



[ 9. The grief, sorrow, and mental suffering of [next of kin];]

[10. The relationship between [lineal and collateral next of kin] and [decedent].]

[Pecuniary loss must be reduced by the expenditures that you find the parent(s) would have been likely to incur for the child had the child lived.]

I.P.I. Civil. No. 31.07: Factors Not Considered in Determining

Pecuniary Loss

[Under Count ____________________,] In determining "pecuniary loss" you may not consider the following:

[1. The pain and suffering of the decedent;]

[2. The grief or sorrow of the next of kin;] [or]

[3. The poverty or wealth of the next of kin.]

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I.P.I. Civil. No. 31.09: Action for Wrongful Death and Survival Action

Brought By Personal Representative

The plaintiff administrator's or executor's name brings this action in a representative capacity by reason of his being [administrator] [executor] of the estate of deceased. He represents names of widow and/or next of kin, the [widow] [and] [next of kin] of the deceased, [and the estate of the deceased]. They are the real parties in interest in this lawsuit, and in that sense are the real plaintiffs whose damages you are to determine if you decide for the [administrator] [executor] of the estate of deceased's name.

I.P.I. Civil. No. 31.10: Damages - Survival Action

If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate the estate for any of the following elements of damages proved by the evidence to have resulted from the [negligence] [wrongful conduct] of the defendant during the period between the time of the decedent‘s injuries and the time of his death, taking into consideration the nature, extent, and duration of the injury:

[Here insert the elements of damages which have a basis in the evidence.]

Whether any of these elements of damages has been proved by the evidence is for you to determine.

I.P.I. Civil. No. 31.11: Damages - Loss of Society – Definition

When I use the term ―society‖ in these instructions, I mean the mutual benefits that each family member receives from the other's continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.

I.P.I. Civil. No. 31.12: Discount of Future Damages

If you find for the plaintiff, then in assessing damages you may consider how long the [ names next of kin ] will be likely to sustain pecuniary losses as a result of [ decedent's name ]'s death, considering how long [ decedent's name ] was likely to have lived and how long [ names of widow and/or next of kin ] [is] [are] likely to live.

In calculating the amount of these pecuniary losses consisting of money, goods or services, you must not simply multiply the life expectancies by the annual losses. Instead, you must determine their present cash value.

"Present cash value" means the sum of money needed now which, together with what that sum may reasonably be expected to earn in the future, will

106

equal the amounts of those pecuniary losses at the times in the future when they will be sustained.

Damages for [loss of society] are not reduced to present cash value.

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INDIANA

Thomas H. Neuckranz

Jordan D. Shea

Williams Montgomery & John Ltd.


(312) 443-3200


A wrongful act resulting in injury to a minor child gives rise to two causes of action: one in favor of the injured child and the other in favor of the parent.

Elkhart Cmty. Sch. V. Yoder, 696 N.E.2d 409, 416 (Ind. Ct. App. 1998). Indiana courts refer to the child‘s action as ―one for personal injury, while the cause of action to the parent is one for property damage.‖

Id.

A parent of guardian‘s right to bring an action for injury to a child is provided by statute. See Ind. Code § 34-

23-2-1(c).

I. Parent’s Damages:

1. Reasonable and Necessary Medical Expenses . Hockema v. J.S., 832

N.E.2d 537, 542-43 (Ind. Ct. App. 2005). Both parents have a legal responsibility to pay the child‘s necessary medical expenses. St.

Mary’s Med. Ctr., Inc. v. Bromm,

661 N.E.2d 836, 837 (Ind. Ct. App.

1996). The obligation pay medical expenses is not a damage inflicted directly on the parents, and therefore the parents‘ right to recover is a derivative right dependent upon the child‘s right to recovery.

Hockema, 832 N.E.2d at 542. Because of the derivative nature of the claim for medical expenses, the child‘s comparative fault may reduce or bar the parents‘ recovery.

Id.

Medical bills are admissible into evidence and constitute prima facie evidence that the charges are reasonable. Ind. R. Evid. 413; Burge v.

Teter, 808 N.E.2d 124, 132 (Ind. 2004). Expert testimony is not required to establish reasonable expenses, but the defendant may rebut the prima facie evidence of reasonableness through cross examination or by introducing expert testimony. Stanley v. Walker, 906 N.E.2d 852,

856 (Ind. 2009). An injured plaintiff may recover for the reasonable value of medical services, which may be less than the full amount billed.

Butler v. Ind. Dep’t of Ins.,

904 N.E.2d 198, 202 (Ind. 2009).

Where the medical provider accepted a discounted rate, for example as a result of a contract with an insurer, the acceptance of the discounted rate may be admissible to establish that the bills are not reasonable.

Stanley, 906 N.E.2d at 859. The existence of insurance is not admissible. Id .; Ind. Code § 34-44-1-2.

108

2. Loss of services. Forte v. Connerwood Healthcare, Inc., 745 N.E.2d

796, 802 (Ind. 2001). The trier of fact measures the loss of services damages from the date of the injury until the date the child attains majority, age 18. Thompson v. Town of Ft. Branch, 178 N.E.2d 440,

444 (Ind. 1931); Ind. Model Civ. J.I. 713. Because loss of services is a direct claim of the parents, the child‘s comparative fault should not reduce recovery. See Hockema, 832 N.E.2d at 542. A parent may not recover for loss of love, society or companionship resulting from an injury to a child. Forte, 745 N.E.2d at 801.

3. The child’s lost earnings during his minority . Allen v. Arthur, 220

N.E.2d 658, 659-60 (Ind. Ct. App. 1966). Unless a minor is emancipated, that parent is entitled to recover the child‘s lost time, wages, and earning capacity during the child‘s minority.

Id.

Like the parent‘s loss of services claim, this is also a direct claim.

II.

Child’s Damages:

1. The nature and effect of the injury and the effect of the injury on the plaintiff’s ability to function as a whole. Canfield v. Sandrock,

563 N.E.2d 1279, 1282 (Ind. 1990). The Indiana Supreme Court has approved the model jury instruction directing the jury to consider ―the nature and effect of the injuries, and the effect of the injuries on the plaintiff‘s ability to function as a whole person.‖

Id. The jury should also consider whether the injuries are temporary or permanent, and whether they resulted in the aggravation of any previous condition. Id.

at 1281 n.1.

The Canfield court held that the trial court improperly instructed the jury to consider ―the effect of [the plaintiff‘s] injury upon the quality and enjoyment of his life.‖

Id.

at 1281-82. A plaintiff is entitled to recover for losses of pleasure or enjoyment that result from an injury.

Id.

at 1282. Those losses are embodied in the instruction that the jury consider the nature and extent of the injury, and the effect of the injury on the plaintiff‘s ability to function as a whole.

Id.

2. Impairment of earning capacity after the age of majority. Until the age of majority, the right to a child‘s earnings belongs to the parents.

Chicago, S.B. & N.I. Ry. Co. v. Seaman, 105 N.E.2d 234, 234 (Ind.

1914). After the age of majority, an injured plaintiff may recover difference between the amount he was capable of earning before the injury and the amount he was capable of earning after. Catt v. Skeans,

867 N.E.2d 582, 588 (Ind. Ct. App. 2007); Ind. Model Civ. J.I. 709.

109

A plaintiff claiming loss of earning capacity need not show that he was employed at the time of the injury. Rieth-Riley Const. Co., Inc. v.

McCarrell, 325 N.E.2d 844, 848 (Ind. Ct. App. 1975). The plaintiff must show more than proof of permanent injury and pain. Scott v.

Nabours, 296 N.E.2d 438, 441 (Ind. Ct. App. 1973). Through either expert or lay testimony, the plaintiff must submit evidence tending to show his injury had an adverse effect on vocation. Id. In awarding damages for loss of earning capacity, the jury may consider evidence of the ―plaintiff‘s age, life expectancy, health, training, experience, intelligence, and talents, as well as the nature of the injuries.‖

McCarrell, 325 N.E.2d at 849.

3. Physical and mental pain and suffering. Canfield, 563 N.E.2d at

1282. Juries are given wide latitude because awards for pain, suffering, and mental anguish are by their nature not readily susceptible to quantification. Weinberger v. Boyer , 956 N.E.2d 1095, 1113 (Ind. Ct.

App. 2011).

4. Reasonable and Necessary Medical Expenses . Either the parent of child may claim reasonable and necessary medical expenses. See discussion below.

5. Punitive Damages. A minor plaintiff may receive a punitive damages award under appropriate circumstances. See Stroud v. Lints , 790

N.E.2d 440, 442 (Ind. 2003). The purpose of punitive damages is to punish the wrongdoer and to deter others from similar misconduct.

Miller Pipeline Corp. v. Broeker , 460 N.E.2d 177, 183 (Ind. Ct. App.

1984). Punitive damages may be awarded where the defendant acted with malice, fraud, gross negligence or oppressiveness which was not the result of a mistake of fact or law, honest error of judgment, overzealousness, mere negligence, or other human failing. Kalwitz v.

Kalwitz , 934 N.E.2d 741, 754 (Ind. Ct. App. 2010). Compensatory damages are a prerequisite to an award of punitive damages. First

Bank of Whiting v. Schuyler , 692 N.E.2d 1370, 1374 (Ind. Ct. App.

1998). A punitive damage award must not be more than the greater of three times the compensatory damages or $50,000. Ind. Code § 34-51-

3-4. The plaintiff receives 25% of the punitive damages award and the remaining 75% is awarded to the state for a violent crime victims compensation fund. Ind. Code § 34-51-3-6.

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703 General Elements of Damages

If you decide from the greater weight of the evidence that [ defendant ] is liable to [ plaintiff ], then you must decide the amount of money that will fairly compensate [ plaintiff ].

In deciding the amount of money you award, you may consider:

(1) the nature and extent of the [injury][injuries], and the effect of the [injury][injuries] on the [ plaintiff ]'s ability to function as a whole person;

(2) whether the [injury][injuries] [is][are] temporary or permanent;

(3) the value of [ child's ] [lost time][lost earnings][and][loss or impairment of earning capacity] after [ child ] turn[s][ed] eighteen;

(4) the value of any earnings, services, kindness, or attention

[ child ] reasonably would have been expected to provide

[his][her] parents up to the time [ child ] turn[s][ed] eighteen, and that the parents have now lost (or can reasonably be expected to lose) as a result of [ defendant's ]

[negligence][wrongful conduct];

(5) the physical pain and mental suffering [ plaintiff ] has experienced [and will experience in the future] as a result of the [injury][injuries];

(5) the reasonable value of necessary medical care, treatment, and services plaintiff incurred [and will incur in the future] as a result of the [injury][injuries];

(6) the aggravation of a previous

[injury][disease][or][condition];

(7) the [disfigurement][and][or][deformity] resulting from the

[injury][injuries]; and

(8) the life expectancy of [ plaintiff ].

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Both the parent and the child are liable for necessary and reasonable medical services furnished to the child. Scott County Sch. Dist. 1 v. Asher , 324

N.E.2d 496, 499 (Ind. 1975). Both the parent and the child have a cause of action against the tortfeasor to recover medical expenses as damages. Id.

The Indiana

Supreme Court has held, ―[h]owever parent and child divide their claim for medical expenses, that division is of no consequence to the tortfeasor, as long as he is not subject to pay twice for the same expenses.‖ Id.

When the child reaches the age of majority, the parents‘ obligation to pay medical expenses incurred during the child‘s minority are not discharged.

See

Asher, 324 N.E.2d at 499. The parents may therefore maintain a claim against a tortfeasor for medical expenses incurred during the child‘s minority, despite the fact that the child is no longer a minor. However, the parents are not responsible for paying medical expenses incurred after the child attains majority. See

Hockema, 832 N.E.2d at 542. Claims against a tortfeasor for medical expenses incurred by an adult belong to the adult, and not to the parents. Id.

Damages Recoverable in a Child Wrongful Death Claim

Wrongful Death actions are created by statute. Durham ex rel. Estate of

Wade v. U-Haul Int’l , 745 N.E.2d 755, 758 (Ind. 2001). Indiana‘s Child Wrongful

Death Statute (CWDS) provides the exclusive right of recovery in actions resulting in the death of an unmarried person under age 20, or under age 23 if enrolled in school, which includes a fetus that has attained viability. Randles v.

Ind. Patient’s Compensation Fund,

860 N.E.2d 1212, 1220 (Ind. Ct. App. 2007);

Ind. Code § 34-23-2-1. The CWDS lists the exclusive types of damages a plaintiff may recover. See Ind. Code § 34-23-2-1(f). Punitive Damages not available. Fore v. Connerwood Healthcare, Inc., 745 N.E.2d 796, 799-800 (Ind. 2001).

I. Damages Recoverable:

1. Loss of the child’s services.

Ind. Code § 34-23-2-1(f)(1). The parents may recover for the loss of the child‘s services from the date of death until the shorter of (1) the date the child would have reached the age of

20, or age 23 if the child was enrolled in college, or (2) the date of death of the child‘s last surviving parent. Ind. Code § 34-23-2-1(g).

Evidence in support of a loss of services claim may include, for example, the fact that the child was healthy, helped with chores at home, and maintained a part-time job. Childs v. Rayburn , 346 N.E.2d

655, 665 (Ind. Ct. App. 1976).

2. Loss of the child’s love and companionship. Ind. Code § 34-23-2-

1(f)(2). The parent‘s relationship with the child provides evidence of the loss of the child‘s love and companionship.

Randles, 860 N.E.2d at

112

1232. Evidence of remarriage after the child‘s death or evidence of post-death relationship with other children is not admissible to mitigate damages. Id.

The parent is entitled to an award for loss of love and companionship from the time of the child‘s death until the actual or expected date of death of the last surviving parent. Robinson v. Wroblewski, 704 N.E.2d 467, 476 (Ind. 1998); Randles, 860 N.E.2d at 1231.

3. Medical expenses resulting from the wrongful act. Ind. Code § 34-

23-2-1(f)(3)(A). See prior discussion for evidentiary issues relating to proof of reasonable medical expenses.

4. Expenses of the child’s funeral and burial.

Ind. Code § 34-23-2-

1(f)(3)(B).

5. Reasonable Expenses of psychiatric and psychological counseling incurred by a surviving parent or minor sibling of the child resulting from the death.

Ind. Code § 34-23-2-1(f)(3)(C).

6. Uninsured debts of the child, including those for which a parent is obligated.

Ind. Code § 34-23-2-1(f)(3)(D).

7. Expenses of the administration of the child’s estate, including reasonable attorney’s fees.

Ind. Code § 34-23-2-1(f)(3)(E).

II. Jury Instructions

735 Wrongful Death—Death of Child

If you decide from the greater weight of the evidence that [ defendant(s) ]

[is][are] liable to [ plaintiff(s) ], you must then decide the amount of money that will fairly compensate [ plaintiff(s) ] for the loss they suffered from the wrongful death of [ child ].

In determining the amount of money to award, you may consider only the value of:

(1) the loss of [ child ]'s services;

(2) the loss of [ child ]'s love and companionship;

(3) the cost of health care and hospitalization required by the wrongful act or omission that caused [ child ]'s death;

(4) the cost of [ child ]'s funeral and burial;

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(5) reasonable cost of psychiatric and psychological counseling incurred by [ surviving parent(s) and minor siblings ] and required as a result of the [ child ]'s death;

(6) [c hild ]'s uninsured debts, including debts that [ parent(s) ]

[is][are] required to pay on [ child ]'s behalf; and

(7) the cost of administering [ child ]'s estate, including reasonable attorney's fees.

In awarding damages for the loss of [ child ]'s love and companionship, damages may be awarded from the time of [ child ]'s death until the end of child's last surviving parent's life expectancy.

In awarding damages other than for loss of love and companionship, you may consider only the time from [ child ]'s death until:

(1) [he][she] would have reached the age of twenty;

(2) [he][she] would have reached the age of twenty-three years if [he][she] was enrolled in a postsecondary educational institution, or a career and technical education school or program that is not a postsecondary educational program; or

(3) the end of child's last surviving parent's life expectancy. whichever period you determine would have ended first.

114

IOWA

Kevin M. Reynolds

Whitfield & Eddy, PLC

Des Moines, Iowa

(515) 288-6041


In Iowa a minor does not have the capacity to sue for his personal injury.

Instead, such claims are brought by the parents under the authority of Iowa Rule of

Civil Procedure 1.206, formerly known as ―Rule 8.‖ Claims of this type are known generally in Iowa as ―Rule 8 claims.‖ Rule 8 covers a minor‘s claims for both personal injury and wrongful death.

Iowa R. Civ. P. 1.206 provides as follows:

―Rule 1.206. Injury or death of a minor

A parent, or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child.‖

Note:

A parent suing under Rule 8 cannot recover damages for pain, suffering, grief, or mental anguish from the loss of a child. Heimlicher v. Steele , 615 F.

Supp.2d 884 (N. D. Iowa 2009).


1. Medical and other related expenses.

These are recoverable by the parent under the ―expense‖ element of Rule 1.206.

2. Loss of earnings or wage earning capacity. As with any case involving personal injury, this claim can be made. See Iowa Uniform

Civil Jury Instruction No. 200.8 (2010)(Loss of time-earnings); 200.9

(2010)(Loss of Future Earning Capacity). There are no reported Iowa decisions that address how a claim for loss of future earning capacity may be proven, in the case of an injury to a minor. In practice, the plaintiff‘s attorney retains an economist to make future projections based on historical facts such as the parents‘ education, their work experience, and income, and the education, work experience and income of any older siblings, as well as any other relevant factors, such as school grades, part time work, and so forth. If the case involves an injury to a very young minor is involved, it would seem that such a claim would be overly speculative, and Iowa law is clear that in general, speculative damages are not recoverable. See, e.g.,

Hammes v. JCLB Properties, LLC, 764 N.W.2d 552 (Iowa App.

2008)(recovery is denied for speculative and uncertain damages).

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1.

Pain and suffering. This is recoverable. See Iowa Uniform Civil

Jury Instruction No. 200.12 (Physical and mental pain and suffering – past) and No. 200.13B (Physical and Mental Pain and Suffering –

Future)(2010)

2.

Permanent injury.

Under Iowa law this is referred to as ―Loss of Full

Mind and Body – Past, and Loss of Full Mind and Body – Future. See

Iowa Uniform Civil Jury Instruction Nos. 200.10 and 200.11B (2010).

3.

Punitive damages.

These claims are governed by Iowa Code

§668A.1 (2010). That statute provides that punitive damages may be awarded where ―by a preponderance of the clear, convincing and satisfactory evidence, the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of another.‖

See Iowa Code §668A.1(1)(a)(2010). Under Iowa law there is no proscription or prohibition against a minor‘s claim for punitive damages.

III. Model Jury instruction for Iowa: a. Medical Expenses for Child Iowa Uniform Civil Jury Instruction

200.29.

―If you find (father and/or mother) is entitled to recover for damage sustained by [him][her] as the result of the injury to (minor), it is your duty to determine the amount. In doing so you shall consider the following items:

The reasonable value of [hospital charges][doctor charges][prescriptions][other medical services] from the date of the injury to the present time.

The present value of reasonable and necessary [hospital charges][doctor charges][prescriptions][other medical services] which will be incurred for the child‘s injuries from the present time until the child

[reaches age eighteen years][marries]. b. Loss of Services/Companionship

―If you find (father and/or mother) is entitled to recover for damage sustained by [him][her] as the result of the injury to (minor), it is your duty to determine the amount. In doing so you shall consider the following items:

The reasonable value of the past loss of services, which include loss of companionship and society of the child, from the date of the child‘s injury

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to [the present time][the date the child reaches age eighteen years][marries]], minus the probable cost of the child‘s board and maintenance during that time period.

The present value of the future loss of services, which includes loss of companionship and society of the child, from the present time until the child [reaches age eighteen years][marries] minus the present value of the probable cost of child support and maintenance during that same time period.

[These] Items … include [loss of earnings of the child][the economic or financial value of the child‘s labor where the child is not employed] as well as the parents right to the intangible benefits of companionship, cooperation and affection of the child. They do not include mental anguish by the parent caused by the injury to the child.

In determining loss of companionship and society, you may consider the circumstances of the life of the child including:

1.

The child‘s age, health, strength, intelligence, character, interests and personality.

2.

Activities in the household and community.

3.

All other facts and circumstances bearing on the issue.

The amounts, if any, you find for each of the above items will be used to answer the special verdicts.‖

See also Gookin v. Norri s, 261 N.W.2d 692 (Iowa 1978); Wardlow v. City of Keokuk , 190 N.W.2d 439 (Iowa 1971).


The parent has the right to sue for medical expenses. See Iowa R. Civ. P.

1.206. It is unclear under Iowa law if the parent or child has the right to pursue medical expenses once the child reaches the age of majority.


In Iowa, a claim for the wrongful death of a minor is brought by the parents under the authority of Iowa Rule of Civil Procedure 1.206, formerly known as ―Rule 8.‖ Claims of this type are known generally in Iowa as ―Rule 8 claims.‖

I.

Wrongful Death of a Minor (who may bring suit):

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Iowa R. Civ. P. 1.206 provides as follows:

―Rule 1.206. Injury or death of a minor

A parent, or the parents, may sue for the expense and actual loss of services, companionship and society resulting from injury to or death of a minor child.‖(emphasis added).

II.

Wrongful Death Damages:

1.

Medical and other related expenses.

Pre-death medical expenses are recoverable under the ―expense‖ element of Rule 1.206.

See Iowa

Uniform Civil Jury Instruction No. 200.23 (2010).

2.

Loss of earnings or wage earning capacity. As with any case involving personal injury, this claim can be made. See Iowa Uniform

Civil Jury Instruction No. 200.8 (2010)(Loss of time-earnings).

3.

Pain and suffering. Pre-death conscious pain and suffering is recoverable. See Iowa Uniform Civil Jury Instruction No. 200.24

(Pre-Death Physical and Mental Pain and Suffering). See Poyzer v.

McGraw , 360 N.W.2d 748 (Iowa 1985); Lang v. City of Des Moines ,

294 N.W.2d 557 (Iowa 1980); and Holmquist v. Volkswagen of

America, Inc., 261 N.W.2d 516 (Iowa App. 1977).

4.

Present Worth of the Value of the Estate.

―The present value of the additional amounts (minor) would reasonably be expected to have accumulated as a result of his/her own effort from the date he/she would have [reached age eighteen years][married] until he/she had lived out the terms of his/her life.‖

See Iowa Uniform Civil Jury

Instruction No. 200.27 (2010).

5.


These claims are governed by Iowa Code

§668A.1 (2010). That statute provides that punitive damages may be awarded where ―by a preponderance of the clear, convincing and satisfactory evidence, the conduct of the defendant from which the claim arose constituted willful and wanton disregard for the rights or safety of another.‖

See Iowa Code §668A.1(1)(a)(2010). Under Iowa law there is no proscription or prohibition against a minor‘s claim for punitive damages in a wrongful death case.

III. Model Jury Instructions: a. Wrongful Death. Iowa Uniform Civil Jury Instruction No. 200.26.

―If you find (name) as personal representative of the estate of (decedent) is to recover damages, it is your duty to determine the amount. In doing so you shall consider the following items:

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1.

Pre-death Physical and Mental Pain and Suffering;

2.

Pre-death Loss of Full Mind and Body.

3.

Present Worth of Value of the Estate.

The amount you assess for [physical and mental pain and suffering][loss of function of mind and body] cannot be measured by any exact or mathematical standard. You must use your sound judgment based upon an impartial consideration of the evidence. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against the parties. The amount you assess for any item of damage must not exceed the amount caused by the defendant(s) as proved by the evidence.

A party cannot recover duplicate damages. Do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage. [Similarly, damages awarded to one party shall not be included in any amount awarded to another party.]

The amounts, if any, you find for each of the above items will be used to answer the special verdicts.‖ b. Present Worth of Value of Estate – Minor . Iowa Uniform Civil Jury

Instruction No. 200.27

―The present value of additional amounts (minor) would reasonably be expected to have accumulated as a result of [his][her] own effort from the date [he][she] would have [reached age eighteen][married] until [he][she] had lived out the terms of [his][her] life.

In determining this amount, you may consider:

1.

His/her life expectancy.

2.

His/her health, physical and mental condition.

3.

His/her habits as to industry, thrift and economy.

4.

His/her interest in school.

5.

His/her grades and attendance in school.

6.

The occupation of his/her parents.

7.

The uncertainties of life such as ill health, unemployment, increased or decreased earning capacity as age advances.

8.

The amount of taxes, both federal and state, which would be payable out of earnings.

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9.

All other facts and circumstances bearing on the amount he/she might have accumulated.‖ c. Elements – Death of a Minor – Rule 8 Claim . Iowa Uniform Civil

Jury Instruction No. 200.28.

―If you find(father and/or mother) is entitled to recover damages as a result of the death of (minor), it is your duty to determine the amount. In doing so you shall consider the following items:

1.

The reasonable value of the past loss of services, which include loss of companionship and society of the child, from the date of death to [the present time][the date the child would have

[reached age eighteen years][married]] minus the probable cost of the child‘s board and maintenance during that time period.

2.

The present value of the future loss of services, which include loss of companionship and society of the child from the present time until the child would have [reached age eighteen years][married]] minus the present value of the probable cost of the child‘s board and maintenance during that time period.

3.

The interest on the reasonable burial expenses of the child from the time of death until the time those expenses would normally be paid. The amount cannot exceed the reasonable cost of the burial.

4.

The reasonable value of necessary [hospital charges][doctor charges][prescriptions][other medical services] from the date of injury to the time of death.

Items 1 and 2 include [loss of earnings of child][the economic or monetary value of the child‘s labor where the child is not employed], as well as the parent‘s right to the intangible benefits of companionship, cooperation and affection of the child. They do not include the parent‘s mental anguish caused by the child‘s death.

In determining loss of companionship and society, you may consider the circumstances of the life of the child including:

1.

The child‘s age, health, strength, intelligence, character, interests and personality.

2.

Activities in the household and community.

3.

All other facts and circumstances bearing on the issue.

The amount you assess for loss of services in the past and future cannot be measured by an exact or mathematical standard. You must use your sound

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judgment based upon an impartial consideration of the evidence. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against the parties. The amount you assess for any item of damages must not exceed the amount caused by the defendant(s) as proved by the evidence.

A party cannot recover duplicate damages. Do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage. [Similarly, damages awarded to one party shall not be included in any amount awarded to another party.]‖

See also Gookin v. Norris , 261 N.W,.2d 692 (Iowa 1978); Wardlow v. City of Keokuk, 190 N.W.2d 439 (Iowa 1971).

Special evidentiary rule:

Pre-death loss of services is not an item recoverable by the estate. See

Madison v. Colby , 348 N.W.2d 202 (Iowa 1984).

121

KANSAS

Kara T. Stubbs

Michael J. Serra

Baker Sterchi Cowden & Rice LLC

Kansas City, Missouri

(816) 471-2121



1. Medical Expenses . The fundamental principle of the law of damages is that a person who suffers personal injuries because of the negligence of another is entitled to recover the reasonable value of medical care and expenses for the treatment of his or her injuries. See Bates v.

Hogg , 921 P.2d 249 (Kan. App. 1996). The reasonable value of medical services is the measure used to determine damages to an injured party in a personal injury matter. See Martinez v. Milburn

Enterprises, Inc.

, 233 P.3d 205 (Kan. 2010). This value is not exclusively based on the actual amount paid or the amount originally billed, though these figures certainly may constitute evidence as to the reasonable value of medical services.

See id.

2. Economic Loss. A defendant in any action is allowed to have amounts allowed for future damages reduced to present worth where there are reasonable grounds to expect that the amount awarded may be safely and profitably invested. See Gannaway v. Missouri-Kansas-Texas Rld.

Co ., 575 P.2d 566 (Kan. App. 1978). Evidence demonstrating how to compute present worth, either by way of expert testimony or appropriate mathematical tables or formulae, is admissible in any action in which substantial future damages are claimed. See id.

Impairment of an injured party's capacity to earn is relevant in calculating that party's loss of income. See Cerretti v. Flint Hills Rural

Electric Co-op Ass'n , 837 P.2d 330 (Kan. 1992) . The amount of damages to be awarded is determined by comparing what the injured party was capable of earning at or before the time of the injury with what the party is capable of earning after the injury. See Morris v.

Francisco , 708 P.2d 498 (Kan. 1985).


1. Cap on Non-Economic Damages .

K.S.A. § 60-19a02 limits the maximum allowable recovery for noneconomic loss to $250,000 in any action for personal injuries.

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2. Pain and suffering . In Kansas, the trial court can allow a plaintiff to argue loss of enjoyment of life and instructed the jury that such a loss is an element of disability, pain, and suffering.

See

Gregory v. Carey ,

791 P.2d 1329 (Kan. 1990).

3. Disability . A disability may be a noneconomic loss or an economic loss.

See

Cott v. Peppermint Twist Mgt. Co.

, 856 P.2d 906 (Kan.

1993). If damages are awarded for pain and suffering based upon a disability, the disability is a noneconomic loss subject to a damages cap. See id.

If the damages award is for diminished earning capacity based on that disability, the loss is economic and not subject to a damages cap. See id.

4. Disfigurement . Disfigurement has been defined as that which impairs or injures the beauty, symmetry or appearance of a person or thing, that which renders unsightly, misshapen or imperfect, or deforms in some manner.

See

Smith v. Marshall , 587 P.2d 320 (Kan.

1978).

Evidence of a locking elbow which occurred frequently and without warning meets the definition of disfigurement.

See

Ratterree v. Bartlett , 707 P.2d 1063 (Kan. 1985).


171.02 Types of Damages Allowed—Personal Injury a.

When determining the amount of damages sustained by the plaintiff, you must allow the amount of money that will reasonably compensate plaintiff for his/her injuries and losses resulting from the occurrence in question.

These injuries and losses may include any of the following shown by the evidence:

1. MEDICAL EXPENSES. Medical expenses include the reasonable expenses of necessary medical care, hospitalization and treatment received as a result of plaintiff's injuries to date (and the medical expenses plaintiff is reasonably expected to incur in the future) [reduced to present value].

2. ECONOMIC LOSS. Economic loss includes loss of time or income and losses other than medical expenses incurred as a result of plaintiff's injuries to date (and the economic loss plaintiff is reasonably expected to incur in the future) [reduced to present value].

3. NONECONOMIC LOSS. Noneconomic loss includes pain, suffering, disabilities, disfigurement and any accompanying mental

123

anguish suffered as a result of plaintiff's injuries to date (and the noneconomic loss plaintiff is reasonably expected to suffer in the future).

When determining the amount of damages owed to the plaintiff you must consider plaintiff's age and condition of health before and after the occurrence in question. Also, you must consider the nature, extent and duration of the plaintiff's injuries. There is no unit value and no mathematical formula the court can give you for determining items such as pain, suffering, disability, and mental anguish. You must establish an amount that will fairly and adequately compensate the plaintiff. This amount rests within your sound discretion.

You must itemize the amounts of damages awarded in this case on the verdict form that will be given to you. b. 171.04 Damages for Increased Injury Resulting from

Rendering Aid

If plaintiff sustained personal injury as a result of defendant's negligence, then plaintiff may recover damages from defendant for any additional harm which resulted from the efforts of (other persons)(a treating physician) to render aid to plaintiff, so long as those efforts were not performed in a negligent manner. c. 171.40 Measure of Damages—Personal or Property—Short

Form

If you find for the plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate the plaintiff for the (injuries and) damages you believe plaintiff sustained as a result of the occurrence complained of by plaintiff. d. 171.42 Duty to Mitigate Damages

In determining the amount of damages sustained by plaintiff, you should not include any loss which plaintiff could have prevented by reasonable care and diligence exercised by plaintiff after the loss occurred. e. 171.43 Aggravation of Preexisting Condition

Plaintiff is not entitled to recover for any physical ailment, defect, or disability that existed prior to the occurrence. However, if the plaintiff had a preexisting physical ailment, defect or disability and you find this condition was aggravated or made active causing increased suffering or

124

disability, then the plaintiff is entitled to recover for such increased suffering and disability. f. 171.44 Punitive Damages

In this case the plaintiff claims the defendant acted in a (willful) (wanton)

(fraudulent) (malicious) manner toward plaintiff. If you award the plaintiff actual damages, then you may consider whether punitive damages should be allowed. Punitive damages may be allowed in the jury's discretion to punish a defendant and to deter others from like conduct.

Who ―owns‖ the right to sue for medical expenses? Parent of child? If parent does that end at the age of majority when it becomes child’s claim?

Generally, the right to seek medical expense damages for an injured child belongs to the parent. See Wilson v. Knight , 982 P.2d 400 (Kan. App. 1999). The parents' cause of action for medical expenses can be shifted to the minor if: (1) the minor child has paid or agreed to pay the expenses; (2) the minor child is legally responsible for payment (emancipation, death or incompetency of the parents); (3) if the parents waive or assign their right to recovery in favor of the minor; or (4) when recovery of expenses is permitted by statute.

See id. A parent can waive his or her right to recover for damages properly belonging to the parent if these damages are awarded in the child's action. A waiver will be considered sufficient if it protects the defendant against the danger of double recovery. See Villa Ex.

Rel. Villa v. Roberts , 80 F.Supp.2d 1229, 1233 (D.Kan.2000). The waiver can either be expressed formally or implied. See id.

A parent suing for consequential damages resulting to himself or herself from a negligent injury to a minor child is not bound by a judgment rendered in a prior action brought by the child, even if the parent, as guardian or next friend, actually instituted the child's action.

See Betz v. Farm Bureau Mut. Ins. Agency of

Kansas, Inc.

, 8 P.3d 756 (Kan. 2000).

Damages Recoverable in a Minor’s Wrongful Death Claim


1. Loss of filial care, attention, or protection . Kansas wrongful death statute does not preclude recovery of pecuniary damages for loss of filial guidance, counsel, and similar services. See Cochrane v.

Schneider Nat. Carriers, Inc ., 980 F.Supp. 374 (D. Kan. 1997). In death of minor who lives with his parents, there is implication of pecuniary loss. See Corman v. WEG Dial Tel., Inc.

, 402 P.2d 112

(Kan. 1965).

125

2. Loss of earnings you find the child would have contributed to the parent(s) during the remainder of the child's lifetime. In Kansas, inclusion of loss of future earnings of decedent within definition of pecuniary losses in claim for wrongful death is proper. See K.S.A. 60-

1903; see also Shinkle v. Union City Body Co.

, 1982, 94 F.R.D. 631

(D. Kan. 1982). Parents in wrongful death actions may recover pecuniary damages for the death of their majority age children. See

Huffman v. Thomas , 994 P.2d 1072 (Kan.App.1999).

3. Expenses for the care of the deceased caused by the injury . A recovery for the benefit of the next of kin against one whose wrongful act has occasioned a death, the damages recovered by a father for the death of his minor son may include compensation for expenditures reasonably made for medical services and funeral expenses.

See Marshall v. Miller , 212 P. 883 (Kan. 1923); see also K.S.A. 60-

1903.

4. Reasonable funeral expenses for the deceased .

Under the Kansas wrongful death statute, plaintiffs can recover nonpecuniary losses, pecuniary losses, and reimbursement for medical and funeral expenses as damages.

See Denton by Jamison v. United

States of America and Cushing Memorial Hospital , 1990 WL 98335

(D. Kan. July 3, 1990).

Compensable damages to the heirs in a wrongful death action include pecuniary as well as nonpecuniary damages, such as loss of support, loss of companionship, and mental anguish, sustained by the heirs on account of the decedent's death. See

Martin v. Naik , 228 P.3d 1092 (Kan. App., 2010); see also K.S.A. 60-

1903.


1. Cap on Damages . In any wrongful death action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages, other than pecuniary loss sustained by an heir at law, cannot exceed in the aggregate the sum of

$250,000 and costs. See K.S.A. 60-1903.

2. Mental anguish, suffering or bereavement. Damages are recoverable under Kansas law only for pain and suffering which is consciously experienced. See Sullivan v. U.S. Gypsum Co.

, 862

F.Supp. 317 (D. Kan. 1994). Award of damages for pain and suffering was proper in action brought against electric company alleging negligence in installing and maintaining high power line which caused death of plaintiff's decedent; witness testified that decedent was

126

breathing and audibly moaning immediately after injury from power line and later squeezed his wife's hand in response to her questions, and officer testified that decedent was breathing and making incoherent noises and appeared to be conscious. See Folks v. Kansas

Power and Light Co.

, 755 P.2d 1319 (Kan. 1988).

3. Loss of society, companionship, comfort or protection . In determining damages for wrongful death of plaintiff's husband, jury had right to consider mental anguish, suffering or bereavement, loss of society, companionship, comfort or protection, loss of marital care, attention, advice, or counsel in addition to loss of potential earning capacity. See Duran v. Mission Mortuary , 258 P.2d 241 (Kan. 1953).

In passing upon adequacy of award to parent for death of child, not only must pecuniary loss be taken into account, but consideration must be given also to those intangibles of grief, anguish, suffering. See

Corman v. WEG Dial Tel., Inc.

, 402 P.2d 112 (Kan. 1965).

III. Jury Instructions a. 171.32 Wrongful Death of a Child

If you find plaintiff is entitled to recover damages, you should allow the amount of money that will reasonably compensate plaintiff for the loss caused by defendant. There are two types of damages you may award: economic and noneconomic.

Economic damages include:

1.

Loss of filial care, attention, or protection.

2.

Loss of earnings you find the child would have contributed to the parent(s) during the remainder of the child's lifetime.

3.

Expenses for the care of the deceased caused by the injury.

4.

Reasonable funeral expenses.

For items 1 and 2 above you should allow an amount that you believe would be equivalent to the benefit plaintiff could reasonably have expected to receive from the continued life of the deceased.

Noneconomic damages include:

1.

Mental anguish, suffering, or bereavement.

2.

Loss of society, loss of comfort, or loss of companionship.

127

For noneconomic damages there is no unit value and no mathematical formula the court can give you. You should allow an amount that you find to be fair and just under all the facts and circumstances.

You will be given a verdict form in which you must itemize the amount of damages awarded for losses to date and the amount of damages awarded for future losses.

128

KENTUCKY

Susan S. Wettle

FROST BROWN TODD LLC

Louisville, Kentucky

(502) 589-5400


Personal injury to a minor child gives rise to two causes of action: 1) an action on behalf of the child for pain and suffering, permanent injury, and impairment of earning capacity after majority; and 2) an action by the parent for consequential damages including the loss of services and earnings during minority and expenses incurred for necessary medical treatment for the child's injuries.

Kentucky Service Co. v. Miracle, 246 Ky. 797, 56 S.W.2d 521 (Ky. 1933).



Past compensatory damages including reasonable and necessary medical bills are recoverable when proven by a preponderance of evidence. See generally, Ky. Cent. Ins. Co. v.

Schneider, 15 S.W.3d 373 (Ky. 2000).

2.

Future Medical Expenses . Damages can be awarded for future medical expenses. May v. Holzknecht, 320 S.W.3d 123 (Ky. App.

2010).

3.

Loss of services and earnings of child.

a.

Recovery by parents during minority of child . The parents of a child under the age of eighteen may jointly maintain an action for loss of the services or earnings of their child during his minority, when the loss is occasioned by an injury wrongfully or negligently inflicted on the child. K.R.S 405.010. If either the father or mother is dead, or has abandoned the child, or has been deprived of its custody by court decree, or refuses to sue, the other may sue alone. Id. b.

Recovery of impairment of power to earn money after reaching the age of majority . An injured child is entitled to recover for the permanent impairment of his power to earn money after becoming of age. Louisville Metro Housing Authority v.

Burns, 198 S.W.3d 147 (Ky. App. 2006). In Burns, the Court of

Appeals acknowledged that evidence of a child victim‘s future earnings may necessarily have some uncertainty, but questions about the reliability of such evidence are more evidentiary than substantive. ―It is a longstanding and well-established rule in this

Commonwealth that ‗[p]ermanent impairment of earning power is

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merely the test to be applied by the jury in determining the compensation to be awarded for permanent injury….‘ [Citation omitted.] We know of no better vehicle for assisting the jury in this regard than through the testimony of a qualified vocational and rehabilitation expert, whose credentials and methodologies went unchallenged in this case. Testimony concerning the future prospects of a child victim necessarily involves some degree of speculation, but that fact alone does not disqualify an infant plaintiff from receiving an award.‖

4. Settlements

. If a minor‘s claim for personal injury is settled for an amount equaling ten thousand dollars or less, exclusive of interest, the person having custody of the child may settle the claim, subject to the approval of the Court, without necessity of the appointment of a formal guardian. K.R.S. 387.280. Settlements that exceed ten thousand dollars require the appointment of a guardian pursuant to

K.R.S. 387.020 to settle the claim on behalf of the minor.


1. Physical Pain and Suffering.

Damages can be awarded for physical and mental pain and suffering, along with future pain and suffering.

See generally, Ky. Cent. Ins. Co. v. Schneider, 15 S.W.3d 373 (Ky.

2000); May v. Holzknecht, 320 S.W.3d 123 (Ky. App. 2010). Future pain and suffering is recoverable ―if there is evidence establishing that it is reasonably certain that pain and suffering will occur.‖ Id. at 128.

―If future medical expenses are awarded by a jury, there is a strong indication that a corresponding award for future pain and suffering must be considered. [Citation omitted.] However, there is no rule to suggest that where no future medical expenses are indicated, the jury is precluded from making an award. The test is whether there is evidence to indicate that the plaintiff‘s pain and suffering are likely to continue to occur.‖ Id. (Emphasis in original.)

2.

Punitive Damages . K.R.S. 411.184(1) provides that a plaintiff shall recover punitive damages only upon proving, by clear and convincing evidence that the defendant acted toward the plaintiff with oppression, fraud or malice. The Kentucky Supreme Court struck down that part of the statute found at K.R.S. 411.184(1)(c) to the extent the definition of ―malice‖ required a finding of heightened subjective awareness by the defendant. Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998). The

Court held that the right to recover punitive damages for gross negligence using an objective ―reasonable person‖ standard was a

―jural right‖ preserved and protected by Section 14 of the Kentucky

Constitution. Id. at 268-69.

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Kentucky does not have model instructions specific to damages recoverable by a minor child, except for the parent‘s recovery of lost services.

General Kentucky model instructions on damages provide: a. Past and future pain and suffering 2-39 Palmore & Cetrulo,

Kentucky Jury Instructions § 39.02

(Lexis 2011).

If you find for P you will determine from the evidence and award him a sum of money that will fairly and reasonably compensate him for whatever physical or mental suffering you believe from the evidence he has sustained or is reasonably certain to endure hereafter as a direct result of [the accident] [his injuries] not exceeding $ _________. b. Medical expenses 2-39 Palmore & Cetrulo, Kentucky Jury

Instructions § 39.06

(Lexis 2011).

If you find for P you will determine from the evidence and award him a sum of money that will fairly compensate him for whatever necessary and reasonable expenses for medical services you believe from the evidence he has incurred or is reasonably certain to incur hereafter as a direct result of his injuries, not to exceed $_________. c. Future lost earnings 2-39 Palmore & Cetrulo, Kentucky Jury

Instructions § 39.08

(Lexis 2011).

If you find for P you will determine from the evidence and award him a sum of money that will fairly and reasonably compensate him for such loss or impairment of his power to earn money in the future as you believe from the evidence he has suffered directly by reason of [his injuries] [the accident], not to exceed $_______. d.

Loss of services of a minor child 2-39 Palmore & Cetrulo, Kentucky

Jury Instructions § 39.10

(Lexis 2011).

If you find for P you will determine from the evidence and award him a sum of money that will fairly and reasonably compensate him for whatever loss of services and probable earnings of X [the child] prior to

X‘s reaching the age of 18 you believe from the evidence P has sustained and is reasonably certain to sustain in the future by reason of X‘s injuries, not to exceed $ _______.

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A minor may sue for his/her medical expenses in personal injury lawsuits.

See, e.g., Elmore v. Speicher, 481 S.W.2d 673 (Ky. 1972); Adams v. Combs , 465

S.W.2d 288 (Ky. 1971).

Although K.R.S. 405.010 does not specifically provide for a parent‘s right to recover medical expenses incurred as a result of the child‘s injury, there is dicta suggesting that the parent can recover such expenses. See Ky. Service Co. v.

Miracle,

56 S.W.2d 521 (Ky. 1933) (stating that parents can recover ―for the loss of the infant's services until he reaches his majority, and for nursing and taking care of him, and expenses for medicines and medical services.‖).

See, also,

Blackburn v. Burchett

, 335 S.W.2d 342, 343 (Ky. 1960) (―Plaintiff takes the position that an infant has one cause of action for his injuries and his parent has a separate cause of action for loss of services and medical expenditures. This is true.‖) Both cases were applying the predecessor statute to K.R.S. 405.010; however the language of the prior statute was essentially the same as the current statute and did not expressly provide for the parents‘ recovery of medical expenses. Ky. Stats., sec. 326a-1. In any event, it appears that the intent of K.R.S.

405.010 is to limit the parents‘ recovery of damages to only those incurred before the child reaches the age of eighteen.


I. Wrongful Death of a Minor (who may bring suit)

An action for wrongful death in Kentucky must be brought by the personal representative of the deceased. K.R.S. 411.130. The parents of a minor child may bring a separate action ―for loss of affection and companionship that would have been derived from such child during its minority….‖ K.R.S. 411.135.


1. Loss to the estate.

The action by the personal representative on may recover may recover damages consisting of ―loss to the estate.‖ In addition to funeral expenses, this loss is generally measured by the destruction of the deceased‘s power to earn money.

Birkenshaw v.

Union Light, Heat and Power Co., 889 S.W.2d 804, 806 (Ky. 1994).

The amount is generally calculated by figuring the probable life expectancy and the deceased‘s earning capacity.

Southern Ry. Co. v.

Evans’ Adm’r.,

63 S.W. 445, 446 (Ky. 1901).

2. Survival claims. Damages in a wrongful death action are intended to compensate for damages caused by the death. K.R.S. 411.130. If the deceased lived for some period of time between the injury and resulting death, the damages suffered during that period are also

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recoverable under a ―survival‖ statute that allows the personal representative to join the personal injury claims that the deceased would have had with the wrongful death claim. K.R.S. 411.133. This claim may include medical expenses, pain and suffering and lost wages for the time between the injury and resulting death. Vitale v.

Henchey, 24 S.W.3d 651 (Ky. 2000). Kentucky courts have held that an award for pain and suffering includes the element of loss of enjoyment of life and therefore no separate jury instruction on hedonic damages should be given. Transportation Cabinet, Dept. of Highways v. Thurman, 897 S.W.2d 597 (Ky. Ct. App. 1995).

3. Punitive damages. The wrongful death statute specifically recognizes the right to recover punitive damages if the death resulted from willful or grossly negligent conduct. K.R.S. 411.130(1).

4. Loss of services of minor child. K.R.S. 411.135 allows parents to recover for the loss of ―affection and companionship‖ for the death of a minor child. These damages are allowed for the period of time between the injury and the time the child would reach the age of maturity. Id. This statute creates a separate claim to be brought by the parents and is not affected by what the personal representative does with the general wrongful death claim allowable under K.R.S.

411.130. Dept. of Educ. v. Blevins, 707 S.W.2d 782 (Ky. 1986).


General Model Instruction for Recovery of Wrongful Death Damages

2-39 Palmore & Cetrulo, Kentucky Jury Instructions § 39.01

(Lexis

2011).

If you find for P you will determine the sum of money you believe from the evidence will fairly and reasonably compensate X‘s estate for the destruction of her power to earn money, not exceeding $______, together with funeral expenses not exceeding $_____.

Survival Action Damages under K.R.S. 411.133 and Parental

Recovery under K.R.S. 411.135

2-24 Personal Injury; Loss of Minor

Child Consortium§ 24.20 (Lexis 2011).

You will determine from the evidence and fix a sum or sums of money that will fairly and reasonably compensate X‘s estate for such of the following damages as you believe from the evidence has been sustained directly by reason of the accident, for

(1) Funeral expenses, not exceeding $_______;

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(2) Destruction of his power to earn money after he would have become 18 years of age, not exceeding $_________;

(3) Mental and physical pain and suffering of X between [the time of the accident] and his death. $______.

AND a sum or sums of money that will fairly and reasonably compensate P2 and P3 [X‘s mother and father] for such of the following damages as you believe from the evidence they have sustained directly by reason of X‘s death:

(1) Loss of X‘s services [prior to his reaching 18 years of age], not exceeding $_______;

(2) Loss of affection and companionship that would have been derived from X during his minority. $______

134

LOUISIANA

C. Michael Hart

Taylor Porter Brooks & Phillips L.L.P.

Baton Rouge, Louisiana

(225) 387-3221

Damages Recoverable in a Minor's Personal Injury Action

In McGee v. A C And S, Inc., 933 So. 2d 770, 2005-1036 (La. 7/10/06), the Louisiana Supreme Court provided the following summary of damages generally recoverable under Louisiana law:

―In Louisiana, delictual actions are governed by La. C.C. art. 2315, which states that ―[e]very act of man that causes damage to another obliges him by whose fault it happened to repair it.‖ Thus, under

La. C.C. art. 2315, a tortfeasor must compensate a tort victim for all of the damages occasioned by his act. The term ―damages‖ refers to ―pecuniary compensation, recompense, or satisfaction for an injury sustained.‖ Fogle v. Feazel, 201 La. 899, 909, 10 So.2d

695, 698 (1942). In the delictual context, La. C.C. art. 2315 authorizes *774 compensatory damages. Compensatory damages encompass those damages ―designed to place the plaintiff in the position in which he would have been if the tort had not been committed.‖ Frank L. Maraist & Thomas C. Galligan, Jr.,

LOUISIANA TORT LAW § 7-1 (Michie 1996) (footnotes omitted).

Compensatory damages are further divided into the broad categories of special damages and general damages. Special damages are those which have a ―ready market value,‖ such that the amount of the damages theoretically may be determined with relative certainty, including medical expenses and lost wages, while general damages are inherently speculative and cannot be calculated with mathematical certainty. Id. § 7-2 (footnotes omitted).‖ McGee v. A C And S, Inc., 933 So. 2d @ p.772

I. Proper Party to Assert Claims on Behalf of a Minor:

The father is the proper plaintiff to sue to enforce a right of an unemancipated minor who is born of the marriage of parents who are not divorced or judicially separated. The mother is the proper plaintiff when the father is mentally incompetent, committed, interdicted, imprisoned, or an absentee. With the permission of the Court the mother may represent the minor whenever the father fails or refuses to do so. An attorney appointed by the court having jurisdiction over an unemancipated minor who is in the legal custody of the

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Department of Children and Family Services is the proper plaintiff to sue to enforce a right on behalf of that unemancipated minor. Louisiana Code of Civil

Procedure, art. 683.

II. Economic Damages:

1. Property Damages - Property damages are recoverable.

2. Medical and Other Related Expenses

– Past and future medical expenses or other related expenses related to an injury or death of a minor are claims that belong to the parent or tutor, but which are recoverable.

3. Loss of Wages or Diminished Future Earning Capacity - Loss of

Wages or Diminished Future Earning Capacity is a recoverable expense. See Bowens v. Patterson, 716 So.2d 69, 97-876 (La. App. 3

Cir. 6/3/98) .

III. Non-Economic Damages:

1. Loss of Enjoyment of Life - Louisiana does allow recovery of damages for loss of enjoyment of life in a personal injury brought on behalf of a minor. McGee v. A C And S, Inc., 933 So. 2d @ p.772

2. Pain and Suffering, Emotional Distress, and Mental Anguish – are all recoverable damages (Louisiana Civil Code Art. 2315)

3. Exemplary (Punitive) Damages – Louisiana law provides for recovery of exemplary damages under limited circumstances, but which include claims where: a. b. c.

Proof that the injuries were caused by an act of pornography involving juveniles (La. Civil Code Article

2315.3).

Damages caused by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries. (La. Civil Code Article 2315.4).

Damages caused by criminal sexual activity occurring during childhood - Exemplary (Punitive) damages can be recovered for criminal sexual activity which occurred when the victim was seventeen years or younger, regardless of whether the defendant was prosecuted for his or her acts

(La. Civil Code Article 2315.7)

4. Damages caused by injury to another (bystander injuries) –

Louisiana does allow recover of damages by one who is outside of a

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―zone of danger‖ who views an accident causing injury to another person or who may come upon the scene of the accident soon after the occurrence of the accident. Bystander recovery is limited to specified close relationships to the injured person, and which includes parents, grandparents, children, grandchildren, siblings, and spouses. (La Civil

Code Article 2315.6).


I. Wrongful Death Statute

The right to assert a claim for the wrongful death of a minor is outlined in

Louisiana Civil Code Art. 2315.2, which provides as follows:

If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:

(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

A. Economic Damages:

1. Property damages are recoverable

2. Funeral, medical, and other related expenses are recoverable

3. Future earning capacity - Recovery of future lost wages by a parent are generally considered to be ― inherently speculative‖ and may not be recovered in a wrongful death claim of a minor.

B. Non-Economic Damages:

1. Loss of Enjoyment of Life - Louisiana does not allow recovery of damages for loss of enjoyment of life in the wrongful death claim for a minor‘s death. See, McGee v. A C And S, Inc., 933 So. 2d 770, 780,

2005-1036 (La. 7/10/06),

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2. Pain and Suffering, Emotional Distress, and Mental Anguish – suffered by the parents are all recoverable damages by the parents

3. Exemplary (Punitive) Damages – Louisiana law provides for recovery of exemplary damages under limited circumstances, but to include: a. Proof that the injuries were caused by an act of pornography involving juveniles (La. Civil Code Article

2315.3) b. c.

Damages caused by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries. (La. Civil Code Article 2315.4)





―zone of danger‖ who views an accident causing injury to another person or who may come upon the scene of the accident soon after the occurrence of the accident. Bystander recovery is limited to specified close relationships to the injured person, and which includes parents, grandparents, children, grandchildren, siblings, and spouses. (La Civil

Code Article 2315.6)

II. Survival Action

If a person who has been injured by the tort of another dies, the right to recover all damages for injury to that person and his property shall survive for one year, and may be brought by the following classifications of individuals set forth in Louisiana Civil Code Art. 2315.1:

1.

2.

3.

The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.

The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.

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4. The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving

A. Economic Damages:

1. Property damages are recoverable

2. Funeral, medical, and other related expenses are recoverable

3. Future earning capacity - Recovery of future lost wages by a parent are generally considered to be ― inherently speculative‖ and may not be recovered in a wrongful death claim of a minor.

B. Non-Economic Damages:

1. Loss of Enjoyment of Life - Louisiana does not allow recovery of damages for loss of enjoyment of life in the wrongful death claim for a minor‘s death. See, McGee v. A C And S, Inc., 933 So. 2d 770, 2005-

1036 (La. 7/10/06).

2. Pain and Suffering, Emotional Distress, and Mental Anguish – suffered by the parents are all recoverable damages by the parents.

3. Exemplary (Punitive) Damages – Louisiana law provides for recovery of exemplary damages under limited circumstances, but to include: a. Proof that the injuries were caused by an act of pornography involving juveniles (La. Civil Code Article

2315.3) b. c.

Damages caused by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries. (La. Civil Code Article 2315.4)





―zone of danger‖ who views an accident causing injury to another person or who may come upon the scene of the accident soon after the occurrence of the accident. Bystander recovery is limited to specified close relationships to the injured person, and which includes parents,

139

grandparents, children, grandchildren, siblings, and spouses. (La Civil

Code Article 2315.6).

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MAINE

Martha C. Gaythwaite

Marie J. Mueller

Friedman Gaythwaite Wolf & Leavitt

Portland, Maine

(207) 761-0900



1. Medical and Related Expenses

. The minor‘s parent is entitled to recover for the reasonable value of medical and nursing services incurred in treating the child‘s injury, even those provided gratuitously by the parent. Roberts v. Tardif , 417 A.2d 444 (Me. 1980).

2. Loss of Earnings.

Loss of earnings damages are available for an injury to a child. Roberts v. Tardif , 417 A.2d 444 (Me. 1980) (the evidence supported a finding that a child‘s injury during birth would result in continued impairment in the use of her left arm). Maine has not outlined a specific standard that a minor plaintiff must satisfy to be entitled to such damages. However, in a case involving a plaintiff injured at the age of 18, the court stated: ―Direct and specific evidence of the extent of the impairment, measured in money, is not necessary…the assessment of damages for impairment of earning capacity rests largely upon the common knowledge of the jury or other fact-finder, sometimes with little aid from evidence; helpful evidence is admissible, although it does not furnish any mathematical valuation of the impairment.‖

Kaler v. Webster , 348 A.2d 702, 703 (Me. 1975), quoting Goldstein v. Sklar , 216 A.2d 298, 309 (Me. 1966). However, the mere showing of permanent impairment of some sort does not automatically entitle a plaintiff to a loss of earnings instruction; the quantum of evidence needed may vary from case to case, often depending on the vocation or circumstance of the plaintiff. Kaler , 348

A.2d at 703.


1. Hedonic Damages.

Under this general category, a plaintiff can recover for ―fear, pain, discomfort, anxiety or other mental or emotional distress, including the loss of enjoyment of life.‖ Seabury-

Peterson v. Jhamb , 15 A.3d 746, 2011 ME 25.

2. Disfigurement. Disfigurement may be considered in calculating the

―general‖ damages, including pain and suffering and loss of enjoyment

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of life. Smith v. Central Maine Power Co ., 2008 WL 7873357 (Me.

Super. Nov. 6, 2008); Neak v. Cascade Construction, Inc.

, 2001 WL

1710708 (Me. Super. July 20, 2001).

3. Permanent Impairment. Permanent Impairment damages are available for an injury to a child. Roberts v. Tardif , 417 A.2d 444

(Me. 1980) (the evidence supported a finding that a child‘s injury during birth would result in continued impairment in the use of her left arm).

4. Loss of Services.

The parents of a minor child jointly may maintain an action for loss of the services or earnings of that child when that loss is caused by the negligent or wrongful act of another. If one parent refuses to sue, the other may sue alone. 14 M.R.S.A. § 303


Common law punitive damages may be available in Maine for tortious conduct resulting in injury when the defendant acts with malice. Tuttle v. Raymond , 494 A.2d 1353 (see jury instruction below for standard).

6. Loss of Consortium is NOT recoverable. Loss of consortium damages are not available to parents based on injuries suffered by their child. Maine limits loss of consortium damages to spousal relationships. 14 M.R.S.A. § 302; Ms. K. v. City of South Portland ,

407 F.Supp.2d 290, 299 (D. Me. 2006).

7. Emotional Distress is NOT recoverable. Generally, when the personal injury tort already permits recovery for emotional suffering, a separate claim for negligent infliction of emotional distress is subsumed in that award. Curtis v. Porter , 2001 ME 158, ¶ 19, 784

A.2d 18, 26.

III. Jury Instructions from Maine Jury Instruction Manual, 4th Edition a.

Medical Expenses § 7-08

Medical expenses includes the reasonable value of medical services including; examination and care by doctors and other medical personnel, hospital care and treatment, medicine and other medical supplies shown by the evidence to have been reasonably required and actually used in treatment and care of the plaintiff, plus a sum to compensate the plaintiff for any medical care, medicines and medical supplies which you find are reasonably certain to be required for future treatment and care of the plaintiff caused by the defendant‘s negligence.

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b.

Lost Wages and Earning Power § 7-109

A sum to compensate the plaintiff for wages [earnings] which the plaintiff has lost because of the defendant‘s negligence, plus a sum to reasonably compensate the plaintiff for any loss of wages [earnings], which you find that the plaintiff is reasonably certain to suffer in the future because of the defendant‘s negligence. c.

Pain, Suffering and Mental Anguish § 7-111

A sum to reasonably compensate the plaintiff for any pain, suffering, mental anguish [and loss of enjoyment of life] already suffered by the plaintiff and caused by the defendant‘s negligence and for any pain, suffering, mental anguish [and loss of enjoyment of life] which you find that the plaintiff is reasonably certain to suffer in the future because of the defendant‘s negligence. d.

Permanent Impairment § 7-112

A sum which will compensate plaintiff reasonably for any permanent impairment which you find to be proximately caused by the defendant‘s negligence. Permanent impairment is injuries which result in permanent loss, loss of use, restriction of motion or impairment of some member or system of the plaintiff‘s body for the rest of his/her life.

It has been stipulated that a person of the plaintiff‘s age, in good health, has a life expectancy of __ years. You may apply a life expectancy to any determination you make regarding permanent impairment. And you may apply this life expectancy if you find the plaintiff meets the stipulated criteria of age and health. e. Punitive Damages § 7-114

If you find that [the plaintiff] sustained damages caused by the defendant‘s

[conduct on which the finding of liability was based], you may consider separately whether you should award [the plaintiff] punitive damages.

The function of punitive damages, if any are justified, is to award the plaintiff a sum that reflects the reprehensibility of the defendant‘s conduct and bears a reasonable relationship to the harm the plaintiff suffered.

You may award punitive damages only if you find that the plaintiff has proven, by clear and convincing evidence, that the defendant acted with malice.

Malice means that the defendant‘s conduct was motivated by ill will towards the plaintiff [or that the defendant engaged in deliberate conduct which, while motivated by something other than ill will toward any

143

particular person, is so reprehensible that malice toward a person injured as a result of the conduct can be implied. To meet this standard of implied malice, the conduct at issue must be such that it would almost certainly result in damages to the plaintiff].

The clear and convincing evidence standard is a higher standard than the preponderance of the evidence standard necessary to prove [the original liability claim]. To find facts proven by clear and convincing evidence, you must have an abiding conviction that it is highly probable that the facts that the plaintiff must prove are the correct view of the events at issue.

If you find that plaintiff has proven, by clear and convincing evidence, that defendant acted with malice, then you must decide whether punitive damages should be awarded and the amount of such damages. In deciding whether to award punitive damages and in determining the amount of any such damages, you may consider [the following:]

[1.] All aggravating and mitigating factors indicated by the evidence, including the reprehensibility of the defendant‘s conduct toward the plaintiff. In evaluating reprehensibility, you may consider the extent to which, if at all, the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public.

[And] 2. [Any criminal punishment that may have been imposed for the conduct in question. When a criminal punishment has been imposed, it may be considered as mitigating the amount of damages].

The amount of punitive damages that you award must be reasonably related to the harm to the plaintiff, including the harm caused by the reprehensibility of the defendant‘s conduct [and the ability of the defendant to pay such an award].


―[

A] parent or guardian [is entitled] to recover for medical expenses incurred in treating the minor‘s injuries.‖ Woodbury v. Hammond Lumber Co.

,

2003 WL 1665251 (Me. Super. Mar. 10, 2003), see Roberts v. Tardif , 417 A.2d

444 (Me. 1980). A parent is entitled to recover for reasonable medical and nursing expenses incurred in treating the child‘s injury, even if they are gratuitously supplied by the parent. Roberts v. Tardif , 417 A.2d 444 (Me. 1980).

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Maine‘s Law Court has not addressed exceptions to this general rule in which a minor may be able to recover for their pre-majority medical expenses.

However, in Woodbury v. Hammond Lumber Co.

, 2003 WL 1665251 (Me. Super.

Mar. 10, 2003), a Maine Superior Court has cited to Maine‘s Doctrine of

Necessaries, and ruled that a minor may be obligated to pay their own premajority medical expenses (and therefore recover for their payment) if they can demonstrate that their parent is either unable or unwilling to pay for necessary expenses. Woodbury v. Hammond Lumber Co., 2003 WL 1665251 (Me. Super.

Mar. 10, 2003).


I. Economic Damages Available

1. Medical Expenses. The jury may give damages that will compensate the estate for reasonable expenses of medical, surgical and hospital care and treatment. 18-A M.R.S.A. § 2-804(b).

2. Funeral Expenses. The jury may give damages that will compensate the estate for reasonable funeral expenses. 18-A M.R.S.A. § 2-804(b).

3. Lost Earnings. 2009 revisions to the statute permit full recovery of the decedent‘s lost earnings, without the need for any particular beneficiary to prove a loss of those earnings. Fitzpatrick v. Cohen ,

777 F.Supp.2d 193 (D. Me. 2011).


1.

Hedonic Damages. The jury may give damages not exceeding

$500,000 for the loss of comfort, society and companionship of the deceased, including any damages for emotional distress arising from the same facts as those constituting the underlying claim, to the persons for whose benefit the action is brought. 18-A M.R.S.A. § 2-

804(b). The applicable damages cap is that in effect at the time of the accident or event giving rise to the cause of action. Carter v. Williams ,

792 A.2d 1093, 1097, 2002 ME 50, ¶ 7.

Those pursuing claims under the wrongful death statute cannot make separate emotional distress claims arising from the same facts.

―Plaintiffs may not circumvent the statute‘s damage cap by bringing a separate emotional distress claim.‖

Carter v. Williams , 792 A.2d

1093, 1098-9, 2002 ME 50, ¶ 14, 19. One parent‘s claim of loss of consortium based on the other‘s emotional injuries from the accident was also precluded, as the emotional distress arose from the same facts

145

as the wrongful death claim. Carter , 792 A.2d at 1100, 2002 ME 50, ¶

25.

2. Punitive Damages. The jury may give punitive damages not exceeding $250,000, if warranted by the facts of the case. 18-A

M.R.S.A. § 2-804(b).

3. Pain and Suffering. Whenever death ensues following a period of conscious suffering, as a result of personal injuries due to the wrongful act, neglect or default of any person, the person who caused the personal injuries resulting in such conscious suffering and death shall, in addition to the action at common law and damages recoverable therein, be liable in damages in a separate count in the same action for such death, brought, commenced and determined and subject to the same limitation as to the amount recoverable for such death and exclusively for the beneficiaries in the manner set forth in subsection

(b), separately found, but in such cases there shall be only one recovery for the same injury. 18-A M.R.S.A. § 2-804(c). Damages for pain and suffering and for loss of enjoyment of life are limited to the period of survival that may exist between the alleged negligent event and the time of decedent‘s death.

Phillips v. Eastern Maine

Medical Center , 565 A.2d 306 (Me. 1989).

4. Loss of Full Life Expectancy is NOT recoverable.

Loss of full life expectancy is not a recoverable element of damages under the wrongful death statute. Phillips v. Eastern Maine Medical Center , 565

A.2d 306 (Me. 1989).

III. Jury Instructions from Maine Jury Instruction Manual, 4th Edition

§ 7-12 Burden of Proof – Wrongful Death/Comparative Negligence

[The plaintiff] has the burden of proof in this case. This means that [the plaintiff] must convince you that each of the elements of [her] claim are proven more likely than not. To find for the plaintiff you must determine that the facts that [she] must prove are more likely true than not true.

In this case, in addition to [the plaintiff‘s] negligence and damages claims that must be proven more likely than not, [the defense] contends that negligence by [the deceased] was a cause of the collision. [The defendant] must prove that it is more likely than not that [the deceased] was negligent and that [the deceased‘s] negligence was a cause of the collision. In deciding whether any fact has been proven more likely than not, you should consider the testimony of all witnesses, regardless of who presented them, and all exhibits received in evidence, regardless of who produced them.

146

To the extent the same types of damages are available, the instructions listed in Part III above are also applicable in a Wrongful Death action.

147

MARYLAND

Sidney G. Leech

Christopher R. Corchiarino

Goodell, DeVries, Leech & Dann, LLP

Baltimore, Maryland

(410) 783-4000



1. Medical and other related expenses . The parents or guardians of the child may pursue a claim for medical expenses incurred while treating the minor‘s injuries. Id.

at 693-94. However, the child may bring a claim to recover the medical expenses on his own accord upon demonstration that he or his estate will be individually responsible to pay for the medical expenses: (1) by emancipation,

(2) by death or incompetence of his or her parents, (3) as necessaries for which his or her parents are unable or unwilling to pay, or (4) by operation of a statute. Id.

at 694 (quoting Garay v.

Overholtzer , 332 Md. 339, 374, 631 A.2d 429 (1993)). More often than not, juries will have to decide with the aid of expert and lay testimony when necessary, whether and to what extent an injured child's medical necessaries exceed the financial ability of the parents. Johns Hopkins Hosp. v. Pepper , 346 Md. 679, 701, 697

A.2d 1358, 1369 (1997). Medical expenses may include necessary and reasonable expenses for hospital services, medical attention, medicine, and nurses. Plank v. Summers , 203 Md. 552, 562, 102

A.2d 262 (1954). A plaintiff may also recover future medical expenses. Naughton v. Bankier , 114 Md. App. 641, 657-58, 691

A.2d 712 (1997).

Damages for medical expenses require evidence that the medical services provided were necessary and caused by the negligence of the defendant. Desua v. Yokim , 768 A.2d 56, 59 (Md. 2001)

(citing Metropolitan Auto Sales v. Koneski , 249 A.2d 141, 147

(Md. 1969);

Strong v. Prince George’s County

, 549 A.2d 1142,

1145 (Md. App. 1988)). Additionally, there must be evidence that the amount charged for the medical services was fair and reasonable. Desua , 768 A.2d at 58–59 (citing Shpigel v. White ,

741 A.2d 1205, 1211 (1999)). Mere evidence of the amount charged or payment tendered for the medical services is insufficient to establish the reasonableness of the value of the medical services. Desua , 768 A.2d at 59 (quoting Kujawa v.

Baltimore Transit Co.

, 167 A.2d 96, 102 (1961)).

148

2.

Lost wages or impairment of earning capacity.

A plaintiff can recover damages for lost wages. Smith v. Borello , 804 A.2d 1151,

1154 (Md. 2002). An injured person may recover for any loss, impairment, or diminution of his earning capacity as a consequence of his injury. Anderson v. Litzenberg , 115 Md. App.

549, 572, 694 A.2d 150 (1997). Impairment of earning capacity is measured by the lost capacity to earn, rather than what a person would have earned, i.e.

, lost wages. Id.

Moreover, ―‗[b]ecause impairment of earning capacity is not measured by what the claimant actually earned . . . a plaintiff can recover for impairment of earning capacity without establishing a prior track record of earnings.‘‖ Lewin Realty III, Inc. v. Brooks , 138 Md. App. 244,

282, 771 A.2d 446 (2001) (quoting Anderson , 115 Md. App. at

575). Damages for loss of future earnings may be reduced to present value. Walston v. Sun Cab Co.

, 298 A.2d 391, 399–400

(Md. 1973), aff'd , Sun Cab Co. v. Walston , 289 A.2d 804 (Md.

App. 1972) (wrongful death action); Dennis v. Blanchfield , 428

A.2d 80, 85 (Md. App.1981), modified on other grounds sub. nom.

Blanchfield v. Dennis , 438 A.2d 1330 (Md. 1982) (personal injury action). It is a defendant's burden to ensure the foundation has been laid for a downward adjustment of an award to present value.

Lewin Realty III, Inc. v. Brooks , 771 A.2d 446, 477 (Md. App.

2001). Similarly, it is a plaintiff's burden to produce economic evidence for an upward adjustment of a damage calculation, for example an adjustment for inflation. Lewin Realty III , 771 A.2d at

477. No instruction to modify the value of the award can be given, however, if there is no testimony in the case to support it. Baublitz v. Henz , 535 A.2d 497, 501 (Md. App. 1988).

3. Property Damage.

Property damages are recoverable.

4. Collateral Source.

The collateral source rule allows full recovery of all provable damages, ―regardless of the amount of compensation which the person has received for his injuries from sources unrelated to the tortfeasor.‖

Haischer v. CSX Transp., Inc.

,

848 A.2d 620, 627 (Md. 2004) (citing Motor Vehicle Admin. v.

Seidel , 604 A.2d 473, 481 (Md. 1992)).


1. Statutory Cap.

First enacted in 1986, Maryland Code, Courts and

Judicial Proceedings § 11-108, governs the statutory cap on noneconomic damages related to personal injury or wrongful death claims. Effective October 1, 1994, the cap on noneconomic damages in personal injury cases was raised to $500,000 and the cap was also

149

amended to apply to wrongful death cases. The cap has increased

$15,000 per year since October 1, 1995. The effective date for the

Maryland Cap Statute is when a cause of action arises. A cause of action arises when the facts to support each element of the cause of action exist and not when the cause of action is discovered. The burden of proof to show that the statutory cap is inapplicable rests with the plaintiff. John Crane, Inc. v. Scribner , 800 A.2d 727, 742 (Md.

2002). The cap is inapplicable to intentional torts and punitive damages.

2. Medical Injury Cap.

The Maryland Patients' Access to Quality

Healthcare Act of 2004 provides that an award of noneconomic damages for a cause of action arising between January 1, 2005 and

December 31, 2008 may not exceed $650,000. Since January 1, 2009, the limitation on noneconomic damages increases annually by increments of $15,000. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-09.

3. Physical pain and suffering. Physical or bodily pain and suffering may constitute a proper element of damages and in awarding such damages, a jury may take into consideration the effect on the health of the person injured, the future effect on the health of the person injured, and any resulting inconvenience that person may suffer. Baltimore

City Passenger Ry. Co. v. Kemp , 61 Md. 74 (1883).


Disfigurement may be considered as an element of damages in assessing past and prospective damages when the injury is permanent. White v. Parks , 154 Md. 195, 72-73, 140 A. 70 (1928).

5. Mental pain and suffering.

A plaintiff may recover for emotional distress or mental anguish only when such damages are accompanied by an actual physical injury or are capable of objective determination.

See, e.g.

,

Beynon v. Montgomery Cablevision Ltd. P’ship

, 351 Md.

460, 463-64, 718 A.2d 1161 (1998).

6. Punitive or exemplary damages.

Under Maryland law, a court may award punitive damages only upon a showing of actual malice, plead and proven by clear and convincing evidence. French v. Hines , 182

Md. App. 201, 248-49, 957 A.2d 1000 (2008). The Maryland Court of

Special Appeals has defined actual malice as, ―an act ‗intentionally performed without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff.‘‖

Id.

at 249 (quoting Shoemaker v.

Smith , 353 Md. 143, 163, 725 A.2d 549 (1999) (internal quotations omitted)). Actual malice encompasses only conscious and deliberate wrongdoing and not reckless, wanton, or grossly negligent conduct.

Scott v. Jenkins , 345 Md. 21, 32-34, 690 A.2d 1000 (1997)

(superseded on other grounds by Rule as stated in Hoile v. State , 404

150

Md. 591, 948 A.2d 30 (2008)). In a product liability action, the plaintiff must demonstrate the following to recover punitive damages:

(1) that the defendant actually knew of the defect and danger of the product at the time it left the defendant's possession, and (2) that the defendant consciously or deliberately disregarded the potential harm to consumers. See Bowden v. Caldor, Inc.

, 710 A.2d 267, 276-77 (Md.

1998).

III. Model Jury Instructions: a.

Compensatory Damages for Bodily Injury MPJI-Cv 10:2

In an action for damages in a personal injury case, you shall consider the following:

(1) The personal injuries sustained and their extent and duration;

(2) The effect such injuries have on the overall physical and mental health and well-being of the plaintiff;

(3) The physical pain and mental anguish suffered in the past and which with reasonable probability may be expected to be experienced in the future;

(4) The disfigurement and humiliation or embarrassment associated with such disfigurement;

(5) The medical and other expenses reasonably and necessarily incurred in the past and which with reasonable probability may be expected in the future;

(6) The loss of earnings in the past and such earnings or reduction in earning capacity which with reasonable probability may be expected in the future.

In awarding damages in this case you must itemize your verdict or award to show the amount intended for:

(1) The medical expenses incurred in the past;

(2) The medical expenses reasonably probable to be incurred in the future;

(3) The loss of earnings and/or earning capacity incurred in the past;

(4) The loss of earnings and/or earning capacity reasonably probable to be expected in the future;

151

(5) The ―Noneconomic Damages‖ sustained in the past and reasonably probable to be sustained in the future. All damages which you find for pain, suffering, pre-impact fright, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury are

―Noneconomic Damages‖;

(6) Other damages. b.

Punitive Damages – Generally MPJI-Cv 10:13

If you find for the plaintiff and award damages to compensate for the injuries (losses) suffered, you may go on to consider whether to make an award for punitive damages. A claim for punitive damages must be proved by clear and convincing evidence.

An award for punitive damages should be:

(1) In an amount that will deter the defendant and others from similar conduct.

(2) Proportionate to the wrongfulness of the defendant's conduct and the defendant's ability to pay.

(3) But not designed to bankrupt or financially destroy a defendant. c.

Third Party’s Liability to Parent for Tortious Injury to

Child MPJI-Cv 21:6

A person who injures a child is responsible to the child‘s parent for the parent's loss of the child‘s services and the parent's expenses incurred in treating the child until the child attains the age of eighteen or is otherwise emancipated. The parent may not recover for the pain and suffering sustained by the child. d.

Third Party’s Liability to Parent for Child’s Services

MPJI-Cv 21:5

A parent is entitled to the earnings of a minor child unless the parent has waived or forfeited that right or the child has been emancipated.


I. Wrongful Death of a Minor (who may sue)

152

A tortious injury to a minor child gives rise to a cause of action for the child, brought on behalf of the child by a parent, guardian, or next friend, for injuries suffered by the child. Arrabal v. Crew-Taylor , 159 Md. App. 668, 693,

862 A.2d 431 (2004) (abrogated on other grounds by McQuitty v. Spangler , 410

Md. 1, 976 A.2d 1020 (2009)).


Maryland's wrongful death statute (Md. Code Ann., Cts. & Jud. Proc. §§ 3-

901, et seq.

) and survival statute (Md. Code Ann., Est. & Trusts § 7-401) provide two separate causes of action. See Globe Am. Cas. Co. v. Chung , 547 A.2d 654,

659–61 (Md. App.) , vacated on other grounds , 589 A.2d 956 (Md. 1991).

Damages in a wrongful death action measure the harm to others caused by the death of the victim, and a survival action measures the harm to the victim after the injury and prior to the death. See ACandS, Inc. v. Asner , 657 A.2d 379, 397–98

(Md. App.), rev'd on other grounds and remanded , 686 A.2d 250 (Md. 1996).

1.

Economic Damages. Damages for future loss of earnings are based upon the victim‘s pre-tort life expectancy and may take into consideration the decedent‘s age, health, and occupation, and the comfort and support afforded his or her family at the time of death.

Damages for loss of future earnings are not recoverable in a survival action but are recoverable in a wrongful death suit. See Jones v.

Flood , 702 A.2d 440, 442–43 (Md. App.), aff'd , 716 A.2d 285 (Md.

1998).

2.

Non-economic Damages. In a wrongful death action the beneficiaries may recover, in addition to pecuniary loss, solatium damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance or education where applicable. Md. Code Ann., Cts. & Jud. Proc. § 3-904(d). The statutory cap on noneconomic damages applies to wrongful death actions. See Anchor Packing Co. v. Grimshaw , 692 A.2d 5, 13–14

(Md. App.) , vacated on other grounds and remanded , 713 A.2d 962

(Md. 1998).

3.

Punitive damages.

Punitive damages are not recoverable in a wrongful death action because the rights of the plaintiff in such an action are created by statute and that statute, Md. Code Ann., Cts. &

Jud. Proc. § 3-904, specifically limits the recoverable damages. See

Smith v. Gray Concrete Pipe Co.

, 267 Md. 149, 158-59, 297 A.2d 721

(1972).

153

4.

Pre-Impact Fright. The victim's estate may recover pre-impact fright damages in a survival action because the victim would be entitled to recover such damages had he or she survived. See generally University of Maryland Med. Sys. Corp. v. Malory , 795 A.2d

107 (Md. App. 2001), cert. denied , 796 A.2d 696 (Md. 2002).


Damages – Parent of Deceased Child MPJI-Cv 10:23

In determining the damages which will reasonably and adequately compensate each parent as a result of the death of their child you shall consider both economic and noneconomic losses.

The economic losses to be considered are any financial benefits a parent probably would have been expected to receive from the deceased child.

The noneconomic losses to be considered are the mental anguish, emotional pain and suffering, and the loss of society, companionship, comfort, protection, care, attention, advice, counsel or guidance, a parent has experienced or probably will experience in the future.

154

MASSACHUSETTS

David A. Barry

Andrew R. Levin

Sugarman, Rogers, Barshak & Cohen, P.C.

Boston, Massachusetts

617-227-3030


As a general matter, recovery of damages by a minor for personal injuries is no different than recovery of damages by any other plaintiff in an action for personal injuries.


1. Medical and Other Related Expenses . Medical, or other related expenses incurred as a result of such wrongful or negligent act or omission or breach of warranty are recoverable by a minor. See, e.g.,

Detore v. Demers Bros.

, 312 Mass. 531, 533 (1942).

2. Lost Wages . Loss of wages (or loss of earning capacity) is recoverable by a minor bringing a personal injury claim. See Zarba v.

Lane , 322 Mass. 132, 135 (1947); Cross v. Sharaffa , 281 Mass. 329

(1933) (acknowledging difficulty in asking a jury to place a monetary value upon a minor‘s diminished earning capacity, but permitting a jury to do so provided that the award is not based upon pure conjecture).

3. Lost Earning Capacity. A disabling injury that results in a permanent impairment may be considered by the jury in determining the loss of earning capacity even when there has been no direct evidence as to the amount of loss of earning capacity that will result from the impairment. See, e.g.

, Cross v. Sharaffa , 281 Mass. 329

(1933).

4. Property Damages . Property damages are recoverable by a minor.



Generally, the measure of damages in a negligence action for personal injuries is fair compensation for the resulting injuries, which include pain and suffering. Donovan v. Philip

Morris USA, Inc.

, 455 Mass. 215, 222-23 (2009).

155

2. Hedonic Damages . While loss of enjoyment of life is an element of hedonic damages that is recoverable in a minor‘s personal injury action, loss of enjoyment of life is not available to plaintiffs who are not cognitively aware of the loss suffered. Keene v. Brigham &

Women's Hosp., Inc.

, 56 Mass. App. Ct. 10, 29, 775 N.E.2d 725, 739

(2002) (―A predicate for noneconomic damages has always been a showing that the plaintiff has actually experienced or will actually experience that item of damages in the future. Consistent with that approach is the [Massachusetts court‘s] conclusion that to be entitled to this item of damage, the plaintiff must possess a cognitive awareness of his loss.‖). In addition, to the extent that various aspects of hedonic damages overlap ( i.e.

, to the extent that the categories of pain and suffering or permanent disability overlap with loss of enjoyment of life experiences), duplicative damages must be avoided.

Id.

3. Disfigurement . The right of a minor to recover for disfigurement is settled under Massachusetts Law. See Taber v. Tenovsky , 313 Mass.

324, 325 (1943). See also Barrett v. Bucciarelli , 11 Mass.L.Rptr. 569

(2000).

4. Loss of Use of Limb . The loss of use of a limb is a recoverable expense. See Mirageas v. Massachusetts Bay Transp. Authority , 391

Mass. 815 (1984).

5. Punitive Damages . Except where authorized by statute, punitive damages are not recoverable in a negligence or breach of warranty action. International Fidelity Ins. Co. v. Wilson , 387 Mass. 841, 856 n.

20, 443 N.E.2d 1308, 1317 n. 20 (1983). However, punitive damages are recoverable under G.L. c. 93A, the Massachusetts Consumer

Protection Act, which encompasses claims for breach of warranty.

The statute allows for double or treble damages when the defendant‘s conduct has been willful and knowing. Recovery under c. 93A is decided by the Court, often with an ―advisory‖ but not binding verdict from the jury.

6 . Emotional Distress . Recovery for emotional distress in personal injury cases is permissible, but absent a physical injury, emotional distress recovery is limited to cases where defendant‘s conduct was extreme and outrageous and was either intentional or reckless. Agin v.

Howard Johnson Co.

, 371 Mass. 140 (1976). In a claim of negligent infliction of emotional distress, proof of some physical manifestation of the emotional distress is required such that the existence of the emotional distress can be verified by objective evidence. Payton v.

Abbott Labs , 386 Mass. 570 (1986).

156

III. Jury Instructions a. Negligence – General Instruction – Compensatory or Actual

Massachusetts Sup. Ct. Civ. Practice Jury Instructions, Vol. 1, §

2.1.13, pg. 2-31 (2 nd

ed. 2008).

The fourth element the plaintiff must prove is damages. You will only reach the issue of damages if you find that the defendant was negligent and that the defendant‘s negligence caused injury to the plaintiff.

As with all the other elements, the plaintiff bears the burden of proving

[his/her] damages by a fair preponderance of the evidence.

The purpose of the law in awarding damages is to compensate an injured person for the losses incurred because of another person‘s negligent conduct.

The object is to try to restore the person to the position [he/she] would have been in had the wrong not occurred. The purpose is not to reward the plaintiff and not to punish the defendant. Damages are to be awarded to the plaintiff as a fair and reasonable compensation for the legal wrong done to [him/her] by the defendant.

You must put aside your personal feelings during your deliberations and decide this case as the evidence and law dictate.

There is no special formula under the law to assess the plaintiff‘s damage.

It is your obligation to assess what is fair, adequate, and just. You must use your wisdom and judgment and your sense of basic justice to translate into dollars the amount which will fairly and reasonably compensate the plaintiff for [his/her] injuries. You must be guided by your common sense and your conscience. b. Negligence – Professional Malpractice Massachusetts Sup. Ct. Civ.

Practice Jury Instructions, Vol. 1, § 4.3.4, pg. 4-19 (2 nd

ed., 1 st

supp.

2011).

The plaintiff is entitled to receive compensation for the following:



Reasonable medical expenses that have been incurred or that will be incurred in the future;



Lost wages, loss of earning capacity, and other economic losses that have been incurred or that will be incurred in the future;



Pain and mental suffering, loss of companionship, embarrassment, and other items of general damages that have been incurred or that will be incurred in the future;



Any impairment or loss of bodily function, whether temporary or permanent in duration;

157



Any scarring or disfigurement caused by the defendant‘s negligence, as opposed to the natural consequence of necessary, nonnegligent treatment; and



Loss of chance of survival.

Recovery for physical and mental pain and suffering is limited to compensation for physical and mental pain and suffering that the plaintiff has actually experienced and will experience in the future.


Because a parent is legally obligated to provide medical care to a minor up until the age of majority, the recovery for medical expenses incurred as the result of an injury to a child rests with the parent to the extent such medical expenses have been incurred or will be incurred prior to the age of majority. Recovery for future medical expenses after the age of majority rests with the minor, who would thereafter be responsible for his own medical expenses. See Restatement, Second,

Torts, § 703(b) (Right of recovery for medical expenses suffered by a minor rests with parent up until age of majority). Cf ., Rodgers v. Boynton , 315 Mass. 279

(1943) (Distinguishing right of husband to recover for medical expenses incurred by wife, which is limited to past medical expenses, and right of father to recover for medical expenses incurred by minor child, which does not stop at trial)


I. Wrongful Death Damages

Recovery in Massachusetts for the wrongful death of a minor is governed by the Massachusetts Wrongful Death statute, M.G.L. c. 229, § 2. The nature of the particular damages sought and recovered will govern who is entitled to recover for the damages.

Recovery under the wrongful death statute for the ―fair monetary value of the decedent to the persons entitled to recover‖ as compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent‖ is limited to those persons entitled to recover under M.G.L. c. 229, § 1 (the intestacy statute) regardless of whether the decedent had a will, and awards are made individually for each person entitled to recover. In other words, the intestacy statute will govern which individuals are ―presumptive takers‖ entitled to recovery for such wrongful death damages, but will not govern how the award is to be distributed as this determination will be made individually by the jury based upon its assessment of each ―presumptive taker‘s‖ loss. See, e.g., Burt v. Meyer ,

400 Mass. 185 (1987) (M.G.L. c. 229, § 1 governs who is entitled to recover under wrongful death statute, but the recovery is for each individual entitled to

158

recover based on individual losses and is distributed in accordance with individual findings of loss, not in accordance with the intestacy statute); see also, Crowl v.

M. Chin Realty Trust , 700 F.Supp.2d 171 (D. Mass. 2010) (a wrongful death action, M.G.L. c. 229, § 1 defines those that are entitled to recover, while M.G.L. c. 229, § 2 defines how much they are entitled to recover.).

Recovery for the decedent‘s pain and suffering prior to death, or for punitive damages awarded under the wrongful death statute, will be for the decedent‘s estate and will be distributed according to the decedent‘s will or per the intestacy statute if the decedent dies intestate. See, e.g., Burt v. Meyer , 400

Mass. 185 (1987) (punitive damages are recovered for estate) and Poyser v.

United States , 602 F Supp. 436 (D. Mass. 1984) (recovery for conscious pain and suffering of a decedent is for the benefit of the decedent‘s estate).

1. Funeral, Medical and Other Related Expenses . Funeral, medical, or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty are recoverable by the estate. See M.G.L. c. 229, § 2.

2. Reasonably Expected Net Income . The fair monetary value of the decedent‘s reasonably expected net income are recoverable under the wrongful death statute for amounts that the decedent would have earned to the extent that those entitled to recover under the intestacy statute were the beneficiaries of such net income. See M.G.L. c. 229,

§ 2. Thus, it is likely that in all but the rarest of cases, there would be no recovery for the loss of earning capacity of the decedent when the decedent is a minor.

3. Services, Protection, Care and Assistance . A person entitled to recover under the wrongful death statute is also entitled to recover the fair monetary value of any services, protection, care or assistance that a minor provides. M.G.L. c. 229, § 2. This type of recovery would be more likely than a recovery for loss of earnings as a parent would more often be dependent upon a minor for services or assistance than for reasonably expected net income. See, e.g., Poyser v. United States ,

602 F. Supp. 436 (1984) (a wrongful death action, mother of decedent entitled to recover value of services that decedent minor provided through babysitting younger siblings).

4. Loss of Society, Companionship, Comfort, Guidance, Counsel, and

Advice . The wrongful death statute provides for recovery by those entitled to recover under the intestacy statute for the fair monetary value of the society, companionship, comfort, guidance, counsel and advice of the decent.

M.G.L. c. 229, § 2

5. Pain and Suffering . Pain and suffering experienced by the decedent between the time of injury and his/her subsequent demise is

159

recoverable by the estate, to be distributed in accordance with the distribution of the assets of the estate. Poyser v. United States , 602 F

Supp. 436 (D. Mass. 1984).

6. Punitive Damages . Punitive damages in a wrongful death case are recoverable in an amount of not less than five thousand dollars in such case as the decedent‘s death was caused by the malicious, willful, wanton, or reckless conduct of the defendant or by the gross negligence of the defendant. See M.G.L. c. 229, § 2. Such a recovery will be for the estate of the decedent and will be distributed in accordance with the proper distribution of the assets of the estate. Burt v. Meyer , 400 Mass. 185 (1987).

7. Loss of Enjoyment of Life . Under M.G.L. c. 229, § 2, damages are not recoverable for the loss of the decedent‘s life itself. See Keene v.

Brigham & Women’s Hospital, Inc.

, 56 Mass. App. Ct. 10, 27-28

(2002).

8. Grief, anguish and bereavement . Grief, anguish and bereavement of survivors are not elements of damages in a wrongful death action. See

MacCuish v. Volkswagenwerk A.G.

, 22 Mass. App. Ct. 380 (1986).

II. Model Jury Instruction:

Wrongful Death Massachusetts Sup. Ct. Civ. Practice Jury Instructions,

Vol. 1, § 3.5, pg. 3-7 (2 nd

ed. 2008).

I now turn to the subject of damages. You will only reach the issue of damages if you find that the defendant was negligent and that the defendant‘s negligence was a proximate cause of the decedent‘s death. If you find that the plaintiff is entitled to damages, then, as with all the other elements, the plaintiff bears the burden of proving [his/her] damages by a fair preponderance of the evidence. The purpose of the law in awarding damages is to reasonably and fairly compensate for the losses incurred because of another‘s negligent conduct. Recovery for wrongful death represents damages to the survivors for the loss of value of the decedent‘s life.

There is no special formula under the law to assess the plaintiff‘s damages.

It is your obligation to assess what is fair, adequate and just based on the evidence presented to you. You must use your wisdom and judgment to translate into dollars and cents the amount which will fully, fairly, and reasonably compensate the next of kin for the death of the decedent.

160

MICHIGAN

Darren VanPuymbrouck

Deborah Bone

Schiff Hardin LLP


(312) 258-5500



Michigan law does not limit the amount of compensation available for economic damages. See M

ICH

.

C

OMP

.

L

AWS

§ 600.2946a. Available economic damages include compensation for:

1. Medical Expenses . Reasonable expenses of necessary medical care, treatment, and services are recoverable. See Foley v. Detroit & M. R.

Co , 159 N.W. 506, 507 (Mich. 1916).

2. Loss of Earning Capacity.

Loss of earning capacity after the plaintiff has reached the age of eighteen is a recoverable loss. See Gumienny v.

Hess , 280 N.W. 809, 810 (Mich. 1938).

3. Economic Loss of Parent.

Parents of an injured minor can bring suit to recover parents‘ loss of services and expenses incurred. See

Gumienny v. Hess , 280 N.W. 809, 810 (Mich. 1938).

II.


Michigan law limits compensation for noneconomic losses in a products liability action to $280,000. M

ICH

.

C

OMP

.

L

AWS

§ 600.2946a (2011). If the defect in the product caused permanent loss of a vital bodily function, however, the limitation on damages for noneconomic loss rises to

$500,000.00. Id.

This limitation does not apply where the trier of fact determines by a preponderance of the evidence that the loss was the result of the defendant‘s gross negligence.

Id.

Available noneconomic damages include compensation for:

1. Mental and Physical Pain and Suffering.

Past and future mental and physical pain and suffering is a recoverable loss. McDuffie v. Root , 1

N.W.2d 544, 548 (Mich. 1942). Shame, mortification, mental pain, anxiety, and humiliation related to the physical injury are also recoverable. Beath v. Rapid R. Co , 78 N.W. 537, 540 (Mich. 1899);

Grenawalt v. Nyphuis , 55 N.W.2d 736, 741 (Mich. 1952).

161

2. Disability and Disfigurement.

Minor‘s disability and disfigurement is a recoverable loss. See Brininstool v. Michigan United R. Co , 121

N.W. 728, 731 (Mich. 1909).

3. Punitive and/or Exemplary Damages . Michigan does not permit punitive damages, but does permit exemplary damages as compensation for mental suffering consisting of a sense of insult, indignity, humiliation, or injury to feelings. Gregory v. Cincinnati

Inc.

, 538 N.W.2d 325 (Mich. 1995); Yamaha Motor Corp. v. Tri-City

Motors , 429 N.W.2d 871 (Mich. Ct. App. 1988). In order to award exemplary damages, the trier of fact must find the defendant‘s conduct to be malicious or so willful and wanton as to demonstrate a reckless disregard of plaintiff's rights; negligence is not sufficient to recover exemplary damages. See Veselenak v. Smith , 327 N.W.2d 261, 265

(Mich. 1982).

III. Model Jury Instructions: a. Measure of Damages – Personal and Property M Civ JI 50.01.

If you decide that the plaintiff is entitled to damages, it is your duty to determine the amount of money which reasonably, fairly and adequately compensates [him / her] for each of the elements of damage which you decide has resulted from the [negligence / professional negligence or malpractice] of the defendant, taking into account the nature and extent of the injury.

You should include each of the following elements of damage which you decide has been sustained by the plaintiff to the present time:

[Here insert the appropriate elements of damage, such as: M Civ JI

50.02 Pain and Suffering, Etc.; M Civ JI 50.03 Disability and

Disfigurement; M Civ JI 50.04 Aggravation of Preexisting Ailment or Condition]

You should also include each of the following elements of damage which you decide plaintiff is reasonably certain to sustain in the future:

[Reinsert applicable elements of damages as specified above.]

If any element of damage is of a continuing nature, you shall decide how long it may continue. *(If an element of damage is

162

permanent in nature, then you shall decide how long the plaintiff is likely to live.)

Which, if any, of these elements of damage has been proved is for you to decide based upon evidence and not upon speculation, guess or conjecture. The amount of money to be awarded for certain of these elements of damage cannot be proved in a precise dollar amount. The law leaves such amount to your sound judgment.

Your verdict must be solely to compensate plaintiff for [his / her] damages, and not to punish the defendant. b. Element of Damage – Pain and Suffering, Etc. M Civ JI

50.02

… the [Insert applicable element(s).] *(physical pain and suffering) *(mental anguish) *(fright and shock) *(denial of social pleasure and enjoyments) *(embarrassment, humiliation or mortification) c. Element of Damage – Disability and Disfigurement M Civ

JI 50.03.

… the *(disability including the loss or impairment of [Describe.])

*(and the) *(disfigurement of [Describe.]) d. Element of Damage – Aggravation of Preexisting Ailment

or Condition M Civ JI 50.04.

… the *(increase in [Describe.] arising from aggravation of a preexisting ailment or condition) e. Element of Damage – Medical Expenses M Civ JI 50.05.

… the *(reasonable expenses of necessary medical care, treatment and services) f. Element of Damage – Loss of Future Earning Capacity –

Unemancipated Minor Plaintiff. M Civ JI 50.07.

… the *(loss of earning capacity after the plaintiff has reached the age of eighteen)

Who ―owns‖ the right to sue for medical expenses? Parent or child? If the parent, does that end at the age of majority when it becomes the child’s claim?

163

Under Michigan common law, parents of an injured minor have the right to recover the loss of services and expenses incurred as a result of the minor‘s injury. See Gumienny v. Hess , 280 N.W. 809, 810 (Mich. 1938).

If the minor‘s injury involved an automobile accident, however, the minor may have a right of recovery arising from the Michigan No-Fault Act which provides that ―personal protection insurance benefits are payable to or for the benefit of an injured person.‖ M ICH .

C OMP .

L AWS § 500.3112. The statute confers a cause of action on the injured party to collect medical and other expenses incurred as a result of the injury even in instances where the minor‘s parent or guardian was legally responsible for the expenses. Geiger v. Detroit

Auto. Inter-Ins. Exch.

, 318 N.W.2d 833, 835 (Mich. Ct. App. 1982).



Under Michigan law, the deceased minor‘s parents, grandparents, or siblings may bring a wrongful death claim for damages suffered. M

ICH

.

C

OMP

.

L

AWS

§ 600.2922(3). In the event none of these persons survive the deceased minor, then any person to whom the estate of the deceased would pass under the laws of intestate succession may bring suit. Id.



1. Medical and Burial Expenses . Michigan statute provides for the compensation of medical, funeral, and burial expenses. M

ICH

.

C

OMP

.

L

AWS

§ 600.2922(6).

2. Loss of Support of Services . Michigan statute provides for compensation the loss of financial support and services of the minor, when applicable. Id.

; Rohm v. Stroud , 194 N.W.2d 307, 309 (Mich.

1972) (―The value to the parent of the services of a minor child is at least as great as the amount expended by the parent on the child's support, maintenance, and education.‖).


In wrongful death suits arising from a products liability action, the amount of damages for noneconomic losses is limited to $500,000.00. M

ICH

.

C OMP .

L AWS § 600.2946a. This limitation does not apply where the trier of fact determines by a preponderance of the evidence that the loss was the

164

result of the defendant‘s gross negligence.

Id.

Available noneconomic damages include compensation for:

1. Pain and Suffering . Michigan statute provides for the compensation of pain and suffering undergone by the deceased minor, while conscious, during the period between the injury and death. Id.

§

600.2922(6).

2. Loss of Society and Companionship . Michigan statute provides for the compensation for the loss of the society and companionship of the minor. Id. In order to award compensation for the loss of society and companionship, the claimant must show a family relationship from which damages for the loss of the child‘s society and companionship could result. McTaggart v. Lindsey , 509 N.W.2d 881, 884 (Mich. Ct.

App. 1993).

3. Punitive and/or Exemplary Damages . Michigan does not permit the award of punitive or exemplary damages in wrongful death suits.

Gregory v. Cincinnati Inc.

, 538 N.W.2d 325 (Mich. 1995); Fellows v.

Superior Products Co., 506 N.W.2d 534, 536 (Mich. Ct. App. 1993).


Wrongful Death – Damages M Civ JI 45.02.

If you decide the plaintiff is entitled to damages, you shall give such amount as you decide to be fair and just, under all the circumstances, to those persons represented in this case. Such damages may include the following items, to the extent you find they have been proved by the evidence:

1. *(reasonable medical, hospital, funeral and burial expenses)

2. *(reasonable compensation for the pain and suffering undergone by [name of decedent] while [he / she] was conscious during the time between [his / her] injury and

[his / her] death)

3. *(losses suffered by [name of next of kin] as a result of

[name of decedent]‘s death, including: a. loss of financial support;

165

b. loss of service, which shall be at least as great as the amount spent by the parent on the child‘s support, maintenance and education; c. loss of gifts or other valuable gratuities; d. loss of parental training and guidance; e. loss of society and companionship; f. [other] g. [other]

Which, if any, of these elements of damage has been proved is for you to decide, based upon evidence and not upon speculation, guess, or conjecture. The amount of money to be awarded for certain of these elements of damage cannot be proved in a precise dollar amount. The law leaves such amount to your sound judgment. Your verdict must be solely to compensate for the damages and not to punish the defendant.

166

MINNESOTA

John S. Monical

Christina Mermigas



(312) 372-1947



1.

Medical Expenses.

Costs of medical supplies, hospital services, and health care services necessary in caring for the minor are recoverable.

CIVJIG 91.55, 91.65; see Kwapien v. Starr , 400 N.W.2d 179 (Minn.

Ct. App. 1987).

2.

Child’s Lost Services and Earnings. The loss of the minor‘s services up to the date of trial and the loss of future services reasonably certain to be lost up to the age of 18 are recoverable by the parent. CIVJIG

91.55. The loss of the child‘s working time and the reduction of the child‘s future earnings capacity reasonably certain to be lost up to the age of 18 are recoverable by the parent and after age 18 by the minor.

CIVJIG 91.55, CIVJIG 91.60; Eklund v. Evans , 300 N.W. 617 (Minn.

1941). This is an element of general, not specific, damages, which does not require specific proof of actual earnings either before or after the injury. Kwapien v. Starr , 400 N.W.2d 179 (Minn. Ct. App. 1987).

Recovery for future loss of earning capacity is based on factors including the plaintiff‘s age, health, skill, training, experience, work habits, length of loss of earnings capacity, and years of earnings compared to life expectancy. CIVJIG 91.60; Sylvester v. Gleason , 371

N.W.2d 573 (Minn. Ct. App. 1985).


1.

Disability, Disfigurement, and Embarrassment.

Past and future damages for disability, disfigurement, and embarrassment are recoverable. CIVJIG 91.10, 91.25. These damages are taken under the consideration of the inflationary trend of the economy. Dawydowycz v.

Quady , 220 N.W.2d 478 (Minn. 1974). The jury should consider the nature, extent, and severity of the injuries in determining the amount of disfigurement damages, and the Minnesota Supreme Court has not and cannot set a limit to these damages. Id.

2.

Loss of Life Expectancy . Loss of life expectancy and the effect that the injury has had on the minor child‘s enjoyment of amenities of life

167

are recoverable. Dawydowycz v. Quady , 220 N.W.2d 478 (Minn.

1974).

3.

Pain and Suffering . Past and future (if reasonably certain) physical and mental pains are recoverable. CIVJIG 91.10, 91.25; Iacona v.

Schrupp , 521 N.W.2d 70 (Minn. Ct. App. 1994). Per diem arguments may be misleading and, therefore, may not be used as a yardstick for determining the reasonableness of the amount awarded for damages, but the rule does not bar the use of the mathematical formula for purely illustrative purposes. Christy v. Saliterman, 179 N.W.2d 288,

304 (Minn. 1970) ; Boutang v. Twin City Motor Bus Co., 80 N.W.2d

30, 39 (Minn. 1956) .

However, the per diem argument is proscribed in cases involving damage awards for pain and suffering and for generally non-quantifiable compensatory awards. Busch v. Busch

Constr., Inc.

, 262 N.W.2d 377, 399 (Minn. 1977).

4.

Emotional Distress. Past and future emotional distress from bodily harm is recoverable. CIVJIG 91.10, 91.25.

5.


In cases in which the conduct of the person found to be negligent was due to intentional harm or such outrageous behavior, the judge or jury can award punitive damages. Punitive damages shall be allowed in civil actions only upon clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others. M INN .

S TAT .

A NN . § 549.20

(2012).

III. Model Jury Instructions: a.

Compensatory Damages - Personal and Property Damages

– Definition

CIVJIG 90.10

Question(s) __, __, and __ in the verdict form (is) (are) the damages question(s).

Answer each question independently

[You must answer these questions regardless of your answers to the other questions on the verdict form. Your verdict is not complete until these damages questions are answered.]

When you decide damages, do not consider the possible effect of your answers to other questions. b.

Compensatory Damages - Personal and Property Damages

- General Instruction Deciding the Amount of Damages

CIVJIG 90.20

168

In answering question(s) __, __, __, and __, you are to decide the amount of money that will fairly and adequately compensate

(name) for (his) (her) past and future (injury) (harm) .

Items to include

You may award damages for the following items if the evidence shows they resulted from the (accident) (collision) (event) :

[Insert the elements from CIVJIG 91.10–91.35, 91.50–91.65,

91.75, and 92.10, as appropriate to the case.]

[No consideration of other sources of payment. Do not consider whether (plaintiff) has received or may receive payment from other sources.] c.

Damages—Burden of Proof - Definition of ―burden of proof‖ CIVJIG 90.15

A party asking for damages must prove the nature, extent, duration, and consequences of his or her (injury) (harm) .

You must not decide damages based on speculation or guess. d.

Adjustment of Future Damages - Present Cash Value -

Present cash value of damages CIVJIG 90.25

After finding the dollar value of future damages for:

[a Loss of future earning capacity]

[b Future health care expenses], you must then find the present cash value of this amount, and award only the present cash value. This is called ―adjusting,‖ and is based on inflation and the fact that invested money earns interest.

Steps in adjusting

The following steps are involved in adjusting:

1. Decide if (name) is entitled to damages for:

[a Lost/reduced future earning capacity]

[b Future health care expenses].

2. If so, decide the amount of these future damages in today‘s dollars. In doing this, you may also consider whether inflation will increase the:

[a Value of future earning capacity]

[b Future health care expenses].

3. Decide for how long in the future (name) will:

[a Experience lost/reduced future earning capacity]

169

[b Incur future health care expenses].

4. Decide how much money (name) needs if (he) (she) invests it now through the time in the future when (he)

(she) will need it for:

[a. Lost or reduced future earning capacity]

[b. Future health care expenses].

Damages that must be adjusted

You must adjust damages only for:

[1. Loss/reduction of future earning capacity]

[2. Future health care expenses].

Damages not to be adjusted

You must not adjust damages for:

1. Future pain,

2. Future disability,

3. Future emotional distress,

4. Any past damages. e.

Items of Personal Damage - Past Damages - Bodily and

Mental Harm - Past damages for bodily and mental harm

CIVJIG 91.10

Items to include for past damages for bodily and mental harm:

1. Pain

2. Disability

3. [Disfigurement]

4. [Embarrassment]

5. Emotional distress

(name) has experienced up to the time of your verdict.

It is difficult to put an exact value on these items that are not necessarily decided on a daily or hourly basis.

Factors to consider. You should consider:

1. The type, extent, and severity of the injuries

2. How painful the injuries were

3. The treatment and pain involved in that treatment

4. The length of time the injury or harm lasted

5. Any other factors you think are relevant.

[No consideration of other sources of payment. Do not consider whether (plaintiff) has received or may receive payment from other sources.]

170

f.

Items of Personal Damage - Past damages for health care expenses CIVJIG 91.15

Past damages for health care expenses may include:

1. Medical supplies

2. Hospitalization

3. Health care services of every kind necessary for treatment up to the time of your verdict.

[Include the reasonable value of the services of attendants if needed for name)

‘s care.]

[Determine the amount for diagnostic x-rays separately.] g.

Items of Personal Damage - Past damages for loss of earnings CIVJIG 91.20

Past damages for loss of earnings may include:

1. Earnings

2. Salary

3. Value of working time lost as a result of the injury, from the time of injury to date.

[Do not consider the fact that (name) actually received (his) (her) salary for all or part of the time in deciding the value of (name)

‘s lost working time.] h.

Items of Personal Damage - Future damages for bodily and mental harm CIVJIG 91.25

Future damages for bodily and mental harm may include:

1. Pain

2. Disability

[3. Disfigurement]

[4. Embarrassment]

5. Emotional distress

(name) is reasonably certain to experience in the future.

It is difficult to put an exact value on these items that are not necessarily decided on a daily or hourly basis.


1. The type, extent, and severity of the injuries

2. How painful the injuries are

3. The treatment and pain involved in that treatment

4. The length of time the injury or harm is likely to last

5. Any other factors you think are relevant.

171

i.

Items of Personal Damage - Parent’s Damages for Injury to

Child CIVJIG 91.55

When a child is injured, the child has a claim for (his) (her)

(injuries) (harm). (His) (her) (father) (mother) may also have a claim.

Parents‘ damages may include:

1. The reasonable value of medical supplies, hospital services, and health care services necessary in caring for the child

2. The loss of (child)

‘s services the

(father) (mother) would have received up to the date of trial

3. The value of the child‘s working time lost as a result of the injury from the time of injury to date

[Do not consider the fact that (child) actually received his or her salary for all or part of the time in deciding lost value of the earning capacity.]

4. The value of the services the (father) (mother) is reasonably certain to lose in the future until (child) reaches the age of 18 years

5. The value of the loss or reduction of (child)

‘s future earning capacity the (father) (mother) is reasonably certain to experience until (child) reaches the age of 18 years.

Parent‘s future damages for the loss or reduction of a child‘s earning capacity. In deciding the amount of future damages for the loss or reduction of the child‘s future earning capacity until age 18, you should consider:

1. Age

2. Health

3. Skill

4. Training

5. Experience

6. Work habits

7. Length of loss of earning capacity (temporary or permanent) .

*Note on Use If the child reached the age of 18 years or was emancipated before trial, recovery is limited to that date. If the evidence shows the child has been emancipated or could be emancipated before reaching the age of 18 years, this factor must be added to the instruction in limiting the period of time for which the parent can recover future damages. An instruction on emancipation of a minor should also be given if the evidence raises a fact question on this issue.

172

See Authorities to CIVJIG 91.20, concerning loss of earnings,

CIVJIG 91.30, dealing with future medical expenses, and CIVJIG

91.35, dealing with loss of future earning capacity. j.

Items of Personal Damage - Child’s damages for loss of future earning capacity CIVJIG 91.60

You may consider the value of the total or partial future earning capacity of (name of child) that (he) (she) is reasonably certain to lose after (he) (she) reaches age 18.

In deciding the amount of future damages, you should consider:

1. Age

2. Health

3. Skill

4. Training

5. Experience

6. Work habits

7. Length of loss of earning capacity (temporary or permanent)

8. Years of earning of (name of child) compared to (his)

(her) life expectancy.

*Note on Use If the evidence shows that the child has been emancipated or is likely to be emancipated before the age of 18 years, this factor must be added to the instruction in fixing the beginning of the period of the loss or impairment of future earning capacity. An instruction on emancipation of a minor should also be given if the evidence raises a fact question as to this issue. k.

Items of Personal Damage - Child’s damages for health care expenses CIVJIG 91.65

Damages for health care expenses may include:

1. Medical supplies

2. Hospitalization

3. Health care services of every kind.

These must be reasonable and necessary for treatment in the future.

[Include the reasonable value of the services of attendants if needed for (name of child)

‘s care in the future.]

*Note on Use If the child reached the age of 18 years or was emancipated before trial, recovery is for the period from that date.

173


The parent has the right to recover past and future damages for medical expenses of an injured minor up to the age of 18. CIVJIG 91.55. The minor has the right to recover medical expenses beyond the age of 18. CIVJIG 91.65.

When the suit is only brought on behalf of the child, no damages are recoverable except those suffered by the child. To such extent, the minor has no right to recover medical expenses or lost time for his or her own injuries. Instead, the child‘s parent has the right to recover those medical expenses during the minority of the child. Eichten v. Central Minn. Co-op Power Ass’n , 28 N.W.2d 862 (Minn.

1947); Dentinger v. Uleberg , 213 N.W. 377 (Minn. 1927). Once a suit is brought on behalf of the minor child, the judgment is a bar to subsequent actions by the child, his guardian, general or ad litem, or by himself after majority. Lathrop v.

Schutte , 63 N.W. 493 (Minn. 1895).



Under Minnesota law, when death is caused by a wrongful act or omission of another, the trustee appointed pursuant to the statute to prosecute the action may maintain an action for the death if the decedent might have maintained an action, had the decedent lived, for an injury caused by the wrongful act or omission. Minn. Stat. § 573.02. Once the trustee is appointed, the trustee has the exclusive right to maintain the action or to negotiate a settlement for the benefit of the next of kin. In re Appointment of Trustee for Heirs of Bodeker , 661 N.W.2d

271 (Minn. Ct. App. 2003). If an action for the injury was commenced by the decedent and not finalized while the decedent was living, the action may be continued by the trustee for recovery of damages for the exclusive benefit of the next of kin and converted to a wrongful death claim on their behalf. Minn. Stat. §

573.01. In re Appointment of Trustee for Heirs of Bodeker , 661 N.W.2d 271

(Minn. Ct. App. 2003).


The amount recoverable in wrongful death suits is the amount the jury deems fair and just in reference to the pecuniary loss resulting from the death and that is of the exclusive benefit of the next of kin or surviving spouse, proportionate to the pecuniary loss severally suffered by death. M

INN

.

S

TAT

. §

573.02 (1).


1.

Money Value of Damages or Pecuniary Loss. Although the Minnesota wrongful death act provides for the recovery of ―pecuniary loss‖,

174

Minnesota does not use that term in its pattern jury instructions. CIVJIG

91.75; Muehlhauser v. Erickson, 621 N.W.2d 24 (Minn.Ct.App. 2000).

The jury instruction refers instead to the ―money that will fairly and adequately compensate for the losses suffered as the result of this death,‖ and lists various factors to be considered in determining the amount. There is a presumption that the heirs or next of kin have suffered pecuniary loss that has monetary value. Ferguson v. Orr , 427 N.W.2d 732 (Minn. Ct.

App. 1988).

2.


―Reasonable expenses for support due to the last sickness, including necessary medical and hospital expenses incurred after and as a result of the injuries causing death‖ are specifically included in the factors to consider for calculating pecuniary loss.

CIVJIG 91.75.

3.

Funeral Expenses.

Funeral and burial expenses are specifically included in the factors to consider for calculating pecuniary loss.

CIVJIG 91.75.

Along with support/aid that the decedent would have provided, funeral expenses are the first damages deducted and paid to the minor child under monetary judgments of a wrongful death claim. Minn. Stat. § 573.02.

4.

Loss of Past and Future Earnings . The factors considered in determining pecuniary loss specifically include past earnings and likely future earnings capacity, as well as past contributions, life expectancy, health, age, habits, talents and success, occupation, and personal living expenses. CIVJIG 91.75; see Cummins v. Rachner , 257 N.W.2d 808

(Minn. 1977) (jury should have considered deceased‘s contributions in past; life expectancy at time of death; health, age, habits, talents, and success; occupation; personal living expenses, obligation to support children and likelihood of fulfilling that obligation if it were necessary; counsel and guidance she would have given to husband; and advice, comfort, assistance, and protection she would have given her children if she had lived).

5.

Special Damages.

In addition to the above, ‗special damages‘ arising out of the injury causing death are recoverable if the minor could have pursued these claims. Special damages have been defined by the

Minnesota courts to mean damages ―which are the natural, but not the necessary and inevitable result of the wrongful act.‖ CIVJIG 90.10; See

Ray v. Miller Meester Adver., Inc.

, 684 N.W.2d 404 (Minn. 2004), citing

Phelps v. Commonwealth Land Title Insurance Co.

, 537 N.W.2d 271

(Minn. 1995).

175

Non-economic Damages :

1.

Loss of Support and Companionship.

―Counsel, guidance, and aid‖ and

―advice, comfort, assistance, companionship, and protection‖ that would have been given if the minor had lived are included within the factors considered in calculating pecuniary damages. CIVJIG 91.75; Youngquist v. Western Nat’l Mut. Ins. Co.

, 716 N.W.2d 383 (Minn. Ct. App. 2006);

Martz v. Revier , 170 N.W.2d 83 (Minn. 1969).

2.


In appropriate cases, punitive damages are available in wrongful death cases. M

INN

.

S

TAT

. § 573.02.


Measure of Damages - Wrongful Death - Money value of damages CIVJIG 91.75

When you consider damages for (claimant)(s) , determine an amount of money that will fairly and adequately compensate

(claimant)(s) for the losses (he) (she) (they) suffered as the result of this death.

You should consider what (name of deceased) would have provided to the (claimant)(s) if (he) (she) (they) had lived.


1. (His) (Her) contributions in the past

2. (His) (Her) life expectancy at the time of (his) (her) death

3. (His) (Her) health, age, habits, talents, and success

4. (His) (Her) occupation

5. (His) (Her) past earnings

6. (His) (Her) likely future earning capacity and prospects of bettering (himself) (herself) had (he) (she) lived

7. (His) (Her) personal living expenses (cost of supporting the child)

8. (His) (Her) legal obligation to support the (surviving spouse) (next of kin) and the likelihood that (he) (she) would have fulfilled that obligation

9. All reasonable expenses incurred for a funeral and burial

(etc.), and all reasonable expenses for support due to (his)

(her) last sickness, including necessary medical and hospital expenses incurred after and as a result of the injuries causing death

176

10. [The probability of (name of decedent)

‘s paying the debt owed by ________ to ________]

11. The counsel, guidance, and aid (he) (she) would have given (claimant)(s)

12. [The advice, comfort, assistance, companionship, and protection that (name of decedent) would have given if (he)

(she) had lived].

Lost time together

Decide the length of time those related might be expected to survive together. You should compare the life expectancy of (name of decedent) with the life expectancy of each claimant.

Take into account only the amount of time the two being compared would be expected to survive together.

Base your money damages for each claimant on the shorter life expectancy of the two being compared.

Items to exclude

Do not include amounts for:

1. [Punishing the defendant]

2. [Grief or emotional distress of the surviving spouse and the next of kin], or

3. [For the pain and suffering of (decedent) before (his)

(her) death].

Factors to exclude

Do not be influenced by the fact that:

1. [The (surviving spouse) (next of kin) (may have received)

(may get) money or other property from (name)‘s estate], or

2. [The (surviving spouse) (next of kin) (may collect) (has collected) insurance or workers‘ compensation benefits because of (name)‘s death], or

3. [The surviving spouse has remarried], or

4. [The minor children have been emancipated], or

5. [There is no legal obligation to support the next of kin].

177

You must determine the total amount of money that will fairly and adequately compensate the (claimant)(s) for the damages suffered as the result of this death.

[I will divide the damages among the (claimants) .] b.

Life Expectancy Tables - Calculate life expectancy CIVJIG

91.85

According to life expectancy tables, the future life expectancy of a

_____-year-old (male) (female) is _____ years. This means (he)

(she) is expected to live to age _____.

Use this figure to help you determine the probable life expectancy of (name) . It is not conclusive proof of (his) (her) life expectancy, and you are not bound by it. It is only an estimate based on average experience.

You may find that (name) (might live) (would have lived) a longer or shorter period than that given in these tables.

Consider this figure along with evidence of the health, physical condition, habits, occupation, and surroundings of (name) and other circumstances that might affect (his) (her) life expectancy. c.

Punitive Damages - Definition of ―punitive damages‖

CIVJIG 94.10

When there is clear and convincing evidence that (defendant) acted with deliberate disregard for the rights or safety of others, you can award (plaintiff) additional damages. These ―punitive damages‖ are intended to punish (defendant) and discourage others from behaving in a similar way. [Punitive damages may not be used to punish the defendant for injury or harm to persons other than the plaintiff in this case, however.]

Clear and convincing evidence

The evidence must convince you that (defendant) acted with deliberate disregard for the rights or safety of others.

You must have a firm belief, or be convinced there is a high probability, that (defendant) acted this way.

178

Deliberate disregard

―Deliberate disregard‖ means that (defendant):

1. Knew about facts or intentionally ignored facts that created a high probability of injury to the rights or safety of others, and

2. Deliberately acted a. with conscious or intentional disregard, or b. with indifference to the high probability of injury to the rights or safety of others.

Factors to consider for punitive damages

If you decide to award punitive damages, consider, among other things, the following factors:

[1. The seriousness of the hazard to the public that may have been or was caused by (defendant)‘s misconduct]

[You may not consider any harm to persons who are not parties to this case that was the result of lawful conduct in another state]

[2. The profit (defendant) made as a result of the misconduct]

[3. The length of time of the misconduct and if (defendant) it]

[4. The amount (defendant) knew about the hazard and of its danger]

[5. The attitude and conduct of (defendant) when the misconduct was discovered]

[6. The number and level of employees involved in causing or hiding the misconduct]

[7. The financial state of (defendant)]

[8. The total effect of other punishment likely to be imposed on (defendant) as a result of the misconduct. This includes compensatory and punitive damage awards to

(plaintiff) and other persons]

[9. The severity of any criminal penalty (defendant) may get].

*Note on Use This instruction should only be given once it has been decided by the judge or the jury that plaintiff is entitled to compensatory damages.

179

MISSISSIPPI

Sean W. Shirley

Mark E. Bond

Balch & Bingham LLP

Birmingham, Alabama

(205) 251-8100



1. Medical and Other Related Expenses . Medical, or other related expenses incurred as a result of such wrongful or negligent act or omission or breach of warranty are recoverable. Medical expenses include the cost of medicine, cost of initial medical treatment, cost of hospitalization, cost of surgical procedures, cost of follow-up medical treatment, and the cost of future medical expenses. See, e.g., Lane v.

Webb , 220 So. 2d 281, 285-86 (Miss. 1969).

2. Loss of Wages or Wage-Earning Capacity . Loss of Wages or

Wage-Earning Capacity is a recoverable expense. See Woods v.

Nichols , 416 So. 2d 659, 671 (Miss. 1982).



1. Hedonic Damages . In any civil action for personal injury there may be a recovery for pain and suffering and loss of enjoyment of life.

However, there shall be no recovery for loss of enjoyment of life as a separate element of damages apart from pain and suffering damages, and there shall be no instruction given to the jury which separates loss of enjoyment of life from pain and suffering. The determination of the existence and extent of recovery for pain and suffering and loss of enjoyment of life shall be a question for the finder of fact, subject to appellate review, and the monetary value of the pain and suffering and loss of enjoyment of life shall not be made the subject of expert testimony. Miss. Code Ann. § 11-1-69.

2. Disfigurement . The right to recovery for disfigurement is settled under Mississippi Law. See Vascoe v. Ford , 54 So. 2d 541, 542 (Miss.

1951).

3. Loss of Use of Limb . The loss of use of a limb is a recoverable expense. See Woods v. Nichols , 416 So. 2d 659, 671 (Miss. 1982).

180

4. Punitive Damages . Miss. Code Ann. § 11-1-65. Punitive damages must be shown by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidence willful, wanton or reckless disregard for the safety of others, or committed actual fraud. Miss. Code Ann. §

11-1-65(1)(a). Furthermore, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.

Miss. Code Ann. § 11-1-65(1)(b).

Before entering judgment for an award of punitive damages the trial court shall ascertain that the award is reasonable in its amount and rationally related to the purpose to punish the actions of the injuring party considering the following factors: (1) whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant‘s conduct as well as the harm that actually occurred; (2) the degree of reprehensibility of the defendant‘s conduct, the duration of that conduct, the defendant‘s awareness, any concealment, and the existence or frequency of similar past conduct; (3) the financial condition and net worth of the defendant; and (4) in mitigation, the imposition of criminal sanctions on the defendant for its conduct and the existence of other civil awards against the defendant for the same conduct. Miss. Code Ann. § 11-1-

65(1)(f). In any civil action where entitlement to punitive damages is established, no award of punitive damages shall exceed the statutory caps provided for in Miss. Code Ann. § 11-1-65(3).

5. Emotional Distress . If there is outrageous conduct, no injury is required for recovery for intentional infliction of emotional distress or mental anguish. One who claims emotional distress need only show that the emotional trauma claimed was a reasonably foreseeable consequence of the negligent or intentional act of another. If the conduct is not malicious, intentional or outrageous, there must be some sort of demonstrative harm, and said harm must have been reasonably foreseeable by the defendant. See Adams v. U.S. Homecrafters, Inc .,

744 So. 2d 736, 743-44 (Miss. 1999).

III. Jury Instructions a. Negligence – General Instruction – Compensatory or Actual. Miss.

Civ. Jury Instruction Companion Handbook § 7:5, pg. 426 (2011-2012).

―You are instructed that, should you find for the plaintiff in this case, you must confine your verdict to reasonable compensation for the injuries actually sustained, if any, by the plaintiff as a result of _______ (specify wrongful act or conduct in question). Plaintiff‘s reasonable compensation,

181

if any, does not include attorney‘s fees, nor does it allow a monetary award which constitutes a penalty against the defendant, nor are you limited by the estimates of damages made by the attorneys representing the parties to this lawsuit. The defendant is not responsible for any physical or mental problem that the plaintiff may have had prior to

_______ (specify wrongful act or conduct in question), nor any physical or mental problem that is not related to an injury the plaintiff might have suffered as a result of _______ (specify wrongful act or conduct in question). b. Negligence – Professional Malpractice. Miss. Civ. Jury Instruction

Companion Handbook § 6:6 – Instruction P-5. pg. 328-329 (2011-2012).

―If you find by a preponderance of the evidence in this case and under instructions of law previously given to you that Defendants [hospital or organization], collectively or individually are liable for the injuries suffered by [Plaintiff] then you must return a verdict in favor of the

Plaintiff in the amount which will reasonably compensate him for his damages.

These damages are called compensatory damages and are awarded for the purpose of making [Plaintiff] whole again in so far as a money verdict can accomplish that purpose.

In determining the amount of damages to be awarded to [Plaintiff] you may consider and award monetary damages for the following:

1.

[Plaintiff‘s] past and future mental and emotional distress;

2.

[Plaintiff‘s] past physical pain and suffering;

3.

[Plaintiff‘s] past medical expenses incurred;

4.

[Plaintiff‘s] loss of enjoyment of life;

5.

[Plaintiff‘s] scarring and physical disfigurement.‖


Mississippi imposes a legal obligation upon both parents to pay for their child‘s reasonable medical expenses.

See McLain v. West Side Bone & Joint Ctr.

,

656 So. 2d 119, 122 (Miss. 1995). Section 41-9-119 of the Mississippi Code of

1972 provides that, ―[p]roof of medical, hospital, and doctor bills were paid or incurred because of any illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable.

A minor child is not legally liable for his or her medical expenses, and recovery for medical expenses associated with a child‘s injury are properly recoverable by his or her parents.

See Cook v. Children’s Med. Group

, 756 So. 2d

734, 740 (Miss. 1999). In the event a minor child has a cause of action for

182

injuries sustained by the negligent or wrongful conduct or another, the parents of the minor child have a derivative claim to recover any medical expenses paid by them on behalf of their minor child. Stated differently, the parent may bring a cause of action individually or as next friend of his or her minor child. See

Clardy v. ATS, Inc. Employee Welfare Benefit Plan , 921 F. Supp. 394, 401 n.5

(N.D. Miss. 1996). Double recovery will not be allowed. Either the parents or the minor child will be allowed to recover medical expenses. See Cook , 756 So.2d at

740.


Survival claims described in Miss. Code Ann. § 11-7-13, the wrongfuldeath statute, are by specific statutory language, limited to damages which a deceased person could have pursued if death had not ensued. Caves v. Yarbrough ,

991 So. 2d 142 (Miss. 2008).


1. Property Damages . Property damages are recoverable. See Miss.

Code Ann. § 11-7-13.

2. Funeral, Medical and Other Related Expenses . Funeral, medical, or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty are recoverable. See Miss. Code Ann. § 11-7-13.

3. Life Expectancy . Present Net Cash Value of the Work Life

Expectancy of the Decedent is recoverable. This figure represents the total earnings the Deceased would have realized throughout his/her lifetime, based on average life expectancy, reduced to present value and reduced further by the amount which the Decedent would have spent on himself/herself.

Goodyear Tire & Rubber Co. v. Kirby , No.

2007-CA-00325-COA, 2009 Miss, App. LEXIS 221 (Miss. Ct. App.

2009).


1. Loss of Society and Companionship . Loss of Society and

Companionship of the Decedent is recoverable.

Goodyear Tire &

Rubber Co. v. Kirby , No. 2007-CA-00325-COA, 2009 Miss, App.

LEXIS 221 (Miss. Ct. App. 2009). The wrongful death beneficiaries are entitled to claim their respective claims for loss of society and companionship. See Bridges v. Enter. Prods. Co ., 551 F. Supp. 2d

549, 558 (S.D. Miss. 2008).

2. Pain and Suffering . Pain and Suffering experienced by the Decedent between the time of injury and his/her subsequent demise is

183

recoverable. Goodyear Tire & Rubber Co. v. Kirby , No. 2007-CA-

00325-COA, 2009 Miss, App. LEXIS 221 (Miss. Ct. App. 2009).

3. Punitive Damages . Miss. Code Ann. § 11-1-65. Punitive damages must be shown by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidence willful, wanton or reckless disregard for the safety of others, or committed actual fraud. Miss. Code Ann. §

11-1-65(1)(a). Furthermore, the trier of fact shall first determine whether compensatory damages are to be awarded and in what amount, before addressing any issues related to punitive damages.

Miss. Code Ann. § 11-1-65(1)(b).

Before entering judgment for an award of punitive damages the trial court shall ascertain that the award is reasonable in its amount and rationally related to the purpose to punish the actions of the injuring party considering the following factors: (1) whether there is a reasonable relationship between the punitive damage award and the harm likely to result from the defendant‘s conduct as well as the harm that actually occurred; (2) the degree of reprehensibility of the defendant‘s conduct, the duration of that conduct, the defendant‘s awareness, any concealment, and the existence or frequency of similar past conduct; (3) the financial condition and net worth of the defendant; and (4) in mitigation, the imposition of criminal sanctions on the defendant for its conduct and the existence of other civil awards against the defendant for the same conduct. Miss. Code Ann. § 11-1-

65(1(f). In any civil action where entitlement to punitive damages is established, no award of punitive damages shall exceed the statutory caps provided for in Miss. Code Ann. § 11-1-65(3).

5. Loss of Enjoyment of Life . When the Mississippi Legislature enacted, Miss. Code Ann. § 11-1-69(2), the section flatly rejected the awarding of hedonic damages in a wrongful death lawsuit. In any wrongful death action, there shall be no recovery for loss of enjoyment of life caused by the death. Goodyear Tire & Rubber Co. v. Kirby ,

No. 2007-CA-00325-COA, 2009 Miss, App. LEXIS 221 (Miss. Ct.

App. 2009).

6. Emotional Distress . Recovery of emotional distress damages is not permitted under 11-7-13 and damages and awards cannot be enlarged on account of the horror and terrible shock of a tragedy. Bridges v.

Enter. Prods. Co.

, 551 F. Supp. 2d 549 (S.D. Miss. 2008).

184

III.

Jury Instruction:

Wrongful Death. Miss. Civ. Jury Instruction Companion Handbook §

7:3 – Instruction 15(a), pg. 397-98 (2011-2012).

―If you find for the Plaintiff, individually and on behalf of the wrongful death beneficiaries of [the decedent], Deceased, you are instructed that the form of the verdict should be as follows:

‗We the jury find for [Plaintiff], individually and on behalf of the wrongful death beneficiaries of [the decedent], deceased as follows:

1.

$_______ for ambulance, hospital and funeral expenses;

2.

$_______ for past physical pain and suffering, mental anguish and anxiety;

3.

$_______ for net present cash value of the life expectancy of

[the decedent]; and

4.

$_______ for loss of society, companionship and consortium.

$__________ Total of lines 1 through 4.‘

If you find for the [Defendant company], you are instructed that the form of your verdict should be as follows:

‗We the jury find for the [Defendant company].‘‖

185

MISSOURI

Kara T. Stubbs

Jonathan E. Benevides

Baker Sterchi Cowden & Rice, LLC

Kansas City, Missouri

(816) 471-2121



1. Medical and Other Related Expenses. Medical and other related expenses incurred as a result of a wrongful or negligent act are recoverable. See e.g. Sommers v. Hartford Acc. & Indem. Co.

, 277

S.W.2d 645 (Mo.App.1955); Butler v. Metropolitan Street Ry. Co., 93

S.W. 877 (Mo. App. 1906); Beebe v. Kan. City , 17 S.W.2d 608 (Mo.

App. 1929);

2. Loss of Wages or Wage-Earning Capacity. The loss of earning capacity in a minor during minority is a loss to his parents who are entitled to both his services and his earnings. Evans v.

Farmers Elevator Co.

, 147 S.W.2d 593, 601 (Mo.1941); White v.

Ennis Coffee Co., 182 S.W. 775 (Mo. App.1916).

A minor may recover for his/her impairment of earning capacity after attaining majority. Farmers Elevator Co.

, 147 S.W.2d at 601.



In any civil action for personal injury there may be a recovery for pain and suffering and loss of enjoyment of life. See e.g.

Wright v. Long , 954 S.W.2d 470 (Mo. App. W.D.1997); Lopez-

Vizcaino v. Action Bail Bonds, Inc.

3 S.W.3d 891(Mo. App.

W.D.1999).


Missouri‘s medical malpractice statute defines noneconomic damages that are recoverable as damages arising from nonpecuniary harm including, without limitation, pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of capacity to enjoy life, and loss of consortium. RSMo. § 538.205(7).

3. Loss of Use of Limb.

Missouri‘s medical malpractice statute includes physical impairment in its definition of recoverable non-economic damages.

RSMo. § 538.205(7).

4. Punitive Damages. Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or reckless

186

indifference to the rights of others.‖ Burnett v. Griffith , 769 S.W.2d

780, 789 (Mo. banc 1989). It is not the commission of the tort that matters, but the conduct or motive that provides the basis for punitive damages.

Blue v. Harrah’s North Kansas City, LLC

, 170 S.W. 3d 466,

477 (Mo. App. W.D. 2005) (citing Fabricor, Inc. v. E.I. DuPont De

Nemours & Co.

, 24 S.W.3d 82, 97 (Mo. App. W.D.2000)). Punitive damages are so extraordinary and harsh that reckless indifference must be proven by clear and convincing evidence. Id. Thus, to make a submissible case for punitive damages, it must be proven by clear and convincing evidence that the defendant‘s conduct was outrageous because of evil motive or reckless indifference. Lopez-Vizcaino v.

Action Bail Bonds, Inc.

, 3 S.W.3d 891, 893 (Mo.App. W.D.1999)

(citing Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 106 S.Ct. 2505,

91 L.Ed.2d 202 (1986). It should be presumed that a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant‘s culpability, after having paid compensatory damages, is so reprehensible to warrant the imposition of further sanctions to achieve punishment or deterrence.

State Farm Mut. Auto Ins. v. Campbell , 538 U.S. 408, 419 (2003).

5. Emotional Distress.

In Missouri,―[w]here the plaintiff is a direct victim of the defendant's negligence and seeks damages for emotional distress, the plaintiff is required to prove two additional elements: (1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress and (2) the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant.‖

Jarrett v. Jones ,

258 S.W.3d 442, 448 (Mo. banc 2008). ―Under this approach, the plaintiff's threshold burden of proving legal damage would be satisfied upon demonstration of any medically provable mental distress or harm.‖

Bass v. Nooney Co.

, 646 S.W.2d 765, 773 n. 4 (Mo. banc 1983)

(citation omitted). Then the trier of fact applies the severity standard to determine if compensation is warranted.

Id.


M.A.I. 4.01 [2002Revision]. Damages—Personal and Property

If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe plaintiff sustained [and is reasonably certain to sustain in the future] as a direct result of the occurrence mentioned in the evidence. [If you find that plaintiff failed to mitigate damages as submitted in

Instruction Number, in determining plaintiff's total damages you must not include those damages that would not have occurred without such failure.]

187

M.A.I. 21.01[1998 Revision]. Verdict Directing—Actions Against

Health Care Providers—No Comparative Fault.

Your verdict must be for the plaintiff if you believe:

First, defendant (here set out act or omission complained of; e.g., ―failed to set plaintiff's broken leg bones in natural alignment,‖ or ―left a sponge in plaintiff's chest after performing an operation,‖ or ―failed to administer tetanus antitoxin‖), and

Second, defendant was thereby negligent, and

Third, as a direct result of such negligence1 plaintiff sustained damage.

M.A.I. 10.02 [2008 Revision]. Damages—Exemplary—Negligence

Constituting Conscious Disregard for Others

If you find in favor of plaintiff under Instruction Number

____________ (here insert number of plaintiff's verdict directing instruction based on negligence) , and if you believe the conduct of defendant as submitted in Instruction Number ____________ (here insert number of plaintiff's verdict directing instruction based on negligence) showed complete indifference to or conscious disregard for the safety of others, then in addition to any damages to which you may find plaintiff entitled under Instruction Number ____________ (here insert number of plaintiff's damage instruction) you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter defendant and others from like conduct.

[You may consider harm to others in determining whether defendant's conduct showed complete indifference to or conscious disregard for the safety of others. However, in determining the amount of any punitive damage award, you must not include damages for harm to others who are not parties to this case.]

Who "owns" the right to sue for medical expenses? Parent or child? If parent does that end at the age of majority when it becomes child's claim?

In the ordinary case involving injuries to a minor child, the right to recover her medical expense is in the parents, and not in the minor. Evans v. Farmers

Elevator Co., 147 S.W.2d 593, 601 (1941); Clark v. Martin , 650 S.W.2d 699, 701

188

(Mo.App.1983). The reason for this rule is that in the ordinary case the primary obligation to defray all such expense rests upon the parents who are charged with the duty of supplying the child's necessities . Sommers v. Hartford Acc. & Indem.

Co ., 277 S.W.2d 645, 649 (Mo.App.1955); Butler v. Metropolitan Street Ry. Co.

,

117 Mo.App. 354, 93 S.W. 877 (1906). However, the parents' right of action is not for injury to the child, but for injury to the parents by reason of pecuniary loss directly sustained. Sommers , 277 S.W.2d at 649. Consequently, where it is shown that the minor actually paid the medical expenses necessitated by the injuries sustained, he/she has the right to recover such expenses rather than his/her parents. Id.

The parent‘s right to recover for a minor‘s medical expenses ends at the age of majority. See Kramer v. May Lumber Co.

432 S.W.2d 617, 622

(Mo.App. 1968); Wilson v. Lockwood , 711 S.W.2d 545, 554 (Mo. App. W.D.

1986).



1. Funeral, Medical and Other Related Expenses. Funeral, medical, or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission are recoverable. RSMo. §

537.090.

2. Life Expectancy.

―A factor to be considered in evaluating damages under the Wrongful Death Act (RSMo. § 537.090) is potential financial aid by the decedent, which can be shown through evidence of the decedent's health, character, talents, earning capacity, life expectancy, age and habits.‖

Barnett v. La

Societe Anonyme Turbomeca France , 963 S.W.2d 639, 657

(Mo.App.1997).


1. Loss of Society and Companionship. Loss of Companionship of the

Decedent is recoverable. Missouri‘s wrongful death statute specifically provides for recovery of the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death. RSMo. §

537.090; Barnett , 963 S.W.2d at 657.

2.

Pain and Suffering. If the decedent suffered pain from the time and date of his fatal injury and the time and date of his death, an award for such suffering is proper. Coggins v. Laclede Gas Co.

, 37

S.W.3d 335, 343 (Mo. Ct. App. E.D. 2000); RSMo. § 537.090.

189


Damages for aggravating circumstances are akin to punitive damages and are permissible only if the decedent would have been entitled to punitive damages had he lived. Kilmer v.

Browning (App. S.D. 1991) 806 S.W.2d 75. Thus, damages for aggravating circumstances in wrongful death cases are governed by the same standards as punitive damages. Call v. Heard , 925 S.W.2d

840, 851 (Mo. banc 1996). Punitive damages based on aggravating circumstances require that a defendant‘s conduct was outrageous or egregious. The phraseology differs based on the type of case, but all depend on willful wrongdoing or recklessness. Litchfield v. May

Department Stores Co.

, 845 S.W.2d 596, 599 (Mo. App. E.D. 1993).

The Missouri Supreme Court has held that to support a claim for punitive damages based on aggravating circumstances, there "must be clear and convincing evidence in support of the claim." Lopez v.

Three Rivers Electric Cooperative , 26 S.W.3d 151, 160 (Mo. 2000)

(citing Rodriguez v. Suzuki Motor Corp.

, 936 S.W.2d 104, 110 (Mo. banc. 1996)). Specifically, the evidence must show that ―the defendant either knew or had reason to know that there was a high degree of probability that the defendant‘s conduct would result in injury.‖

Coon v. American Compressed Steel, Inc.

, 207 S.W.3d 629,

637 (Mo. App. W.D. 2006). The defendant‘s conduct must be

―tantamount to intentional wrongdoing‖ and indicate a ―complete indifference to or conscious disregard for the safety of others.‖

Id

. ―A person acts with complete indifference to or conscious disregard for the safety of others when, under the circumstances known or knowable to the actor, a reasonable person would realize the conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.'" Joyce v. Nash, 630 S.W.2d 219, 224 (citing Nichols v.

Bresnahan, 212 S.W.2d 570, 573 (Mo. banc 1948) and Smith v.

Courter, 575 S.W.2d 199, 207 (Mo. App. W.D. 1979)).

4. Loss of Enjoyment of Life. Loss of enjoyment of life is not an element of damages for which recovery is provided for under

Missouri‘s wrongful death statute. RSMo § 537.090.

5. Emotional Distress. When a child or parent dies factors such as the physical, emotional and psychological relationship between the parent and the child must be considered. Barnett, 963 S.W.2d at 657.

However, the Wrongful Death Act specifically provides that damages for grief and bereavement are not recoverable. RSMo § 537.090.

190


M.A.I. 5.01 [1996 Revision]. Wrongful Death.

If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe plaintiff [and decedent] sustained [and plaintiff

4

is reasonably certain to sustain in the future] as a direct result of the fatal injury to

(insert name of decedent) .

You must not consider grief or bereavement suffered by reason of the death.

M.A.I. 6.02 [1998 Revision]. Wrongful Death—Aggravating

Circumstances.

Where aggravating circumstances are submitted in a wrongful death case, select an exemplary damage instruction from Chapter 10.00 that fits the theory of the case (e.g., intentional tort, negligence, strict liability, etc.) and substitute the phrase ―damages for aggravating circumstances‖ for the phrase ―punitive damages‖ in the Chapter 10.00 instruction selected.

For example, if a wrongful death case is submitted on a negligence theory,

MAI 10.02 would be selected to submit aggravating circumstances in the following, modified form:

If you find in favor of plaintiff under Instruction Number _______ (here insert number of plaintiff's verdict directing instruction based on negligence) , and if you believe the conduct of defendant as submitted in

Instruction Number _______ (here insert number of plaintiff's verdict directing instruction based on negligence) showed complete indifference to or conscious disregard for the safety of others, then in addition to any damages to which you may find plaintiff entitled under Instruction

Number _______ (here insert number of plaintiff's damage instruction) you may award plaintiff an additional amount as damages for aggravating circumstances in such sum as you believe will serve to punish defendant and to deter defendant and others from like conduct.

The burden of proof instruction (MAI 3.01) and the verdict form from

Chapter 36.00 (MAI 36.11) would be modified similarly by substituting the phrase ―damages for aggravating circumstances‖ for the phrase

―punitive damages.‖

191

MONTANA

Sara R. Sexe

Marra, Sexe, Evenson & Bell, P.C.

Great Falls, Montana

(406) 268-1000

Damages Available in a Minor’s Personal Injury Action

I. Damages Recoverable: statute:

The damages recoverable in a personal injury action are set forth by

1. Compensation for mental and physical pain and suffering.

Mental and emotional suffering and distress includes mental anguish, nervous shock or the like; highly unpleasant mental reactions, such a fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.

2. Loss of earnings to date because of plaintiff‘s inability to pursue an occupation;

3. Loss of future earning capacity. There is no specific formula in

Montana which provides how to calculate this form of damage for either minors or adults.

M C A § 27-1-202. This loss is the permanent diminution of ability to earn money in the future, and the loss is a part of general damages which may be inferred from the nature of the injury without proof of actual lost earnings or income, i.e. the law does not require proof with precise accuracy, but with reasonable estimation. Factors that juries evaluate include proof of the injured person's previous health, age, occupation, skills, education, probable number of productive years remaining, physical and/or mental impairment proximately caused by the injury and similar factors to infer a loss of an established earning capacity. Thomas v. Whiteside ,

148 Mont. 394, 397-98, 421 P.2d 449, 451 (1966).

4. Value of services which plaintiff would normally have performed for himself or others, but can no longer perform. Similarly, there is no particular calculation formula for this type of damage, but sufficient proof must be provided to allow the jury to make a reasonable estimation. See Section III.6. below, citing MPI 2 nd

25.05.

5. The reasonable value of purchases necessitated by the injury;

192

6. The reasonable value of necessary care, treatment and services received to date and probable to be required in the future;

7. Reasonable compensation for impairment of capacity to pursue an established course of life. Please see MPI 2d 25.08, cited in III.9. below. As with other general damages, Montana law does not require proof with precise accuracy, and reasonable estimation is acceptable.

The proof of these type of damages does not need to be premised on physical limitation.

Rasmussen v. Sibert

(1969), 153 Mont. 286, 297,

456 P.2d 835, 841, and Henricksen v. State , 2004 MT 20, 319 Mont.

307, 328, 84 P.3d 38, 54.

This is calculated separately from the loss of one's earning capacity. MCA 27-1-202. Henricksen, at p. 328, 84 P.3d at 54.

8. Punitive damages may be awarded when the defendant has been found guilty of actual fraud or actual malice by clear and convincing evidence.

MCA § 27-1-221.

II. Other Damages Issues

1. Damages for personal injury or wrongful death not to be stated.

In an action for the recovery of money or damages for personal injury or wrongful death, the amount thereof may not be stated in the claim for relief, whether an original claim, counterclaim, cross-claim, or thirdparty claim. MCA § 25-4-311.

2. Damages to be reasonable . Damages must in all cases be reasonable, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages contrary to substantial justice, no more than reasonable damages can be recovered. MCA §

27-1-302.

3. Breach of obligation other than contract . For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. MCA § 27-1-317.

III. Jury Instructions a. MPI 2 nd

25.00.

―If you find for the plaintiff on the question of liability, then you must determine the amount of money which will reasonably and fairly

193

compensate the plaintiff for all loss caused by the defendant(s), regardless of whether such loss could have been anticipated.‖ MPI 2 nd

25.00. b. MPI 2 nd

25.01.

―Your award should include reasonable compensation for any pain and suffering experienced and reasonably probable to be experienced in the future. The law does not set a definite standard by which to calculate compensation for mental and physical pain and suffering. Neither is there any requirement that any witness express an opinion about the amount of compensation that is appropriate for this kind of loss. The law does require, however, that when making an award for pain and suffering, you shall exercise calm and reasonable judgment. The compensation must be just and reasonable.‖ c. MPI 2 nd

25.02.

―Your award should include reasonable compensation for any mental and emotional suffering and distress experienced by plaintiff and reasonably probable to be experienced in the future. Mental and emotional suffering and distress passes under various names, such as mental anguish, nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. The law does not set a definite standard by which to calculate compensation for mental and emotional suffering and distress. Neither is there any requirement that any witness express an opinion about the amount of compensation that is appropriate for this kind of loss. The law does require, however, that when making an award for mental and emotional suffering and distress, you shall exercise calm and reasonable judgment. The compensation must be just and reasonable.‖ d. MPI 2 nd

25.03.

―Your award should include the reasonable value of any loss sustained to date because of plaintiff‘s inability to pursue an occupation. In determining what plaintiff reasonably could have earned had there been no injury, you should consider evidence of plaintiff's earning capacity, past earnings, and the manner in which he/she ordinarily would have occupied his/her time before the injury. A person may have an earning capacity, even though not employed.‖ e. MPI 2 nd

25.04.

―Your award should include reasonable compensation for any loss of future earning capacity. You should consider evidence of plaintiff's health, physical ability, and earning capacity before the accident, and what they are now. You should also consider the nature, extent and duration of the

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injuries. A person may have an earning capacity, even though not employed.‖ f. MPI 2 nd

25.05.

―Your award should include the reasonable value of any service, whether paid or not, which plaintiff would normally have performed for himself/herself or others, but can no longer perform.‖ g. MPI 2 nd

25.06.

―Your award should include the reasonable value of purchases necessitated by the injury.‖ h. MPI 2 nd

25.07.

―Your award should include the reasonable value of necessary care, treatment and services received and those reasonably probable to be required in the future.‖ i. MPI 2 nd

25.08.

―If you find that the plaintiff has been permanently injured or will continue to suffer in the future from his/her injuries, you may award plaintiff reasonable compensation for the impairment, if any, of his/her capacity to pursue an established course of life. This element of compensation is distinct from plaintiff's loss of earning capacity.‖ j. MPI 2 nd

25.09.

―Where a pre-existing condition has been aggravated by the accident, it is your duty, if possible, to apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the accident and compensate the plaintiff for that caused by the accident. But, if you find that the evidence does not permit such an apportionment, then the defendant is liable for the entire disability and pain.‖ k. MPI 2 nd

25.10.

―Any compensation to which plaintiff is entitled should not be reduced simply because plaintiff was more susceptible to injury than a normally healthy person.‖


In Montana, parents are obligated to financially provide for their children.

MCA § 40-6-214. See also Conley v. Walden , 166 Mont. 369, 376, 533 P.2d 955,

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959 (1975). If as part of this obligation, the parents pay for medical expenses of the child incurred as a result of a personal injury claim, the law provides:

In Montana, medical and hospital expenses incurred by the minor before turning 18 would ordinarily be a claim of the parents. Chavez v. U. S.

, 192

F. Supp. 263, 270 (D. Mont. 1961) holds:

―In the case of an injury to a minor, there arise two causes of action, – one in favor of the minor under R.C.M. 1947 § 93-2805, and the other in favor of the parents under § 93-2809. See Burns v.

Eminger , 1929, 84 Mont. 397, 276 P. 437.‖

However, the child may individually pursue his or her claims for all damages through a guardian. MCA § 27-1-511, 512.

A parent‘s right for reimbursement of the medical expenses that parent has paid would survive majority, as the right remains the parents‘. The Montana

Supreme Court held similarly relating to the loss of the child‘s services:

In Automobile Underwriters Inc. v. Camp, 109 Ind.App. 389, 32 N.E.2d

112, 114, the Indiana Appellate Court referred to the Thompson case, supra, and commented thusly: ‗This same authority holds that the wrongful act by which the minor child is injured gives rise to two causes of action, one in favor of the injured child for personal injuries inflicted upon the child and the other in favor of the parent for the loss of services, the one being an action for personal injuries and the other an action for property damage.‘

And again in Rader v. Collins, 130 Ind.App. 227, 161 N.E.2d 381, 383, the Indiana Appellate Court interpreted section 2-217 and stated: ‗This statute gives rise to a new and independent action for damages for the destruction of a property right * * *.‘

Since we agree with the Indiana Appellate Court's interpretation we hold that this action is an action for an injury to a pecuniary interest of the parent, therefore one for an injury to a property right.

LaTray v. Mannix Elec. Co.

, 148 Mont. 303, 305-06, 419 P.2d 744, 745 (1966).

A property right carries a two year statute of limitations. Id.

However, double recovery for the same element of damages may not be awarded. Pence v. Fox , 248 Mont. 521, 527, 813 P.2d 429, 433 (1991). Thus, for those expenses not borne by the parents (for example future medical expenses), the right to claim compensatory damages would be the child‘s.

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Damages Recoverable In A Minor’s Wrongful Death Claim

I. Survival Action

If the decedent survives the injury an appreciable amount of time , the estate can maintain a survivorship action under 27-1-501.

Survival of cause of action or defense - death or disability or transfer of interest.

(1) An action, cause of action, or defense does not abate because of the death or disability of a party or the transfer of any interest therein, but whenever the cause of action or defense arose in favor of such party prior to his death or disability or transfer of interest therein, it survives and may be maintained by his representatives or successors in interest. If the action has not been begun or defense interposed, the action may be begun or defense interposed in the name of his representatives or successors in interest. If the action has been begun or defense interposed, the action or proceeding may be continued as provided in Rule 25, M.R.Civ.P.

The damages available in a survivorship action are:

1. The amount of decedent's lost earnings between the time of injury and the time of death;

2. The present value of decedent's reasonable earnings after the date of death during the remainder of his life expectancy;

3. The medical and funeral expenses which were incurred as a result of the injury and death;

4. Reasonable compensation for decedent's conscious mental and physical pain and suffering in the interval between injury and death

5. Punitive damages may be awarded when the defendant has been found guilty of actual fraud or actual malice by clear and convincing evidence. MCA § 27-1-221.

II. Wrongful Death Action

When injuries to and the death of one person are caused by the wrongful act or neglect of another, the personal representative of the decedent‘s estate may maintain an action for damages against the person causing the death or, if such person be employed by another person who is responsible for his conduct, then also against such other person. MCA § 27-1-513.

If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, an action may be commenced by the deceased‘s representatives after the expiration of that time and within 1 year from death. MCA § 27-2-204.

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In every action under 27-1-513, such damages may be given as under all the circumstances of the may be just. MCA § 27-1-323

The damages available in a wrongful death action are:

1. Loss of consortium, loss of comfort, and society;

2. The reasonable value of the contributions in money that the decedent would have provided for the support, education, training, and care of the heirs during the life expectancies of the decedent and survivors;

3. Reasonable compensation for burial expenses and funeral services for the deceased and any reasonable medical charges which were incurred in connection with the death;

4. Reasonable compensation for grief, sorrow and mental anguish resulting from the death;

5. Punitive damages may be awarded when the defendant has been found guilty of actual fraud or actual malice by clear and convincing evidence. MCA § 27-1-221.

III. Jury Instructions a. MPI2d 25.00.

―If you find for the plaintiff on the question of liability, then you must determine the amount of money which will reasonably and fairly compensate the plaintiff for all loss caused by the defendant(s), regardless of whether such loss could have been anticipated.‖ b. MPI2d 25.20.

― ( ) Your award should include reasonable compensation to

____________ as a result of _______________'s death. You should consider any financial support which _______________ would have received or had a right to receive from the deceased except for the death, and also the value of the society, comfort, guidance, education, care, protection, and companionship which _________ has lost by reason of the death.

You should consider: the age of the deceased and of ______________; the state of health and physical condition of the deceased and

______________ as it existed at the time of the death and prior thereto; their respective expectancies of life as shown by the evidence; the disposition of the deceased whether it was kindly, affectionate or otherwise; whether the deceased showed an inclination to contribute to the support of ________________; the earning capacity of the deceased and the monetary value of the deceased's non-compensated services to the

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household; and such other facts shown by the evidence as throw light upon the value of the support, society, care, comfort, companionship and protection which the ________________ reasonably might have expected to receive from the deceased had __________ lived.]‖ c. MPI2d 25.21.

―( ) Reasonable compensation for burial expenses and funeral services for the deceased and any reasonable medical charges which were incurred in connection with the death. d. MPI2d 25.22.

( ) Reasonable compensation for grief, sorrow and mental anguish resulting from the death.‖ e. MPI2d 25.25.

―( ) Your award should include [reasonable compensation to decedent's estate for:]

[reasonable compensation for damages suffered by decedent if you find death was not instantaneous. Your award should then include reasonable compensation to decedent's estate for:] the amount of decedent's lost earnings between the time of injury and the time of death; the present value of decedent's reasonable earnings after the date of death during the remainder of his/her life expectancy; the medical and funeral expenses which were incurred as a result of the injury and death; reasonable compensation for decedent's conscious mental and physical pain and suffering in the interval between injury and death.‖

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NEBRASKA

J. Crisman Palmer

Rebecca L. Mann

Gunderson, Palmer, Nelson and Ashmore, LLP

Rapid City, South Dakota

(605) 342-1078


I. Damages Recoverable

Injury to a minor results in two causes of action—one on behalf of the minor and the other on behalf of the minor‘s parent. The minor‘s claim is based on damages caused by the personal or bodily injury sustained by the minor, while the claim of a parent is based on the loss of services during minority and the necessary expenses of treatment for the injured child. Macku v. Drackett

Products Co.

, 216 Neb. 176, 179, 343 N.W.2d 58, 60 (1984).

Damages for both injury or death to a person can include economic and noneconomic damages. Neb.Rev.St. § 25-21,185.07. Economic damages mean monetary losses, including, but not limited to, medical expenses, loss of earnings and earning capacity, funeral costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment, and loss of business or employment opportunities. Neb.Rev.St. § 25-21,185.08.

Noneconomic damages mean subjective, nonmonetary losses, including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, and humiliation, but shall not include economic damages. Neb.Rev.St.

§ 25-21,185.08.

II. Particular Damages Issues:


Parent has claim for reasonable value of medical care actually provided and reasonably certain to be provided in the future. A parent is liable for the costs of a child‘s medical care. Goodwin v. Hobza , 762 N.W.2d 623 (Neb. 2009).

2. Loss of earnings or wage-earning capacity.

Parent has claim for loss of services during minority. Macku v. Drackett Products Co.

, 216

Neb. 176, 179, 343 N.W.2d 58, 60 (1984). There is no authority on minor‘s claim for loss of future earnings or wages or how to prove such a claim.

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Including emotional distress and mental suffering. This is the child‘s cause of action, not the parent‘s.

Macku v. Drackett Products Co.

, 216 Neb. 176, 179, 343 N.W.2d 58, 60

(1984).

4. Punitive Damages. Punitive damages generally are not available in civil cases in Nebraska. Miller v. Kingsley , 194 Neb. 123, 124, 230

N.W.2d 472, 472 (1974).

III. Jury Instructions a. Two Causes of Action—Two Parents and a Child—Negligence of

Parent Not Imputed to Child. NJI2d Civ. 3.26A.

This case involves two causes of action. One is brought by (name of person bringing suit on behalf of child), on behalf of (name of child), for

(injuries, damages) allegedly suffered by the child. The other cause of action is brought by the child's parents, for damages allegedly personally suffered by them, the parents, by reason of injuries to their child.

Regarding the first cause of action, the one brought on behalf of the child, negligence on the part of a parent may not be imputed to a child. By that I mean that negligence on the part of a parent does not relieve the defendant of any liability the defendant may have to the child for injuries or damages suffered by the child. In this case, if you find any negligence on the part of the parents, you must not consider it in deciding the damages, if any, to which the child is entitled.

Regarding the second cause of action, the one brought by the parents on their own behalf, if a parent has personally suffered any damages by reason of injuries to his or her child, whether that parent was negligent or not is relevant to whether that parent may recover for such damage personally suffered. In this case, the parents claim that they suffered personal damages by reason of injuries to their child. If you find that either parent has suffered some personal damage and that that parent was negligent, then Instruction No. the general instruction on contributory and comparative negligence, governs whether or not that parent can recover for his or her personal damages. If one parent was negligent and the other was not, the negligence of the one does not affect the recovery of the other, the non-negligent parent.

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b. Two Causes of Action—One Parent and a Child—Negligence of

Parent Not Imputed to Child. NJI2d Civ. 3.26B.

This case involves two causes of action. One is brought by (name of person bringing suit on behalf of child), on behalf of (name of child), for injuries allegedly suffered by the child. The other cause of action is brought by (name of mother), the child's mother, for damages allegedly suffered by her, by reason of injuries to her child.

Regarding the first cause of action, negligence on the part of a parent may not be imputed to a child. By that I mean that negligence on the part of a parent does not relieve the defendant of any liability the defendant may have to the child for injuries or damages suffered by the child. In this case, if you find any negligence on the part of a parent, you must not consider it in deciding the damages, if any, to which the child is entitled.

Regarding the second cause of action, the one brought by the mother on her own behalf, if she has personally suffered any damages by reason of injuries to her child, whether she was negligent or not is relevant to whether she may recover for such damage personally suffered. In this case the mother claims that she has suffered personal damages by reason of injuries to her child. If the mother did suffer some personal damage and if you find that she was herself negligent, then Instruction No. , the general instruction on contributory and comparative negligence, governs whether or not she can recover for her personal damages. c. General Instruction on Damages in a Tort Action Where Joint and

Several Liability Is an Issue—Economic and Noneconomic Damages.

NJI2d Civ. 4.00.

In Instruction No. , I spoke of economic and noneconomic damages.

ECONOMIC DAMAGES

I am about to give you a list of things you may consider in making your decision regarding economic damages. From this list, you must only consider those things you decide were proximately caused by defendants‘ negligence.

1 The reasonable value of medical (, hospital, nursing, and similar) care and supplies reasonably needed by and actually provided to the plaintiff (and reasonably certain to be needed and provided in the future);

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2 The (wages, salary, profits, reasonable value of the working time, business) the plaintiff has lost because of (his, her)(inability, diminished ability) to work;

3 The reasonable value of the (earning capacity, business or employment opportunities) the plaintiff is reasonably certain to lose in the future;

4 Reasonable funeral costs;

5 The reasonable value of plaintiff's loss of the use of (his, her) property;

6 The reasonable value of the cost of repair or replacement (here describe the thing repaired or replaced);

7 The reasonable cost of obtaining substitute domestic services.

NONECONOMIC DAMAGES

I am about to give you a list of things you may consider in making your decision regarding noneconomic damages. From his list, you must only consider those things you decide were proximately caused by defendants‘ negligence.

1 The reasonable monetary value of the physical pain and mental suffering (and emotional distress) the plaintiff has experienced

(and is reasonably certain to experience in the future);

2 The reasonable monetary value of the inconvenience the plaintiff has experienced (and is reasonably certain to experience in the future);

3 The reasonable monetary value of loss of society and companionship suffered by the plaintiff and reasonably certain to be suffered in the future;

4 The reasonable monetary value of any injury to plaintiff's reputation;

5 The reasonable monetary value of any humiliation the plaintiff has experienced (and is reasonably certain to experience in the future);

6 The plaintiff's (husband‘s, wife‘s) loss of consortium.

Consortium means those things to which a person is entitled by reason of the marriage relationship. It includes affection, love,

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companionship, comfort, assistance, moral support, and the enjoyment of (sexual, conjugal) relations.

ECONOMIC AND NONECONOMIC DAMAGES

In your determination of economic and noneconomic damages, you must consider the nature and extent of the injury, including whether the injury is temporary or permanent, and whether any resulting disability is partial or total.

Who ―owns‖ the right to sue for medical expenses? Parent or child? If parent, does that end at the age of majority when it becomes the child’s claim?

Parent owns right to sue for medical expenses incurred during minority since parent is responsible for child‘s medical expenses.

Macku v. Drackett

Products Co.

, 216 Neb. 176, 179, 343 N.W.2d 58, 60 (1984). No authority indicates if claim become‘s child‘s after age of majority.


A wrongful death action shall be brought by and in the name of the person‘s personal representative for the exclusive benefit of the widow or widower and next of kin. Neb.Rev.St. § 30-809. The cause of action is not for the decedent or the decedent‘s estate but rather for the exclusive benefit of the widow, widower and next of kin. Corona de Camargo v. Schon , 278 Neb. 1045,

776 N.W.2d 1 (2009). In a wrongful death action where the deceased is a minor child, the damage will more often be based on the life expectancy of the parentbeneficiaries rather than on the life expectancy of the deceased. Dorsey v. Yost ,

151 Neb. 66, 70, 36 N.W.2d 574, 576 (1949).


1. Medical and funeral expenses.

Statutory beneficiaries may recover the fair and reasonable value of medical and funeral expenses, but only in a separate cause of action. Reiser v. Coburn , 255 Neb. 655, 659,

587 N.W.2d 336, 339 (1998).

2. Decedent’s Likely Future Contributions.

The measure of damages in such a case is the contributions the decedent would have made to the statutory beneficiaries had the decedent not died. The amount recoverable is the financial loss, including lost money and lost services that have a monetary value, which the statutory beneficiaries have suffered as a result of decedent‘s death. See e.g.

, Neb.Rev.Stat. § 30-

810 (Reissue 2008); Maloney v. Kaminski , 220 Neb. 55, 69, 368

204

N.W.2d 447, 458 (1985). Includes talents, successes, occupation, past earnings, personal living expenses etc.

3. Loss of earnings.

Loss of earnings is not a proper measure of damages in a wrongful death action. Evidence of lost earnings is, however, ordinarily admissible: the proper measure—pecuniary loss to the beneficiaries—includes the amount the beneficiaries would have received from the lost earnings. Darnell v. Panhandle Coop. Ass'n , supra. The measure of damages in an action for the wrongful death of a minor child is the monetary loss the statutory beneficiaries sustain as the result of being deprived of the child's services during minority plus the monetary value of the contributions the child might reasonably be expected to have made after reaching majority. Garvin v. Coover , 202

Neb. 582, 585, 276 N.W.2d 225, 226–27 (1979).

4. Prospects that there would have been changes in the future.

The decedent‘s prospects of bettering him- or herself are relevant to whether decedent's contributions would have changed in the future.

Garvin v. Coover , 202 Neb. 582, 586, 276 N.W.2d 225, 227 (1979).


1. Loss of society, comfort and companionship.

Damages for wrongful death include loss of the child‘s society, comfort, and companionship which are shown by the evidence to have a pecuniary value.

Neb.Rev.St. § 30-810; Nelson v. Dolan , 434 N.W.2d 25 (Neb. 1989);

Williams v. Monarch Transp. Inc.

, 470 N.W.2d 751 (Neb. 1991). The measure of damages is the monetary loss the parent sustains as the result of being deprived of the child‘s services during minority plus the monetary value of the contributions the child might reasonably be expected to have made after reaching majority. ―Society‖ embraces a broad range of mutual benefits each family member receives from the others‘ continued existence, including love, affection, care, attention, companionship, comfort, and protection. Brandon v. County of

Richardson (Brandon II) , 261 Neb. 636, 664–67, 624 N.W.2d 604,

625–26 (2001).

2. Mental Suffering experienced by parent.

Mental suffering, bereavement or solace of the parent on account of the death are not recoverable. Nelson , 434 N.W.2d 25.

3. Pain and Suffering experienced by decedent.

Mental anguish or pain and suffering experienced by the decedent prior to death are not recoverable. Nelson , 434 N.W.2d 25. However, a separate action on behalf of the decedent‘s estate for conscious pain and suffering

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experienced before death, medical expenses, and funeral and burial expenses may be joined as a separate cause of action in an action for wrongful death. Reiser v. Coburn , 587 N.W.2d 336 (Neb. 1998).

Damages to decedent‘s next of kin may be recovered in a wrongful death action; damages to decedent may not.

4. Punitive Damages. Punitive damages generally are not available in civil cases in Nebraska. Miller v. Kingsley , 194 Neb. 123, 124, 230

N.W.2d 472, 472 (1974).

III. Jury Instructions a. Wrongful Death. NJI2d Civ. 4.60.

If you return a verdict for the plaintiff, then you must determine the amount of money, and the monetary value of the services, comfort, and companionship, that (the decedent) would have contributed to (spouse, next of kin), had (the decedent) lived. In making this determination, you should consider the following:

1 Any financial support, services, comfort, or companionship that

(the decedent) gave to (spouse, next of kin) before (his, her) death, and the prospect that there would have been changes in the future;

2 The physical and mental health of (the decedent) had (he, she) not suffered the injuries that caused (his, her) death;

3 (The decedent)'s life expectancy immediately before the injuries that caused (his, her) death; and

4 The life expectanc(y, ies) of (spouse, each next of kin).

In considering these lost contributions, you may award damages only for the life expectancy of the decedent or (spouse, each next of kin), whichever is shorter. You may not award (spouse, next of kin) any damages for (his, her, their) grief or mental suffering. [(You may not award any damages for any pain and suffering that the decedent may have experienced before (his, her) death.) (You may not include here any money to compensate for any pain and suffering that the decedent may have experienced before (his, her) death. The decedent's pain and suffering is the subject of the (second, third, et cetera) cause of action and must be handled according to Instruction No. .)]

[You should entirely disregard the fact that the surviving spouse (has remarried, may remarry), the fact that (spouse, next of kin) may receive an

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inheritance from the decedent's estate, and the fact that (spouse, next of kin) may receive insurance or workers' compensation benefits as a result of decedent's death].

[If you do return a verdict for the plaintiff, it must consist of a single sum of money representing the entire monetary loss of all of (spouse, next of kin). Do not divide the money (between, among)(spouse, next of kin); that will be done by the court. (If the jury is to allocate the award, that will be handled in the verdict form. See Comment, below.)]

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NEVADA

Jack P. Burden, Esq.

James J. Conway, Esq.

Backus, Carranza & Burden

Las Vegas, Nevada

(702) 872-5555




Under Nevada law, where the injured person is a minor and the costs of his care have been met by a parent, a direct right of action by such parent against the wrongdoer exists. Armstrong v. Onufrock , 341 P.2d 105, 75 Nev. 342 (1959). The parents may recover for damages the parents have sustained, such as medical expenses incurred by them. Hogle v. Hall By and Through Evans ,

1996, 916 P.2d 814, 112 Nev. 599.

2. Future Medical Expenses.

3. Lost Wages.

Parents may recover for loss of child‘s earnings. Hogle v. Hall By and Through Evans , 1996, 916 P.2d 814, 112 Nev. 599

.

While Nevada has not addressed a minor‘s claim for loss of earnings

(assuming a child under eighteen years of age was employed), Nevada law may permit the minor to recover for lost earnings based upon the aforementioned Hogle holding permitting parents to recover for a child‘s loss of earnings. However, Nevada has not addressed, and therefore has not recognized, either a minor‘s or a parent‘s right to recover for loss of future earnings in a personal injury action on behalf of a minor.

4. Property Damage.

Nevada Civil Jury Instruction 10.00 permits recovery in a personal injury case for any property damage.


Parents may recover for their loss of child‘s services. Hogle v. Hall By and Through Evans , 1996, 916 P.2d 814,

112 Nev. 599.


1. Physical Pain and Suffering. A minor may recover for pain and suffering. The Supreme Court of Nevada has held that a minor may sue for damages ―though elements of the damages recoverable by him may be limited to such items as pain, suffering, disfigurement, and the

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like.‖

Walker v. Burkham , 1946, 165 P.2d 161, 63 Nev. 75. A plaintiff may recover for pain and suffering, disfigurement, loss of earnings, loss of earning capacity, loss of future earnings, medical expenses, aggravation of pre-existing injuries or disabilities, and emotional distress. Gutierrez v. Sutton Vending Service, Inc.

, 80 Nev.

562, 397 P.2d 3 (1964).

Nevada Revised Statute 12.080 permits a parent or guardian to maintain an action for the injury of a minor child. NRS 12.080 states that ―The father and mother jointly, or the father or the mother, without preference to either, may maintain an action for the injury of a minor child who has not been emancipated, if the injury is caused by the wrongful act or neglect of another.‖


Nevada has also not addressed ―hedonic damages‖ in the context of a personal injury action by a minor.

However, the Nevada Supreme Court has held that an ―award for hedonic damages is not appropriate as a separate award, but can be awarded as a part of general damages awarded to a Plaintiff. Thus, in

Nevada, an expert can opine as to hedonic damages and a jury can award hedonic damages, but only as a part of general damages for pain and suffering, and not as a separate award.‖ Banks v. Sunrise , 120

Nev. 822. 102 P.3d 52 (2004). Therefore, if one were to apply pertinent case law that has addressed an adult‘s hedonic damages claim, one must conclude that any hedonic damages claim by a minor would only be awarded as part of any general damages sustained.

III. Jury Instructions a. Personal Injury and Property Damage.

Nev. JI 10.00.

Nevada does not have a Model Civil Jury Instruction directly addressing personal injury to a minor. However, Nevada Jury Instruction 10.00 addresses ―Personal Injury and Property Damage.‖ It reads:

In determining the amount of losses, if any, suffered by the plaintiff as a proximate (legal) result of the accident in question, you will take into consideration the nature, extent and duration of the injuries (or damage) you believe from the evidence plaintiff has sustained, and you will decide upon a sum of money sufficient to reasonably and fairly compensate plaintiff for the following items

(to be set forth by counsel):

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Who ―owns‖ the right to sue for medical expenses? Parent of child? If parent, does that end at the age of majority when it becomes child’s claim.

The Supreme Court of Nevada has held that in a suit by parents, the parents are entitled to recover only such damages as they may have sustained, such as their loss of child‘s services and earnings, and medical expenses incurred by them in effecting cure. Hogle v. Hall By and Through Evans , 1996, 916 P.2d

814, 112 Nev. 599 (citing NRS 12.080). Therefore, a parent would ―own the right‖ to sue for those medical expenses that were incurred by the parent.

As for a child‘s ―ownership of the right‖ to sue for medical expenses,

―[A]lthough mother or father are statutorily permitted to bring suit for injuries sustained by their minor child, the right to sue for those damages belongs to minor unless parent has paid expenses for minor or incurred them him or herself.‖ Id.

The holding in Hogle was recently incorporated into a Nevada federal district court decision in McGarvey v. Smith’s Food Drug Centers, Inc.

, 2011 WL

1832787 (D.Nev.). In McGarvey , the federal court stated that ― A minor plaintiff may not recover damages for medical expenses which her parents were statutorily obligated to pay, absent a valid waiver.‖

Id. (citing Hogle v.

Hall By and Through Evans, 112 Nev. 599, 606). ―The Nevada Supreme Court has held that in a personal injury action brought to recover damages for injuries sustained by a minor, the parents and the child have two separate and distinct causes of action against the tortfeasor.‖ Id.

The McGarvey court also held that ―The minor‘s recovery ‗may be limited to such items as pain, suffering, disfigurement and the like.‘‖ Id. (citing Walker v.

Burkham, 63 Nev. 75, 83 (1946)). ―However, ‗[i]n a suit by the parents, they would be entitled to recover only such damages as may have been sustained by them, such as their loss of the child's services and earnings and medical expenses incurred by them in effecting a cure.‘‖ Id.

The McGarvey decision also espoused the policy behind its holding: ―The rule vesting in the parent the right to recover medical expenses is grounded in the proposition that the parent has a duty to care for the child, and that as a result of that duty, the parent, not the child, is contractually liable for medical expenses incurred on the child's behalf.‖

Id. (citing Garay v. Overholtzer, 631A.2d 429,

442 (Md.1993); See 4 J.G. Sutherland, Law of Damages, § 1250, at 4737–38 (4th ed.1916))‖. Finally, ―Absent a waiver of this right by the parents, a minor child may not sue for medical expenses which he or she has not incurred.‖

Id.

Therefore, the minor ―owns‖ the right to sue for those medical expenses incurred which have not been paid by the minor‘s parents. In contrast, those payments made by the parents are recoverable by the parents on the parents‘ behalf.

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Finally, Nevada has not addressed the issue of a minor obtaining the right to sue for medical expenses once the minor reaches the age of majority in an action for the recovery of medical expenses in a personal injury action. Assuming that the minor (and not the minor‘s parents) is seeking recovery of medical payments, the Supreme Court of Nevada has held that when a minor brought a suit in the name of his guardian, and, upon the minor reaching the age of majority, the minor should have been substituted as the plaintiff. Ricord v. Central Pac. R.

Co.

, 15 Nev. 167.



Under Nevada law, a minor‘s heirs may recover ―any special damages, such as medical expenses….and funeral expenses.‖ NRS 41.085. In addition,

Nevada case law and Nevada Pattern Jury Instruction 10.14 expand the economic damages that a surviving parent or guardian may recover to also include the

―support and financial benefit which is itself reasonably certain the heir would have received from the child after the latter‘s majority and during the period of their common life expectancy. ( see Hogle v. Hall By and Through Evans , 1996,

916 P.2d 814, 112 Nev. 599 (citing NRS 12.080); see also Nevada Pattern Jury

Instruction 10.14).

Nevada law also permits a recovery by the minor‘s heirs of exemplary or punitive damages that the minor would have received had the minor lived. (NRS

41.100(3)). In addition, the estate may recover for the decedent‘s pain and suffering before death, funeral expenses and penalties a decedent would have recovered had he lived. ( see Nevada Pattern Jury Instructions 10.00 – 10.09; NRS

41.085; NRS 41.100).

The Supreme Court of Nevada has held that a plaintiff may recover for pain and suffering, disfigurement, loss of earnings, loss of earning capacity, loss of future earnings, medical expenses, aggravation of pre-existing injuries or disabilities, and emotional distress. Gutierrez v. Sutton Vending Service, Inc.

, 80

Nev. 562, 397 P.2d 3 (1964).

II. Jury Instructions:

Nevada Civil Jury Instruction 10.14 addresses a wrongful death claim for a minor. It reads:

The heir‘s loss of probable support, companionship, society and comfort.

In determining that loss, you may consider not only the benefits that the heir was reasonably certain to have received from the earnings and services of his child during the child‘s minority, but also the support and

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financial benefit which is itself reasonably certain the heir would have received from the child after the latter‘s majority and during the period of their common life expectancy.

You may consider also what loss, if any, the heir has suffered, and will suffer in the future with reasonable certainty, by being deprived of the love, companionship, comfort, affection, society, solace or moral support of the child.

With respect to the matter of life expectancy, you must keep this point in mind: the prospective period of time that will be of concern to you if you decide in favor of any heir is only the shorter of the two life expectancies that of such heir or that of the deceased child, as one can derive a benefit from the life of another only so long as both are alive.

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I.

NEW HAMPSHIRE

Matthew R. Shindell


Goldberg Segalla LLP


267-519-6800


Damages Recoverable/Jury Instructions: a. § 9.5 Damages--Full, Fair and Adequate

You are instructed that in your determination as to the amount of damages to award to the plaintiff you must consider the evidence in the case and must not consider, discuss, or speculate upon any events, factors, possibilities or other matters not admitted in evidence.

The rules of evidence prohibit either party from introducing into evidence the existence or nonexistence of insurance coverage. This includes motor vehicle insurance, liability insurance, worker's compensation benefits, and health insurance. No inferences should be drawn from the failure of the parties' to mention the existence or nonexistence of insurance coverage.

In determining damages, you may not consider or speculate on whether the defendant is insured or has the ability to pay an award. Your responsibility is to determine damages in accordance with the law the judge will explain to you, without regard to the defendant's financial circumstances.

Likewise, you may not consider or speculate on whether the plaintiff has received benefits from other sources in connection with his/her injuries.

This includes worker's compensation benefits, health insurance coverage, and any other insurance benefits. The law does not permit you to make any deduction from the plaintiff's damages to reflect benefits which may have been received from other sources. This is so because the plaintiff may be required to repay such other sources from any award made in the case. Your duty is to determine damages based only on the evidence presented at trial and the legal instructions which the judge will give you.

Nor may you consider any publicity, advertisements or news articles or items about lawsuits in general for the effect, if any, your verdict might have on others.

In other words, on the issue of damages, the only proper consideration is what amount of money will fully, fairly, and adequately compensate the

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plaintiff for the injuries he/she has sustained as you find from the evidence.

The plaintiff has the burden to prove that the injuries he/she claims to have sustained were caused by the defendant's legal fault. He/She also has the burden to demonstrate the extent of those damages. You are not allowed to guess, surmise or speculate. You should award the plaintiff an amount to compensate him/her for his/her loss; the amount of the verdict must make him/her whole, not a reward or prize, but, on the other hand, not miserly or stingy.

The reason behind awarding a verdict to the plaintiff is not to punish the defendant for any wrongdoing but to compensate the plaintiff for the injuries incurred as a result of the defendant's legal fault. The law cannot do the impossible by turning back the clock and eliminating the accident from ever having occurred; it does provide a means by which the plaintiff is made whole, by awarding full, fair and adequate compensation. b. § 9.6 Elements of Personal Injury Damages

In awarding damages, the following may be considered:

1. The reasonable value of medical (hospital, nursing) care, services, and supplies reasonably required and actually given in the treatment of plaintiff (and the reasonable value of similar items that will probably be required and given in the future).

2. The present value of lost wages to date or wages plaintiff probably would have earned to date if he/she had not been injured.

3. The present value of plaintiff's loss of earning capacity, that is, any future wages that plaintiff probably would have earned if he/she had not been injured.

4. Reasonable compensation for pain and suffering experienced to date and which will probably be experienced in the future. This includes compensation for physical pain, discomfort, fears, anxiety, mental and emotional distress, and loss of enjoyment of life--that is, the inability to carry on and enjoy life in a manner had the accident not occurred.

No definite standard (or method of mathematical calculation) is prescribed by law by which to fix reasonable compensation for pain and suffering.

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Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for pain and suffering you should exercise your reasonable judgment and the damages you determine have to be full, fair and adequate in light of the evidence. c. § 9.9 Hedonic Damages

In addition, in a case in which the plaintiff has established permanent injuries, the jury is entitled to award such compensation as it determines would fairly and fully compensate the plaintiff for any loss of enjoyment of life which he/she has sustained as a result of the defendant's legal fault.

This element is separate and distinct from the claim of economic loss and conscious pain and suffering. It concerns the inability, if any you find from the evidence, of the plaintiff to carry on and enjoy a life in a manner had the accident not occurred. d. § 9.14 Enhanced Damages

The purpose of an award of damages is to compensate the plaintiff for his/her/its loss, not to punish the defendant. You are not permitted to award money damages for the purpose of punishing the defendant or of making an example of him/her/it for the public good or of preventing him/her/it and others from similar conduct.

If you find that plaintiff suffered actual damages that were caused or substantially caused by the conduct of the defendant, there are certain circumstances under which the law permits you, but does not require you, to consider an award of additional damages to reflect aggravating circumstances. These damages are called "enhanced damages" or "liberal compensatory damages." You may award these damages only if you find that the defendant's conduct was more probably than not wanton, malicious, or oppressive. "Wanton" means reckless indifference or disregard of consequences. "Malicious" means ill-will, hatred, hostility, or bad motive. "Oppressive" means abuse of power. e. § 9.21 Loss of Earning Capacity

In tort actions for personal injuries, the plaintiff is entitled to recover damages for his or her loss or dimunition of earning capacity. This is measured by the amount of wages that the plaintiff would have earned during the period of his or her disability had he or she not been injured.

While there is no fixed rule to calculate the amount of damages to be recovered for loss or dimunition of earning capacity, you may consider evidence that tends to show that as a result of the injury, the plaintiff's ability to earn money in the future has been impaired or diminished.

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II. Medical Expenses

Generally speaking, "[w]hen a minor child is injured by the negligent act of a third party two causes of action arise. One by the child itself for personal injuries upon it; a second by the parent or parents for consequential damages such as loss of services and expenses caused by the injury to the child." Heath v.

Seymour , 110 N.H. 425, 429, 270 A.2d 602, 605 (1970). In Blue Cross/Blue

Shield v. St. Cyr, 123 N.H. 137, 459 A.2d 226 (1983), the Court reasoned that because a parent, and not a minor child, is liable for medical expenses incurred on the child's behalf, the child has no right to recover those expenses. Consequently, an insurer generally has no subrogation rights it can specifically enforce against the minor in his or her action for personal injuries. Id. at 141, 459 A.2d at 228-29.

Normally, any rights to which an insurer is entitled under its subrogation clause pertain solely to the parents' action for consequential damages. Id. at 141, 459

A.2d at 229.

RSA 464-A:42 requires court approval of a settlement on behalf of a minor before that settlement can take effect. Superior Court Rule 111 provides that the approval shall be requested by petition, and prescribes the information to be set forth in that petition. It states that the petition shall contain, where applicable: "The total amount of the settlement and whether the bills are to be paid out of the total settlement or are being paid in addition as part of the parent's claim. If the parent is being paid anything directly, the petition should contain a statement of the total amount being paid the parent and a specification of the items covered." Super. Ct. R. 111(c). Hence, while the settlement nominally is one on behalf of a minor, provision is made for the payment of expenses incurred by the parent -- expenses which normally would be recovered only in an action by the parent against the tortfeasor. See Blue Cross/Blue Shield v. St. Cyr, 123 N.H.

137, 141, 459 A.2d 226, 229 (1983); Heath v. Seymour, 110 N.H. 425, 429-30,

270 A.2d 602, 605 (1970). These bills, of course, serve as the "specials" in the child's tort action and are usually a key factor in negotiating a settlement.


I. Wrongful Death Statute and Evidentiary Issues

1. Wrongful Death Statute, RSA 556:12

If the administrator of the deceased party is plaintiff, and the death of such party was caused by the injury complained of in the action, the mental and physical pain suffered by the deceased in consequence of the injury, the reasonable expenses occasioned to the estate by the injury, the probable duration of life but for the injury, and the capacity to earn money during the deceased party's probable working life, may be considered as elements

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of damage in connection with other elements allowed by law, in the same manner as if the deceased had survived.

In addition, the trier of fact may award damages to a surviving spouse of the decedent for the loss of the comfort, society, and companionship of the deceased; however, where fault on the part of the decedent or the surviving spouse is found to have caused, in whole or in part, the loss complained of, damages recoverable shall be subject to diminution to the extent and in the manner provided for in RSA 507:7-d. In no event shall damages awarded under this paragraph exceed $150,000.

In addition, where the decedent is a parent of a minor child or children, the trier of fact may award damages to such child or children for the loss of familial relationship, whether caused intentionally or by negligent interference; where the decedent is a minor child with a surviving parent or parents, the trier of fact may award damages to such parent or parents for the loss of familial relationship, whether caused intentionally or by negligent interference. However, where fault on the part of the decedent or the claimant is found to have caused, in whole or in part, the loss complained of, damages recoverable shall be subject to diminution to the extent and in the manner provided for in RSA 507:7-d. For purposes of this paragraph, loss of familial relationship shall include the loss of the comfort, society, affection, guidance, and companionship of the deceased.

In no event shall damages awarded under this paragraph exceed $50,000 per individual claimant.

2. Loss of Familial Relationship

The statutory claim for damages attributable to loss of familial relationship

(RSA 556: 12, III) is analogous to a loss of consortium claim under RSA

556: 12, II (decedent spouse) and RSA 507: 8-a (injured spouse). The plain language of RSA 556: 12, III: (1) tracks the statutory language providing for damages for loss of consortium in a wrongful death action

(RSA 556: 12, II); and (2) provides for compensation for "loss of comfort, society, affection, guidance, and companionship of the deceased," which does not involve bodily injury to the surviving parent or child. Like a loss of consortium claim, loss of familial relationship is a consequential damage derivative of the original underlying bodily injury. Guilfoy v.

United Servs. Auto. Ass'n, 153 N.H. 461, 464 (2006)

3. Punitive Damages

New Hampshire does not permit an award of punitive damages. Bourque v. Town of Bow, 736 F. Supp. 398, 407 (D.N.H. 1990) ("punitive or exemplary damages are unavailable"); Panas v. Harakis, 129 N.H. 591,

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529 A.2d 976 (1987) ("this jurisdiction forbids the award of punitive damages").

II. New Hampshire Jury Instructions a. § 16.1 Measure of Damages

In determining damages in this action for wrongful death, you should consider:

1. The mental and physical pain, if any, suffered by the decedent;

2. Reasonable expenses occasioned to the estate as a result of the injury

(such as medical and hospital expenses, funeral and burial expenses);

3. Lost earning capacity.

4. Loss of life--that is, the decedent's inability to carry on and enjoy life in a way he/she would have for his/her probable life expectancy had he/she survived. b. § 16.2 Mental and Physical Pain

There is no formula for determining an amount for physical and mental pain and suffering. The matter is left to your sole discretion based upon the evidence you have heard.

You may take into consideration the amount of any pain, suffering, discomfort and mental anguish that plaintiff endured up to his/her death

(caused) (substantially caused) by the injury in question. c. § 16.3 Reasonable Expenses

Reasonable expenses occasioned to the estate by the injury is one of the elements you should consider. That simply means any reasonable funeral and burial, medical and hospital expenses occasioned to the estate by the decedent's death. d. § 16.4 Lost Earning Capacity

In determining the decedent's capacity to earn money, what you are to determine is the loss to the estate due to the destruction of the decedent's earning power. The loss to the estate is what you are deciding. In order to do that, you should consider the following;

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1. The amount the decedent probably was capable of earning for the balance of the decedent's probable working life;

2. From that amount you are to deduct the decedent's probable necessary personal expenses he/she would have during the balance of his/her lifetime. This figure should not include anything that may have been spent for the family, just for the decedent's own personal necessary living expenses.

In making this determination, you should consider:

1. The decedent's probable working life expectancy but for the injury.

2. The proper rate of interest by which the adjusted gross figure should be discounted. (This may be offset by the amount of inflation over the period of decedent's expected lifetime.) e. § 16.6 Loss of Life

The estate of [the decedent] is entitled to be compensated for the loss of

[his/her] life, that is, for the shortening of his/her life. In other words, an item to be considered as damages recoverable in a case such as this is an amount of money, based upon the evidence, which recognizes [the deceased's] inability, by virtue of [his/her] shortened life, to carry on and enjoy life in a way he or she would have had [he/she] lived longer. Once again, it is up to you to determine the appropriate amount to compensate the estate for that loss.

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NEW JERSEY

Mitchell W. Taraschi

Susan Kwiatkowski

Connell Foley LLP

Roseland, New Jersey

975-535-0500



1. Property Damages. Property damages are recoverable.

2. Medical and Other Related Expenses . Medical and related expenses are recoverable.

3. Loss of Wages or Wage-Earning Capacity . Loss of wages or wageearning capacity are recoverable. A parent may institute an action as the guardian ad litem for injuries to the child, and the parent may also sue independently for the loss of services of the injured child. Jacobs v. Jacobs, 99 N.J. Super. 84, 88, 238 A.2d 512, 514 (Ch. Div. 1968).

Lost wages and wage-earning capacity may be difficult to calculate for a minor who is not yet working outside of the home. However, courts will consider a child‘s contributions within the home, for example, babysitting and household chores, as well as any indications of his or her expected future contributions.


1. Hedonic Damages . Damages for loss of enjoyment of life are recoverable. Evoma v. Falco, 247 N.J.Super. 435, 452, 589 A.2d 653

(App. Div. 1991).

2. Emotional Distress . Damages may be awarded for emotional distress resulting in bodily injury or sickness, even if the plaintiff was not physically injured in the accident. Falzone v. Busch, 45 N.J. 559, 214

A.2d 12 (1965). Thus, if the plaintiff can demonstrate that the defendant‘s negligent conduct placed plaintiff in reasonable fear of immediate personal injury, and plaintiff suffered emotional distress resulting in bodily injury or sickness, damages are recoverable.

The Falzone holding was extended in 1980 to bystanders who witnessed the death or serious bodily injury of a close family member, even where the bystander was not at risk of physical harm. See Portee v. Jaffee, 84 N.J. 88, 101, 417 A.2d 521 (1980).

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3. Punitive Damages . Punitive damages are recoverable, but are dependent upon a compensatory damage award. Nominal damages cannot support an award of punitive damages. N.J.S.A. 2A:15-5.13.

There is a cap on punitive damages of five times the amount of compensatory damages or $350,000, whichever is greater. N.J.S.A.

2A:15-5.14(b).

To support an award of punitive damages, a plaintiff must prove by clear and convincing evidence that the injury was the result of the defendant‘s acts or omissions, and that the defendant‘s conduct was malicious or that the defendant acted in wanton and willful disregard of the plaintiff‘s rights. N.J.S.A. 2A:15-5.12(a).

III. Jury Instructions a. 8.10

Damages – Effect of Instructions

―1. What sum of money will fairly and reasonably compensate the plaintiff

[name] for damages he/she sustained as a proximate result of the accident/incident?

A. Pain, Suffering, Disability, Impairment and Loss of Enjoyment of Life?

$__________

B. Past Medical Expenses?

C. Future Medical Expenses?

$__________

$__________

D. Past Lost Wages?

E. Future Lost Wages?

$__________

$__________

TOTAL $__________

2. What sum of money will fairly and reasonably compensate the plaintiff

[name] for the lost of his/her spouse‘s services, society and consortium that he/she sustained as a proximate result of the accident/incident?

2

$__________ b. 8.11A Medical Expenses (Non-Auto)

―A plaintiff who is awarded a verdict is entitled to payment for medical expenses which were reasonably required for the examination, treatment and care of injuries proximately caused by the defendant‘s negligence (or other wrongdoing).

Medical expenses are the costs of doctors‘ services, hospital services, medicines, medical supplies and medical tests and any

2

While the Model Jury Charges specifically reference a ―spouse,‖ similar elements are considered for injuries to children.

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other charges for medical services. The amount of payment is the fair and reasonable value of such medical expenses. You have heard testimony on whether these medical expenses were fair and reasonable in amount and whether they were reasonably necessary for the examination, care and treatment of [plaintiff] . If you determine that any of these bills were not fair and reasonable to any extent, or that any of these services were not reasonably necessary to any extent, you need not award the full amount claimed. In this case, [plaintiff] is seeking the sum of [dollar amount] in medical expenses. As a result, the upper limit of the award which you may make for medical expenses is [dollar amount] , since you may not award more than [plaintiff] is seeking.‖ c. 8.30C Loss of Child’s Services and Earnings

―Parents are entitled to the services of their infant child, in the performance of household chores and to the child's earnings, until the child reaches the age of majority or is emancipated (for example, married) whichever is later.

After a child reaches majority or is emancipated, the right to loss of earnings belongs solely to the emancipated child; however the law recognizes that a child, after the age of majority, may perform services for the parents, may provide valuable companionship and care as the parents get older, and may make monetary contributions to the parents.

Parents who are awarded a verdict are entitled to fair and reasonable compensation for any loss or decrease of the child's earnings, services, companionship or contributions before the child reaches majority, and any loss or impairment of their child's services because of injuries sustained as a result of the defendant's negligence (or other wrongdoing).‖


The right to sue for medical expenses belongs to the parents. Mathias v.

Luke, 37 N.J.Super. 241, 246, 117 A.2d 177, 180 (App. Div. 1955) (―the assumption of the New Jersey cases has been that the recovery [for future medical outlays] belongs to the parents.‖); Jacobs v. Jacobs, 99 N.J. Super. 84, 88, 238

A.2d 512, 514 (Ch. Div. 1968) (―Clearly, the parent who actually pays for medical expenses caused or incurred as a result of tortious conduct is entitled to recover such expenditures.‖). Once a child reaches the age of majority, only he or she – not the parents – may recover for medical expenses.


Under New Jersey Law, the Wrongful Death Act (N.J.S.A. 2A:31-1 to -6) and Survivor Act (N.J.S.A. 2A:15-3) provide the statutory causes of action for the tortious death of a decedent. The Wrongful Death Act is intended to compensate

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for pecuniary losses. The Survivor Act allows for any personal cause of action the decedent would have had if he or she had survived. The primary recovery under the Survivor Act is for pain and suffering of the decedent between injury and death. See Galante v. May, 364 N.J.Super. 284, 288, 835 A.2d 352 (App. Div.

2003) (―Recovery under the Wrongful Death Act compensates the survivors of the decedent for the pecuniary losses they suffered because of the tortuous conduct of others…. The Survivor Act preserves for the decedent‘s estate any personal cause of action that decedent would have had if he or she had survived.‖).



2. Funeral, Medical and Other Related Expenses . Funeral, Medical and hospital expenses are recoverable. N.J.S.A. 2A:31-5; N.J.S.A.

2A:15-3.

3. Loss of Wages or Wage-Earning Capacity . New Jersey recognizes the difficulty in determining the future lost earning capacity and value of future services to the family; however, the caselaw is clear that while such calculations may be difficult and speculative, they do not preclude recovery. Green, 85 N.J. at 15, 424 A.2d at 217 (―[E]ven assuming no special circumstances are proven… the nature of these cases has lead our courts to allow damages even though the inferences, and the estimate of damages, are based on uncertainties.‖); Carey v.

Lovett, 132 N.J. 44, 68, 622 A.2d 1279, 1291 (1993) (―The problem inherent in evaluating the economic value of a newborn‘s life is obvious. No one can know much, if anything, about the infant and his or her future economic worth. That difficulty, however, should not preclude any award.‖). While an infant may appear to present a financial burden on his or her family due to the costs associated with raising a child, the New Jersey courts recognize that such a view

―would result in a return to the outmoded doctrine that a child is a liability – not an asset.‖ Borhman v. Pennsylvania Railroad Co., 23

N.J. Super. 339, 409, 93 A.2d 190, 195 (App. Div. 1952).

―The amount of the recovery under [Wrongful Death Act] is based upon the contributions, reducible to monetary terms, which the decedent reasonably might have been expected to make to the survivors, and is not related to their needs.‖ Dubil v. Labate, 52 N.J.

255, 259, 245 A.2d 177 (1968); Curtis v. Finneran, 83 N.J. 563, 570,

417 A.2d 15 (1980). ―The calculation of those losses involves two basic determinations: is it probable that decedent would have contributed to the survivors and, if so, to what extent would contributions have been made?‖ Johnson v. Dobrosky, 187 N.J. 594,

607 (2006). While expert testimony is not necessary to place a value

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on prospective services, it is considered helpful to avoid leaving the jury to guess as to those values. Correia v. Sherry, 335 N.J.Super. 60,

69, 760 A.2d 1156 (Law Div. 2000).

In contrast, prospective post-death lost-earning capacity is not recoverable pursuant to the Survival Act. Pollock v. Barrickman, 610

F.Supp. 878, 879 (D.N.J. 1985). Recovery under the Act only contemplates damages for pain and suffering between injury and death, and lost earnings between injury and death. Id.


1. Loss of Society and Companionship . While damages for the pecuniary value of services are recoverable, the pecuniary value does not include the emotional value of these services. Green, 85 N.J. at 12,

424 A.2d at 215 (―Companionship and advice in this context must be limited strictly to their pecuniary element. The command of the statute is too clear to allow compensation, directly or indirectly, for emotional loss.‖); Carey v. Lovett, 132 N.J. 44, 67-68, 622 A.2d 1279, 1291

(1993) (―Not compensable under the Wrongful Death Act… is the parents‘ emotional distress caused by the death of a child.‖).

2. Pain and Suffering . Damages for pain and suffering are recoverable under the Survivor Act, N.J.S.A. 2A:15-3. However, damages are recoverable only for conscious pain and suffering. Smith v. Whitaker,

160 N.J. 221 , 236, 734 A.2d 243 (1999).

3. Punitive Damages .

Punitive damages are not recoverable in wrongful death actions. Kern v. Kogan, 93 N.J.Super. 459, 469, 226 A.2d 186,

192 (Law Div. 1967) (―The New Jersey wrongful death act is essentially remedial rather than penal‖); Goss v. American Cyanamid

Co., 278 N.J. Super. 227, 241, 650 A.2d 1001 (App. Div. 1994) (―An award of damages in a wrongful death action is not intended to punish the tortfeasor, but only to replace that which the decedent likely would have provided.‖)

In contrast, a survival claim allows for the recovery on any personal cause of action that the decedent would have had if he or she had survived. Therefore, claim for punitive damages may be sustained under a survival action. Smith v. Whitaker, 160 N.J. 221, 243, 734

A.2d 243 (1999).

4. Loss of Enjoyment of Life . Hedonic damages are not recoverable under the Wrongful Death Act, Smith v. Whitaker, 160 N.J. at 231-32, however, they are recoverable under the Survival Act. See Clement v.

Consolidated Rail Corp., 734 F. Supp. 151 (D.N.J. 1989) (estate may

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make a claim for hedonic damages under Survivor‘s Act, but measure of such damages is limited to the time between injury and death).

5. Emotional Distress . Claims for emotional damage are limited. The

Wrongful Death Act does not recognize damage claims for emotional suffering where the claimant did not actually witness the death.

DeFelice v. Beall, 274 N.J.Super. 592, 599 (App. Div. 1994).

Moreover, limiting damages to pecuniary damages means that damages cannot be sought for mental anguish and distress, loss of consortium, and loss of companionship. Thomas v. Ford Motor Co.,

70 F.Supp.2d 521, 532 (D.N.J. 1999).

III. Jury Instructions a. 8.42 Survival Action

―In a survival action, the administrator as plaintiff is seeking damages for the decedent's hospital and medical expenses, loss of earnings as well as any disability and impairment, loss of enjoyment, and pain and suffering which the decedent sustained between this accident and his/her death.

Under the law, he/she is entitled to recover the damages which the decedent sustained during this period of time.‖ b. 8.43 Wrongful Death

What is Not Recoverable

―A. In this category of damages, you are not to consider any physical injuries or suffering that the decedent may have sustained, such as pain and suffering or disability.

B. You are also not to consider any emotional distress, anguish or grief the survivors may have suffered as a result of the decedent‘s death, or any loss of emotional satisfaction the survivors may have derived from the society and companionship of the decedent. These matters, although very real and distressing, cannot be considered in determining the extent of the financial loss suffered by the survivors.‖

What is Recoverable

―Financial loss includes not only the actual monies the decedent would have earned and contributed for the benefit of the survivors, but also the reasonable value of the services, assistance, care, training, guidance, advice, counsel and companionship the survivors would have received from the decedent had he/she lived.

A. With regard to the decedent‘s earnings, you should consider the net earnings after taxes as of the time of the decedent‘s death. You should also

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give due regard to any evidence concerning the decedent‘s potential future income during the balance of his/her working life expectancy. The income figure you use should be net income, that is, income after taxes. This is because net income represents that portion of the decedent‘s income which would have been available for the benefit of the decedent‘s survivors. Net income also includes fringe benefits, such as monies the decedent would have obtained in the form of employer contribution to a retirement plan.

Since money used for the decedent‘s personal maintenance and expenses would not have been available for the benefit of the survivors, you must subtract the decedent‘s personal expenses from the net income. You must find to what extent the decedent‘s net earnings were necessary for his/her personal needs and deduct that amount from the net income.

B. You may also consider the benefit the survivors would have received from the decedent in the form of services, assistance, guidance and training. In making such an award, you must determine the reasonable value of the services or benefits that will be lost by reason of the decedent‘s death.

C. In addition to the loss of anticipated direct financial contributions from the decedent to the survivors, as I explained previously, you should also consider the pecuniary value of the loss of the decedent‘s anticipated services to the survivors. This may include things such as chores the decedent would have performed including household chores, babysitting, etc. You should also consider the value of the loss of the companionship, advice and guidance of the deceased as the survivors grow older. You must remember, however, that your award for damages for these losses will be confined to their financial value and should not include any amount of emotional loss.

Bear in mind that in fixing an award for services, companionship, care, advice and counsel, you must distinguish between their emotional value and their financial or economic value. We recognize that [children, parents, spouse] may provide valuable services such as companionship, care, advice and guidance over time as the survivor(s) face(s) advanced age or declining health. Remember, however, that no pecuniary value may be attached to the emotional satisfaction gained by the parent, spouse or child if the deceased has performed these services.‖

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NEW MEXICO

Kathleen Stimeling

Lauren Quint



I.



2. Medical and Other Related Expenses . Medical, or other related expenses incurred as a result of wrongful or negligent act or omission or breach of warranty are recoverable. Medical expenses include the reasonable expense of necessary medical care, treatment and services received (including prosthetic devices and cosmetic aids) and the present cash value of the reasonable expenses of medical care, treatment and services reasonably certain to be received in the future.

See Vaca v. Whitaker , 519 P.2d 315 (N.M. Ct. App. 1974).

3. Loss of Wages or Wage-Earning Capacity . Loss of Wages or

Wage-Earning Capacity is recoverable. See Higgins v. Hermes, 553

P.2d, 379 (N.M. Ct. App. 1976). The loss of earning capacity by a minor is determined by the present cash value of earning capacity reasonably certain to be lost in the future after the plaintiff has reached the age of 18 years. See N.M. Stat. Ann. Civ. Uniform Jury Instr. 13-

1809.


1.

Hedonic Damages : The New Mexico Supreme Court held that the non-pecuniary value of a decedent's life is compensable under the New

Mexico Wrongful Death Act. Sears v. Nissan 872 P.2d 840 (N.M.

1994). New Mexico permits proof of nonpecuniary damages resulting from loss of enjoyment of life, regardless of whether the injured party is deceased. See Sena v. N.M. State Police 892 P.2d 604 (N.M. Ct.

App.1995).

2.

Disfigurement . The right to recovery for disfigurement is settled under New Mexico law.

3.

Loss of Use of Limb . The loss of use of a limb is a recoverable expense. See Alberts v. Schultz 975 P.2d 1279 (N.M. 1999).

Calculation of damages includes lost earnings and earning capacity, the reasonable value of medical treatment including prosthetics, and

227

non-medical expenses including pain and suffering. See N.M.

S TAT .

A NN . Uniform Jury Instr. Civ. 13-1809.

4.

Punitive Damages . It is the established law of New Mexico that punitive or exemplary damages may be awarded ―only when the conduct of the wrongdoer may be said to be maliciously intentional, fraudulent, oppressive, or committed recklessly or with a wanton disregard of the plaintiffs' rights.‖

Samedan Oil Corp. v. Neeld 577

P.2d 1245 (N.M. 1994). To prove punitive damages, one must prove conduct more egregious than gross negligence. Id. Punitive damages cannot be recovered without a recovery of compensatory or nominal damages . Sanchez v. Clayton , 877 P.2d 567 (N.M.1994). The burden of proof generally required in New Mexico for the recovery of punitive damages is proof by the preponderance of the evidence. See

United Nuclear Corp. v. Allendale Mut. Ins. Co . 709 P.2d 649 (N.M.

1985).

5.

Emotional Distress . Bystander recovery is allowed when there is 1) a marital or intimate familial relationship between the victim and the plaintiff, 2) severe shock caused by contemporaneous sensory perception of the accident, and 3) proof that the accident resulted in physical injury or death to the victim. See Folz v. State of New Mexico

797 P.2d 246 (N.M.1990). There may be other instances in which a purely emotional injury resulting from negligent conduct gives rise to a cause of action, however, at present New Mexico law is not sufficiently developed in this area to permit the drafting of a uniform jury instruction. See N.M.

S

TAT

.

A

NN

., Civ. Uniform Jury Instr. 13-

1630.

6.

Pain and Suffering : ―If a plaintiff in a personal injury case is entitled to recover at all, he is entitled to damages for his injuries, for pain and suffering, and for mental injury arising from the accident.‖

Jones v.

Pollock , 383 P.2d 271 (N.M.1963). See also Martinez v. Teague 631

P.2d 1314, 1320 (N.M. 1981).

III. Model Jury Instructions

Negligence – General; with preexisting conditions

―If you should decide in favor of the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate [him] [her] for any of the following elements of damages proved by the plaintiff to have resulted from the negligence [wrongful conduct] as claimed:

228

(NOTE: Here insert the proper elements of damages and, in a personal injury case, the instructions which immediately follow may be applicable but, in other types of litigation, the trial lawyers will need to insert here the proper elements applicable under the proven facts and the particular law governing the specific circumstances.)

Whether any of these elements of damages have been proved by the evidence is for you to determine. [If you find that, before any injury in this case, plaintiff was already impaired by a physical or emotional condition, plaintiff is entitled to compensation for the aggravation or worsening of the condition, but not for elements of damages to the extent they were already being suffered.] [However, damages are to be measured without regard to the fact plaintiff may have been unusually susceptible to injury or likely to be harmed. The defendant is said to ―take the plaintiff as he finds [him] [her],‖ meaning that the defendant, if liable, is responsible for all elements of damages caused by the defendant's conduct even if some of the plaintiff's injury arose because the plaintiff was unusually susceptible to being injured.]

Your verdict must be based upon proof and not upon speculation, guess or conjecture. Further, sympathy or prejudice for or against a party should not affect your verdict and is not a proper basis for determining damages.‖

N.M.

S

TAT

.

A

NN

.

C

IV

.

Uniform Jury Instr. Civ.

13-1601.

Who ―owns‖ the right to sue for medical expenses? Parent or child? When does it becomes the child’s claim?

Either a minor or his or her parent can recover for the minor‘s medical and non-medical expenses. See Lopez v. Sw. Cmty. Health Serv ., 833 P.2d 1183 (

N.M. Ct. App. 1992). The court found no legitimate reason why recovery for medical damages should belong only to the parent, as long as the tortfeasors are protected against double recovery. Id.

Prior to Lopez, minor plaintiffs could not recover damages in their own capacity. Instead their future medical expenses were awarded to parents who were legally bound to pay the expenses. The Lopez decision did not eliminate the role of the parents. Instead it allows either the parent or the child to sue and recover the damage award. Id.; see also Jessica Sutin Tort Law—Either the Parents or the

Child May Claim Compensation for the Child’s Medical and Non-Medical

Damage : Lopez v. Southwest Community Health Services, 23 N.M.L.

R EV . 373

(1993).

229

Damages Recoverable in Minor Wrongful Death Claims and Minor Survival

Actions

Under the Wrongful Death Act, New Mexico permits a personal representative to recover an award of damages both for the value of the loss of earnings of a decedent and for the non-pecuniary value of the decedent's life itself.

See Romero v. Byers, 872 P.2d 840 (N.M. 1994).

The Act is the exclusive remedy governing wrongful death actions in New

Mexico. Stang v. Hertz Corp., 463 P.2d 45, 48-49 (N.M. Ct. App.1969).

New Mexico‘s survival statute states that ―[i]n addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwithstanding the death of the person entitled or liable to the same. The cause of action for wrongful death and the cause of action for personal injuries, shall survive the death of the party responsible therefor.‖

N.M.

S

TAT

.

A

NN

. §37-2-1. It follows that the damages addressed below are also applicable to survivor claims.



2. Funeral, Medical and Other Related Expenses . Funeral and burial expenses are recoverable by parents for the wrongful death of their minor child. Williams v. Town of Silver City , 502 P.2d 304 (N.M. Ct.

App.1972). Additionally, in New Mexico, ―not only may a plaintiff recover the value of the life of the decedent, but the plaintiff may also prove up medical and hospital expenses which were incurred by the decedent before death.‖

Hall v. Regents of Univ. of New Mexico , 740

P.2d 1151, 1152 (N.M.1987).


1. Loss of Society and Companionship . A parent cannot file an action for loss of filial consortium for their child. Wilson v. Galt 668 P.2d

1104 (N.M. Ct. App.1983).

2. Pain and Suffering . New Mexico law allows damages to be awarded for the pain and suffering experienced by the deceased between the time of injury and death. Stang v. Hertz Corp., 463 P.2d 45, 48-49

(N.M. Ct. App. 1969).

230

3. Punitive Damages . Punitive damages are available in wrongful death actions. See N.M.

S TAT .

A NN . §41-2-3 (―[the] jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just.‖)

4. Loss of Enjoyment of Life . New Mexico permits proof of nonpecuniary damages resulting from loss of enjoyment of life, regardless of whether injured party is deceased. See Sena v. N.M. State

Police 892 P.2d 604 (N.M. 1995).

5. Emotional Distress . See discussion above regarding personal injury.


Wrongful Death

―This lawsuit has been brought by __________ ( plaintiff ) [individually and] on behalf of the surviving beneficiaries of __________ ( name of decedent ) who is now deceased. The surviving beneficiaries are

__________ ( names of surviving beneficiaries ).

New Mexico law allows damages to be awarded to the surviving [spouse],

[parent(s)], [grandparent(s)], [other familial caretaker(s)] [and] beneficiaries if the death or the related damages described in this instruction were caused by the wrongful act, neglect, or default of another.

If you should find for __________ ( plaintiff ) on the question of liability, you must then fix the amount of money which you deem fair and just for the life of __________ ( name of decedent ), including in your award compensation for any of the following elements of damages proved by the evidence:

1.

The reasonable expenses of necessary medical care and treatment and funeral and burial;

2.

The pain and suffering experienced by the deceased between the time of injury and death;

3.

The lost earnings, the lost earning capacity and the value of the lost household services of the deceased considering the deceased's age, earning capacity, health, habits, and life expectancy. In considering loss of earnings or earning capacity, deductions must be made for income taxes, social security taxes, other taxes, and personal living expenses of the deceased. The damages set forth in this paragraph are damages for future loss of

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money and are paid in a lump sum. Therefore, a reasonable discount must be made for the future earning power of the damages awarded;

4.

The value of the deceased's life apart from [his] [her] earning capacity;

5.

The mitigating or aggravating circumstances attending the wrongful act, neglect or default;

6.

[The emotional distress to the [spouse], [parent(s)],

[grandparent(s)], [other familial caretaker(s)] caused by the loss of

[society,] [guidance,] [companionship] and [sexual relations] enjoyed with the deceased;]

7.

The loss of guidance and counselling to the deceased's minor children.

8.

You may also consider the loss to the beneficiaries of other expected benefits that have a monetary value. While the presence or absence of a measurable monetary loss to beneficiaries is a factor for consideration, damages may be awarded even where monetary loss to the surviving beneficiaries cannot be shown.

The property or wealth of the beneficiaries or of the defendant is not a legitimate factor for your consideration.

The guide for you to follow in determining fair and just damages is the enlightened conscience of impartial jurors acting under the sanctity of your oath to compensate the beneficiaries with fairness to all parties to this action. Your verdict must be based on evidence, not on speculation, guess, or conjecture. You must not permit the amount of damages to be influenced by sympathy or prejudice, or by the grief or sorrow of the family [or the loss of the deceased's society to the family].‖

N.M.

S

TAT

.

A

NN

. Uniform Jury Instr. Civ. 13-1830

232

NEW YORK

Saleel V. Sabins

AnnMarie Giblin


Goldberg Segalla, LLP

Buffalo, New York

716-566-5400


I.

Special Rules Related to Lawsuits brought by Minors in NY

CPLR §§ 1207; 1208 - The settlement of any Infant‘s Case must be submitted to the Court for a hearing to determine if sufficient. If so, an

Infant‘s Compromise Order will be issued authorization the settlement.

CPLR § 1201 - The infant plaintiff can be represented in the lawsuit by either their parent or a guardian ad litem.

CPLR § 208 – The statute of limitations shall be tolled for an infant as follows: a.

If the status of limitations is 3 years or more, the time is extended until 3 years after the disability due to infancy ceases; b.

If the statute of limitations is less than 3 years, the time shall be extended by the period of disability due to infancy. c.

The time for commencement of the action shall not be extended beyond 10 years after the cause of action accrues for infants in medical, dental or podiatric malpractice cases. d.

The tolling provisions of CPLR § 208 do not apply to actions governed by the Warsaw Convention. Kahn v. Trans World

Airlines, Inc.

, 82 A.D.2d 696. e.

Any derivative claim by the parent is NOT tolled by CPLR § 208 and will be deemed untimely if not brought within prescribed period. D'Andria v. County of Suffolk , 112 A.D.2d 397.

When an infant becomes of age during the pendency of litigation, it is proper to substitute the infant for the parent or guardian ad litem.

McCarthy, Jr., v. Anable , 169 Misc. 595.

-

233

II. Right to sue for Medical Expenses – Parent v. Child

The parent is only allowed to recover those monies actually spent prior to trial to protect interest of infant. Clarke v. Eight A.R.Co.

, 238 NY 246; Benetiz v.

Trumble , 57 AD2d 716. Any future medical expenses awarded can only be awarded to infant-plaintiff. Id. See also NY PJI 2:318 – Damages – Derivative

Action Re Child – Expenses Incurred:

If you find that infant (―AB‖) is entitled to recover, you will award

(plaintiff-father, plaintiff-mother) as damages the fair and reasonable value of the expenses (he, she) incurred by reason of the medical, hospital, and nursing services and supplies that were necessary as a result of AB‘s injuries. (If the evidence supports a claim for future damages, state: you may not, however, award to the parent any amount for such expenses as may be incurred in the future, since you are to consider future expenses only in connection with AB‘s claim in this case).

III. Damages Recoverable/Jury Instructions a. Injury, Pain and Suffering

NY PJI 2:280 – Damages – Personal Injury – Injury and Pain and

Suffering

If you decide that defendant is liable, plaintiff is entitled to recover a sum of money which will justly and fairly compensate (him, her) for any injury and conscious pain and suffering to date caused by the defendant. [If there is an issue relative to the level of plaintiff‘s awareness, the following should be charged.] Conscious pain and suffering means pain and suffering of which there was some level of awareness by plaintiff

(decedent).

NY PJI 2:280.1 – To be read is loss of enjoyment of life is an element of plaintiffs claim

In determining the amount, if any, to be awarded plaintiff for pain and suffering, you may take into consideration the effect that plaintiff‘s

(decedent‘s) injuries (have had on plaintiff‘s ability to enjoy life up to the time of death). Loss of enjoyment of life involves the loss of the ability to perform daily tasks, to participate in the activities which were a part of the person‘s life before the injury, and to experience the pleasures of life.

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However, a person suffers the loss of enjoyment of life only If the person is aware at some level, of the loss that (he, she) has suffered.

If you find that plaintiff (decedent), as a result of (his, her) injuries, suffered some loss of the ability to enjoy life and that plaintiff (decedent) was aware, at some level, of a loss, you may take that loss into consideration in determining the amount to be awarded to plaintiffs. b. Permanent Injury

NY PJI 2:281 – Damages – Personal Injury – Future – Permanence – Life

Expectancy Tables

With respect to any of the plaintiff‘s injuries or disabilities, the plaintiff is entitled to recover for (his, her) ability to enjoy life. In this regard you should take into consideration the period of time that the injuries or disabilities are expected to continue. If you find that the injuries or disabilities are permanent, you should take into consideration the period of time that the plaintiff can be expected to live. In accordance with statistical life expectancy tables, AB has a life expectancy of [insert number] years. Such a table, however, provides nothing more than a statistical average. It neither guarantees that AB will live an additional

[insert years] or means that (he, she) will not live for a longer period. The life expectancy figure I have given you is not binding upon you, but may be considered by you together with your own experience and the evidence you have heard concerning the condition of AB‘s health, (his, her) habits, employment and activities in deciding what AB‘s present life expectancy is. c. Emotional Damages

NY PJI 2:284 – Damages – Personal Injury – Shock, Emotional Distress and Physical Consequences Thereof

If you find that the plaintiff is entitled to recover from the defendant, you must also include in your verdict damages for any mental suffering, emotional and psychological injury and any physical consequences resulting from the emotional distress caused by the wrongful act of the defendant.

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d. Loss of Earnings

NY PJI 2:291 - Damages – Personal Injury – Loss of Earnings – In general

Plaintiff AB is entitled to be reimbursed for any earnings lost as a result of

(his, her) injuries caused by Defendant CD‘s negligence from the time of the accident to today. Moreover, if you find that as a result of those injuries AS has suffered a reduction in (his, her) capacity to earn money in the future, then AB is also entitle to be reimbursed for loss of future earnings.

Any award you make for earnings lost to date must not be the result of speculation; any award must be calculated from the number of days that you find AB was disabled from working by the injuries and the amount that you find AB would have earned had (he, she) not been disabled.

Any award you make for reduction of AB‘s earning capacity in the future should be determine on the basis of AB‘s earnings before the accident, the condition of AB‘s health, (his, her) prospects for advancement and the probabilities with respect to future earnings before the accident, the extent to which you find that those prospects or probabilities have been reduced by the injuries, the length of time that you find AB would reasonably be expected to work had (he, she) not been injured, the nature and hazards or

AB‘s employment and any other circumstances which would have an effect on AB‘s earnings capacity.

AB is now [insert number] years of age and has a (life expectance according to the mortality tables , work life expectancy according to the work life expectancy tables in evidence) of [insert number] more years.

Such tables are, of course, nothing more than statistical averages. They neither assure that AB will have the span of (working) life I have given you nor assure that AB‘s span will not be greater. The figures I have given you are not binding upon you, but may be considered by you together with your own experience and the evidence you have heard in determining what AB‘s (life, work life) expectancy is. If you find that AB is entitled to an award for reduction in earning capacity in the future, you will fix the dollar amount of such reduction over the entire period that you find AB will suffer such reduction and include that amount in your verdict. In your verdict you will state separately the amount awarded for loss of earnings to date, if any, and, if you make an award for loss of

236

future earnings, you will stated in your verdict the amount awarded and the period of years over which such award is intended to provide compensation. Do not state an amount per year but only a total amount for the entire period.

1. Case law

The loss of future earnings as to an infant plaintiff is a proper measure of damages. Kavanaugh v. Nussbaum , 129 AD2d 559, mod on other grounds 71 NYS2d 833; Johnson v. Colvin , 145

AD2d 846; Campolo v. Yonkers , 137 AD2d 480. The award cannot be based upon speculation, and must be established with reasonable certainty. Davis v. New York , 264 AD2d 379, amended on other grounds 1999 WL 637163; Novko v. State , 285 AD2d

696. e. Loss of Earnings (Unrealized Occupation)

NY PJI 2:291 Damages – Personal Injury – Loss of Earnings – Unrealized

Occupation or Profession

Plaintiff AB has offered evidence that at the time of the injury (he, she) was pursuing a course of training to become a [state occupation or profession]. If the injuries sustained by AB (have interfered, are reasonably certain to interfere in the future) with AB‘s training, you may award such damages as you find that AB sustained because the injuries

(delayed AB, prevented AB from) attaining the earning capacity of that

(occupation, profession). In deciding this issue, you may consider AB‘s talent, the training received, the opportunities and recognition already had, the future opportunities that (he, she) (has, was likely to have), as well as the likelihood, risks and contingencies involved in achieving success in the (occupation, profession).

1. Case Law

The New York Courts allow the assessment of damages based on future earning potential even if the plaintiff was just training for the career. Grayson v. Irvmar Realty Corp.

, 7 AD2d 436.

However, there must be evidence that the infant-plaintiff might have pursued the career in question or had some probability of qualifying for such career. Dobski ex. Rel. Dobski v. Schenectady ,

272 AD2d 662; Schwall v. Ambrosio , 45 AD2d 732.

237

f. Loss of Earnings (Special Talent)

NY PJI 2:292 – Damages – Personal Injury – Loss of Earnings – Special

Talent

Plaintiff AB has offered evidence that (he, she) has been studying for a career (state career, e.g.: in opera, the theatre, music) for which (he, she) has special talent. A person who has special talents is entitled to recover damages for wrongful injury to the development of those talents. AB‘s recover is not necessarily limited by the amount (he, she) actually earned before the injury. However, in deciding the amount of damage, you must consider the training necessary, the success and recognition already realized, the opportunities likely to be available to AB in the future, the risk and contingencies involved in achieving success, and the overall probability of success in the chosen field. In short, what is being valued is the probability that AS would have in fact realized future earnings from

(his, her) talent.

1. Case Law

While the jury may consider the opportunity for recognition, reward and opportunity for talents that have economic value, the jury may not assume that a young student will earn the same as an established professional. Grayson v. Irvmar Realty Corp.

, 7 AD2d

436.



New York has steadfastly restricted recovery to pecuniary injuries and denied recovery for grief or anguish, loss of society, affection, conjugal fellowship and consortium. Loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death, are injuries for which damages may be recovered. Gonzalez v. New York City

Housing Authority , 572 N.E.2d 598, 601 (N.Y.1991).

1. Special Damages. N.Y. EPTL §5.4-3: ―Reasonable expenses of medical aid, nursing, and attention incident to the injury causing death and the reasonable funeral expenses of the decedent paid by the distributees . . . shall be proper elements of damages.‖

238

2. General Damages. N.Y. EPTL §5.4-3: ―The damages awarded to the plaintiff may be such sum as the jury

. . . deems to be fair and just compensation for the pecuniary injuries resulting from decedent‘s death to the persons for whose benefit the action is brought.‖ In determining the ―fair and just compensation‖ for the pecuniary loss resulting from the death of a minor to the persons for whose benefit the action is brought, the following considerations are relevant:





The minor‘s age and life expectancy;

The minor‘s state of health;

 the probability of the minor having means to support his/her parents, (if the latter are in need);

 current and probable future earnings during minority above support;

 the voluntary assistance which the minor might have given to his/her parents;

 the health, age, and condition of those for whose benefit the action is brought;

 the minor‘s earning potential -- i.e., character, quality, intelligence, present and future earnings; and

 the cost of the child‘s maintenance and education during minority.

Windus v. Baker , 67 A.D.2d 833, 834 (N.Y. App. Div. 1979); Hanson v. County of Erie , 507 N.Y.S.2d 778 (N.Y. App. Div. 1986).

A parent who does not abandon a decedent child is entitled to share the wrongful death damages with the other parent in proportion to the pecuniary injuries suffered. N.Y. EPTL § 5-4.4 (a)(1) That statutory language empowers the hearing court to determine the pecuniary loss of each parent and to distribute the damages accordingly and also serves as authority to deprive a surviving parent of a share of such damages upon a finding that no pecuniary injury was suffered by that parent. Hanson , 507 N.Y.S.2d at 779-780.

239

In determining whether a plaintiff may reasonably expect to sustain pecuniary loss as a result of the minor‘s death, it is relevant whether the minor-decedent would have been legally obligated to support the plaintiff and, if not, whether there is any evidence that the decedent would have volunteered to do so. Estate of Angelica Pesante v.

Mundell , 829 N.Y.S.2d 390, 393 (N.Y. App. Div. 2007). A parentplaintiff‘s damages also consider the probability that the parent would benefit from earnings that the child might have accumulated (not limited to minority) provided there is some adequate basis for this calculation, and it is not left to speculation. In any wrongful death action involving a child, ―the absence of dollars and cents proof of pecuniary loss does not relegate the distributees to recovery of nominal damages only but rather, since it is often impossible to furnish direct evidence of pecuniary injury, calculation of pecuniary loss is a matter resting squarely within the province of the jury.‖ Lopez v. Gomez , 305

A.D.2d 292-293 (N.Y. App. Div. 2003).

New York also permits a plaintiff in a wrongful death action to recover damages for conscious pain and suffering of the minor-decedent provided there is some evidence of such pain and suffering which may include the consideration of any terror experienced by the minor.

Estate of Angelica Pesante , 829 N.Y.S.2d at 392. Loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by the jury in assessing damages for conscious pain and suffering. Nussbaum v. Gibstein , 535

N.E.2d 618, 619 (N.Y.1989).

3. Punitive Damages. Punitive damages are recoverable if they had been recoverable in the event of the minor‘s survival. N.Y. EPTL §

5.4-3. Punitive damages can only be awarded in the event of conduct found to be wanton, reckless or malicious. Rivera v City of New York ,

836 N.Y.S. 2d 108, 113 (N.Y. App. Div. 2007).

4. Interest. N.Y. EPTL § 5.4.3 provide that a plaintiff is permitted to recover pre-judgment interest (set at 9 percent) from the date of death forward until the date of payment on any principal amount obtained by verdict or judgment.

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II. Evidentiary and other considerations

The statutory cause of action for all wrongful death cases under the New

York Estates Powers and Trusts Law (EPTL) requires proof of (1) death; (2) caused by the wrongful conduct of a defendant; (3) giving rise to a cause of action which could have been maintained, at the moment of death, by the decedent if death had not ensued; (4) survival by distributees who have suffered pecuniary loss by reason of the death; and (5) appointment of a personal representative of the decedent. N.Y. EPTL §5.4.1. The law of New York also allows a plaintiff to benefit from more liberal inferences from the evidence presented so the plaintiff has a lesser burden of proof in wrongful death cases. See Noseworthy v. City of

New York , 80 N.E. 2d 744, 751 (N.Y. 1948).

According to N.Y. EPTL §5.4-1, the proper plaintiff in a wrongful death action is the ―personal representative‖ of a decedent and that party must bring the suit within 2 years after the decedent‘s death.

III. New York Pattern Jury Instruction

New York Pattern Jury Instruction 2:320 Damages-Action for

Wrongful Death and Conscious Pain and Suffering, Including Such

Actions Based on Medical, Dental and Podiatric Malpractice

Commenced Before July 26, 2003.

The law limits damages resulting from AB‘s death to pecuniary injuries, which means economic losses. You may not consider or make any award for sorrow, mental anguish, injury to feelings, or for loss of companionship. You must determine the economic value of AB to [ list the distributees by name ] on [ give date of death ], when AB died. In determining that economic value, you should consider the character, habits and ability of AB; the circumstances and condition of [ list the distributees by name ]; the services that AB would have performed for (him, her them); the portion of (his, her) earnings that AB would have spent in the future for the care and support of [ list the distributees by name ]; the age and life expectancy of AB; the ages and life expectancies of [ list the distributees by name ]; and [ where the distributees included children ], the intellectual, moral, and physical training, guidance and assistance that AB would have given the children had (he, she) lived. You should also consider the amount, if any, by which AB, if (he, she) had lived, would have increased

(his, her) estate from (his, her) earnings and thus added to the amount that would have been inherited from (him, her), provided that you find that at

241

least one of [ list the distributees by name ] would have been alive to inherit from (him, her) had AB not died on [ state date of death ].

Your verdict will include answers to the following questions, which will be submitted to you in writing:

1. State the total amount of economic loss, if any, to each of [ list the distributees by name

] resulting from AB‘s death. [

In cases tried in the

Second Department, state: the total amount of economic loss, if any, to

( list the distributees by name

) resulting from AB‘s death, without specifying the amount of economic loss for each individual]

2. For each person for whom an award is made in your answer to

Question No. 1, state the period of years over which the amount awarded for such economic loss is intended to provide compensation.

3. State the amount awarded, if any, to AB‘s (spouse) for the following items of damages:

(a) Medical expenses;

(b) Nursing and other expenses;

(c) Funeral expenses, including any burial lot.

4. State the amount awarded for the following items of damage, if any, incurred by AB prior to (his, her) death or for which AB‘s estate is responsible:

(a) Medical expenses;

(b) Nursing and other expenses;

(c) Dental expenses;

(d) Loss of earnings;

(e) Impairment of earning ability;

(f) Custodial care;

(g) Rehabilitation services;

(h) Pain and suffering;

(i) Funeral expenses, including a burial lot.

242

If you decide not to make an award as to any item, you will insert the word ―none‖ as to that item.

243

NORTH CAROLINA

Richard Boyette

Alka Srivastava

Cranfill Sumner & Hartzog LLP

Raleigh, North Carolina

(919) 828-5100



1. Medical and other related expenses. A parent is liable for medical expenses incurred in the necessary treatment of his minor unemancipated child; therefore, the cause of action to recover for such expenses generally lies with the parent and not with the child. Kleibor v. Rogers , 144 S.E.2d 27, 29 (N.C. 1965). However, there are certain exceptions to this general rule.

The right of action to recover medical expenses after reaching the age of majority lies with the minor. If the parent waives his or her right to recover (medical expenses incurred before the minor reaches age of majority) by appearing in the action as Guardian ad litem on behalf of minor, the minor is allowed to recover the full amount to which both he and the parent were entitled. Vaughan v. Moore , 366 S.E.2d 518,

520 (N.C. App. 1988).

2. Loss of earnings or wage-earning capacity. When a minor is injured by the negligence of another, the minor may have a cause of action for loss of earning capacity after reaching the age of majority. Emanuel v.

Clewis , 158 S.E.2d 587, 590 (N.C. 1968). Therefore, it is not appropriate for a jury to consider evidence of loss of earning capacity during minority. Id.

The minor‘s cause of action is separate from the parent‘s cause of action for loss of services and earnings of the child during minority. Under North Carolina law, a minor plaintiff can support a lost earning capacity claim by presenting evidence of prior good health, gender and age. Fox-Kirk v. Hannon , 542 S.E.2d 346, 351

(N.C. App. 2001) (finding that the testimony of experts who testified as to minor plaintiff‘s ability to attend college and her future employment opportunities was competent evidence; the experts

―testified based on their own personal evaluations of [minor], a review of her additional medical records, and their expertise and training‖).


1. Pain and Suffering. Negligent injury of a minor child can gives rise to a cause of action in the child for pain and suffering. Emanuel v.

244

Clewis , 158 S.E.2d 587, 590 (N.C. 1968). See also West Through

Farris v. Tilley , 461 S.E.2d 1, 4 (N.C. Ct. App. 1995).

2. Permanent Injury.

Minor child can recover damages for permanent injury. Kleibor v. Rogers , 144 S.E.2d 27, 29 (N.C. 1965). Damages for scars or disfigurement and partial loss (or use of) body part are also recoverable.

3. Punitive Damages. Recovery of punitive damages is governed by

Chapter 1D of the North Carolina General Statutes. See N.C. Gen.

Stat. § 1D-10 (2011) (―This Chapter applies to every claim for punitive damages, regardless of whether the claim for relief is based on a statutory or a common-law right of action or based in equity.‖). The amount of punitive damages is limited to three times compensatory damages or two hundred fifty thousand dollars ($250,000), whichever is greater. N.C. Gen. Stat. § 1D-25 (2011).

Punitive damages are awarded to punish the ―outrageous nature of the wrongdoer‘s conduct.‖ Howard v. Parker , 382 S.E.2d 808, 810 (N.C.

Ct. App. 1989). Punitive damages are not awarded where the defendant‘s wrong ―amounted to no more than ordinary negligence; they can only be awarded where there is a higher level of misconduct, such as wilfulness, wantonness or recklessness that indicates at least an indifference to or a disregard for the rights and safety of others.‖

Id.

( internal citations omitted). To recover punitive damages, a plaintiff must prove the ―existence of an aggravating factor by clear and convincing evidence.‖ N.C. Gen. Stat. § 1D-15 (2011).

III. Model Jury Instructions a. Personal Injury Damages – Issues and Burden of Proof. N.C.P.I. -

Civil 810.00.

The (state number) issue reads:

―What amount is the plaintiff entitled to recover for personal injury?‖

If you have answered the (state number) issue ―Yes‖ (and the (state number) issue ―No‖) in favor of the plaintiff, the plaintiff is entitled to recover nominal damages even without proof of actual damages. Nominal damages consist of some trivial amount such as one dollar in recognition of a technical injury to the plaintiff.

The plaintiff may also be entitled to recover actual damages. On this issue the burden of proof is on the plaintiff. This means that the plaintiff must prove, by the greater weight of the evidence, the amount of actual damages [proximately caused by the negligence] [caused by the wrongful conduct] of the defendant.

245

b. Personal Injury Damages – In General. N.C.P.I. - Civil 810.02.

Actual damages are the fair compensation to be awarded to a person for any [past] [present] [future] injury [proximately caused by the negligence]

[caused by the wrongful conduct] of another.

In determining the amount, if any, you award the plaintiff, you will consider the evidence you have heard as to (each of the following types of damages):

[medical expenses]

[loss of earnings]

[pain and suffering]

[scars or disfigurement]

[(partial) loss (of use) of part of the body]

[permanent injury]

[state any other type of damage supported by the evidence].

The total of all damages are to be awarded in one lump sum. I will now explain the law of damages as it relates to each of these.


When an unemancipated minor is injured by the negligence of another, the minor‘s parents have a cause of action for medical expenses that were incurred before the child reached age of majority. The parents‘ cause of action is ―based upon their duty to care for and maintain their child.‖

Moquin v. Hedrick , 593

S.E.2d 435, 438 (N.C. Ct. App. 2004). However, a parent may waive this right to collect such medical expenses. By this waiver, the parent treats the minor as emancipated for the purpose of recovering the medical expenses, and the minor may recover such expenses arising from her or her injury. Bolkhir v. N. Carolina

State Univ.

, 365 S.E.2d 898, 902 (N.C. 1988) (internal citations omitted).

However, a minor plaintiff cannot use the parent‘s waiver to effectively extend the statute of limitations period. Vaughan v. Moore , 366 S.E.2d 518, 520

(N.C. Ct. App. 1988) (holding that plaintiff could not recover medical expenses incurred during minority because plaintiff obtained waiver from her mother more than four years after cause of action arose, which would have extended mother‘s claim beyond its three-year statute of limitations).

If the evidence shows that the minor was personally liable for medical expenses incurred as a result of the injury, the minor may recover them. Hawkins

246

v. Mauney , 190 S.E. 715, 716 (N.C. 1937) (allowing minor plaintiff to recover medical expenses because plaintiff, a married woman, assumed personal responsibility for her medical care).



1. Expenses for care, treatment and hospitalization incident to the injury resulting in death. See N.C. Gen. Stat. 28A-18-2(b)(1)

(2011). There is no limit on the amount of recovery allowed for medical and hospitalization expenses. Bowen v. Constructors Equip.

Rental Co.

, 196 S.E.2d 789, 805 (N.C. 1973). Amounts recovered in excess of $4500 are not subject to the debts of the decedent.

2. Pain and suffering. See N.C. Gen. Stat. 28A-18-2(b)(2) (2011).

However, if the beneficiary of an estate is culpably responsible for the decedent minor‘s death, that beneficiary cannot share in the administrator‘s recovery for wrongful death. Carver v. Carver , 314

S.E.2d 739, 744 (N.C. 1984) (holding that, since wrongful death of child was caused by sole negligence of the mother, the pain and suffering awarded to the child‘s estate should be reduced by half, representing the mother‘s pro-rata share).

If injury and death occur simultaneously, there can be no recovery for pain and suffering. Brown v. Moore , 213 S.E.2d 342, 348 (N.C. 1975).

3. Reasonable funeral expenses. See N.C. Gen. Stat. 28A-18-2(b)(2)

(2011).

4. Present monetary loss. Damages for the present monetary value of the decedent are recoverable by the persons entitled to receive the damages for wrongful death. This recovery is for the loss of their

―reasonably expected (i) net income of the decedent, (ii) services, protection, care and assistance of the decedent, and (iii) society, companionship, comfort, guidance, kindly offices and advice of the decedent.‖

Bowen v. Constructors Equip. Rental Co.

, 196 S.E.2d 789,

805 (N.C. 1973); N.C. Gen. Stat. §28A-18-2(b) (2011). The evidentiary issues to consider while awarding these damages include the age of the deceased and the age of the person entitled to receive the damages recovered and their relationship with the deceased. Id. Note that the damages for loss of income, etc. are losses sustained by the intestate heirs.

North Carolina courts have stated that lost income damages are not recoverable in the wrongful death of an infant because such damages would be too speculative. DiDonato v. Wortman , 358 S.E.2d 489

247

(N.C. 1987). In the case of an older child, such damages are recoverable even though ―it would be difficult, if not impossible, to formulate a rule of general application for the measurement of such damages and that some speculation must always be necessary.‖ Bahl v.

Talford , 530 S.E.2d 347, 351 (N.C. App. 2000) (internal citations omitted).

To make a showing for such damages, a plaintiff must show ―concrete manifestations of the child‘s intent to provide support‖ to the parents and that the parents ―had reasonable expectations to the child‘s income.‖ A plaintiff must show these ―manifestations‖ by direct evidence, for example using witness testimony, during trial. Id.

(refusing to allow income as an element of the damages because plaintiffs did not show that the deceased children ―had ever expressed an intent to provide any of their income to their parents‖).

5. Punitive damages.

Punitive damages may be awarded for wrongful death of the deceased through the malice or willful or wanton conduct of the defendant as defined at N.C. Gen. Stat. §10-5. N.C. Gen. Stat.

§28A-18-2(b)(5) (2011). Punitive damages issues should be submitted separately to the jury. See Jones v. McCaskill , 394 S.E.2d 254 (N.C.

Ct. App. 1990).

III. Model Jury Instruction a. Wrongful Death Damages – Issue and Burden of Proof. N.C.P.I. -

Civil 810.40.

The (state number) issue reads:

―What amount is the estate of (name deceased) entitled to recover for wrongful death?‖

If you have answered the (state number) issue ―Yes‖ (and the (state number) issue ―No‖) in favor of the estate, the estate is entitled to recover nominal damages even without proof of actual damages. Nominal damages consist of some trivial amount such as one dollar in recognition of the technical damages incurred by the estate.

The estate may also be entitled to recover actual damages. See N.C. Gen.

Stat. §28A-18-2(b). On this issue, the burden of proof is on the estate.

This means the estate must prove, by the greater weight of the evidence, the amount of actual damages [proximately caused by the negligence]

[caused by the wrongful conduct] of the defendant.

248

b. Wrongful Death Damages – In General. N.C.P.I. - Civil 810.42

Actual damages are the fair compensation to be awarded to the estate for the death of (name deceased) [proximately caused by the negligence]

[caused by the wrongful conduct] of the defendant. Such damages may include:

[expenses for care, treatment and hospitalization incident to the injury resulting in death]

[pain and suffering]

[reasonable funeral expenses]

[the present monetary value of (name deceased) to his next-of-kin].

The total of all damages are to be awarded in one lump sum. I will now explain the law of damages as it relates to (each of) these. c. Wrongful Death Damages - Medical Expenses. N.C.P.I.--Civil

810.44

Expenses for care, treatment and hospitalization include all [hospital]

[doctor] [drug] [state other] expenses reasonably paid or incurred by

(name deceased) as a [proximate result of the negligence] [result of the wrongful conduct] of the defendant.

(The parties have agreed and stipulated that (name deceased‘s) reasonable medical expenses were (state amount).) d. Wrongful Death Damages - Pain and Suffering. N.C.P.I. - Civil

810.46.

Damages for (name deceased‘s) death also include fair compensation for the actual physical pain and mental suffering experienced by (name deceased) between the time of his injury and the time of his death. You may consider:

[the nature, extent and degree of the injury(ies) sustained by (name deceased)]

[the length of time (name deceased) lived and was conscious of his pain and suffering]

[state any other factor supported by the evidence].

There is no fixed formula for valuing physical pain and mental suffering.

You will determine what is fair compensation by applying logic and common sense to the evidence.

249

e. Wrongful Death Damages - Funeral Expenses. N.C.P.I. - Civil

810.48.

Damages for (name deceased‘s) death also include all funeral (and burial) expenses reasonably paid or incurred by the estate.

(The parties have agreed and stipulated that the estate's reasonable funeral

(and burial) expenses were (state amount).)

250

NORTH DAKOTA


Rebecca L. Mann



(605) 342-1078


I.

A parent may recover compensation for economic and noneconomic damages in an action for personal injury of his minor child. N.D.C.C. § 32-03.2-

04

Damages Recoverable:

In any civil action for damages for wrongful death or injury to a person and whether arising out of breach of contract or tort, damages may be awarded by the trier of fact as follows:

1. Compensation for economic damages, which are damages arising from medical expenses and medical care, rehabilitation services, custodial care, loss of earnings and earning capacity, loss of income or support, burial costs, cost of substitute domestic services, loss of employment or business or employment opportunities and other monetary losses.

2. Compensation for noneconomic damages, which are damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, loss or illness, loss of society and companionship, loss of consortium, injury to reputation, humiliation, and other nonpecuniary damage.

N.D.C.C. § 32-03.2-04.

II. Jury Instructions

Damages. Elements of Damages (Personal Injury, NDCC 32-03.2-04)

2000. C - 70.35.

In arriving at the amount of your verdict for damages arising from personal injury, you may consider and award compensation for economic damages and compensation for non-economic damages, proximately resulting from the injury.

251

Economic Damages

The term ―economic damages‖ includes damages arising from medical expenses and medical care, rehabilitation services, custodial care, loss of earnings, loss of earning capacity, loss of income, loss of support, cost of substitute domestic services, loss of employment, loss of business, and loss of employment opportunities.

Compensation for economic damages such as medical expenses and medical care, custodial care, substitute domestic services, and rehabilitation services is measured by the reasonable value, not exceeding the actual cost of the goods or services reasonably required and actually furnished to the injured party or that are reasonably certain to be required in the future.

Compensation for economic damages such as loss of earnings, loss of earning capacity, loss of income, loss of support, loss of employment, loss of business, and loss of business opportunities is measured by the reasonable value of those losses the injured party has sustained and the reasonable value of those losses the injured party is reasonably certain to sustain in the future.

Non-economic Damages

The term ―non-economic damages‖ includes damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, fear of loss, fear of illness, loss of society and companionship, loss of consortium, injury to reputation, and humiliation.

Compensation for non-economic damages such as pain, suffering, physical impairment, disfigurement, mental anguish, emotional distress, fear of injury, fear of loss, fear of illness, injury to reputation, humiliation, and inconvenience is measured by the reasonableness of the award in the light of all the circumstances of the case. In considering the reasonableness of an award, you may consider whether the element of damage is temporary or permanent and whether in the future it can or will be averted or relieved.

Who ―owns‖ the right to sue for medical expenses? Parent or Child? If parent, does that end at the age of majority when it becomes child’s claim?

North Dakota has no authority on this issue.

252



The same economic and noneconomic damages recoverable for personal injury to a minor child are recoverable for the wrongful death of a minor child.

N.D.C.C. § 32-03.2-04

The wrongful death statute ―is not a survival statute intended to increase the estate of the deceased, but its purpose is to give a measure of protection to those persons within a fixed degree of relationship to and dependency on the deceased because of actual injury sustained by them by reason of the wrongful killing of the deceased.‖ Sheets v. Graco, Inc.

, 292 N.W.2d 63, 65 (N.D. 1980).

Damages under the wrongful death statute are ―based on the loss suffered by the beneficiaries, and not on the loss sustained by the decedent‘s estate.‖

Schneider v.

Baisch , 256 N.W.2d 370, 371–72 (N.D. 1977) (limiting recovery ―to the beneficiary‘s actual period of survival‖.) A jury determines the quantity of damages and ―shall give such damages as it finds proportionate to the injury resulting from the death to the persons entitled to the recovery.‖ N.D.C.C. § 32–

21–02.

Punitive damages are recoverable in a wrongful death action. Puppe by

Puppe v. A.C. and S., Inc.

, 733 F.Supp. 1355 (D.N.D. 1990) (applying North

Dakota law).

II. Jury Instructions a. Damages. Elements of Damages (Wrongful Death)

1995. C – 70.38.

In deciding the amount of past and future damages for wrongful death, you may consider each of the following items of damage:

1) Compensation for economic damages which are damages arising from [medical expenses and medical care,] [rehabilitative services,] [custodial care,] [loss of earnings and earning capacity,]

[loss of income or support,] [burial costs,] [costs of substitute domestic services,] [loss of employment or business or employment opportunities,] and other monetary losses; and

2) Compensation for non-economic damages which are damages arising from [pain,] [suffering,] [inconvenience,] [physical impairment,] [disfigurement,] [mental anguish,] [emotional distress,] [fear of injury, loss, or illness,] [loss of society and

253

- 70.38

companionship,] [loss of consortium,] [injury to reputation,]

[humiliation,] and other nonpecuniary damages. \ b. Loss of Consortium.

2005 - Damages C - 70.37.

When a [wife] [husband] [child] is injured [her husband] [his wife]

[his/her parents] may also have a claim. The [husband‘s] [wife‘s]

[parents‘] claim for damages may include:

1) the loss of the [wife‘s] [husband‘s] [child‘s] services and companionship [he] [she] [the parents] would have received in the course of [married life] [childhood] up to the date of trial.

2) the value of [wife‘s] [husband‘s] [child‘s] services and companionship [he] [she] [the parents] [is] [are] reasonably certain to lose in the future [during childhood].

254

OHIO

Beth Schneider Naylor

Douglas R. Dennis

FROST BROWN TODD LLC

Cincinnati, Ohio

513.651.6800



1.


Parents may recover all expenditures for medical care or treatment, rehabilitation services, or other care, treatment, services, products, or accommodations incurred as a result of the injury. E.g., Blakeman v. Condoris, 75 Ohio App.3d 393, 397, 599

N.E.2d 776 (Ct. App. 1991), ( citing Whitehead v. General Telephone

Co.

, 20 Ohio St.2d 108 (1969).

If the minor‘s cause of action accrues while the victim is still a minor, the statute of limitations will toll for the minor‘s negligence claim until the age of majority is reached. See O HIO R EV .

C ODE § 2305.16.

Although the parent‘s action for medical expenses and loss of consortium belongs to the parent during the child‘s minority, O

HIO

R

EV

.

C

ODE

§ 2305.16 states that the tolling for the minor‘s personal injury claims will also inure to the benefit of the parents‘ claims.

2. Future Medical Expenses.

3. Future Lost Wages.

If emancipated, minors may recover all wages, salaries or other compensation lost as a result of the injury. At least one case has held that if not emancipated, minors may only recover future earnings anticipated after he or she reaches the age of 18.

Bluebird Baking Co. v. McCarthy, 36 N.E.2d 801, 3 O.O. 490 (Ct.

App. 1935).

4. Property Damages.

Minors may recover all expenditures incurred to repair or replace property that was damaged or destroyed. O

HIO

R

EV

.

C ODE § 2315.18(A)(2).

3

5. Other Expenditures.

Minors may recover any other expenditure incurred as a result of the injury but may not recover attorney‘s fees incurred under economic damages. O HIO R EV .

C ODE § 2315.18(A)(2).

3

All references to the Ohio Revised Code are dated 2012. All references to the Ohio Jury

Instructions are dated Dec 11, 2010 (adopted at the Ohio Judicial Conference).

255

Evidence of collateral benefits is admissible under O HIO R EV .

C ODE §

2315.20(A) unless the source of the benefits has a mandatory federal right of subrogation, a statutory right of subrogation or a contractual right of subrogation.



Minors may recover damages including, but not limited to, pain and suffering; loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training or education; disfigurement; mental anguish; and any other intangible loss. O

HIO

R

EV

.

C

ODE

§ 2315.18(A)(4). While a cause of action belongs to the minor, it must be brought by a legal guardian on the minor‘s behalf.

E.g., Slusher v. Ohio Valley Propane Servs., 177 Ohio App. 3d 852,

896 N.E.2d 715 (Ct. App. 2008); West v. Miami Valley Hosp., 99 Ohio

Misc.2d 1, 7 (C.P. 1993). See also Grindell v. Huber, 28 Ohio St.2d

71, 75, 275 N.E.2d 614 (1971). Parents, however, may recover for loss of consortium.

Gallimore v. Children’s Hosp. Med. Ctr.,

67 Ohio

St.3d 244, 617 N.E.2d 1052 (1993).

2. Future Damages.

Minors may recover for the effects of permanency, deformity, loss of limb, loss of organ or inability to care for himself/herself independently. O

HIO

R

EV

.

C

ODE

§ 2315.18(B)(4).


Minors may recover punitive damages and those may also include attorney‘s fees. Under O

HIO

R

EV

.

C

ODE

§

2315.21(B), upon motion of either party, the court shall bifurcate the trial into two stages—compensatory damages and punitive damages.

Only if the jury finds for plaintiff on compensatory damages will the trial enter the punitive damages phase. Punitive damages are limited by O HIO R EV .

C ODE § 2315.21(D) and under O HIO R EV .

C ODE §

2315.21(F), the court, counsel and witnesses are prohibited from disclosing the statutory limitations to the jury.

4. Emotional Distress. A cause of action may be stated for the negligent infliction of emotional distress. Schultz v. Barberton Glass Co ., 4 Ohio

St.3d 131, 447 N.E.2d 109 (1983).

III. Model Jury Instructions:

1 OJI-CV 207.21

12-11-10]

Personal (injury) (damage): sample instruction [Rev.

(Lexis 2011).

1. General. You will decide by the greater weight of the evidence an amount of money that will reasonably compensate the plaintiff for the actual (injury) (damage) (proximately) (directly) caused by the

(incident).

256

2. Consideration. In deciding this amount, you will consider the nature and extent of the (injury) (damage); the effect upon physical health; the pain and suffering experienced; the ability or inability to perform usual activities; and the reasonable cost of necessary medical and hospital expenses incurred. From these you will determine what sum will compensate the plaintiff for the (injury) (damage) to date.

3. Permanent Injury and Expense. You will note that the plaintiff also claims that the injury is permanent and that he/she will experience pain and disability in the future. As to such claim(s), you may find no damage except that damage that will probably exist as a (proximate)

(direct) result of the (incident).

4. Loss of Ability to Perform Usual Functions – Permanent Disability.

If you find from the greater weight of the evidence that, as a proximate cause of the injuries sustained, the plaintiff has suffered a permanent disability that is evidenced by way of the inability to perform the usual activities of life such as the basic mechanical body movements of walking, climbing stairs, feeding oneself, driving a car, [and so forth], or by way of the inability to perform the plaintiff‘s usual specific activities that had given pleasure to this particular plaintiff, you may consider, and make a separate award for, such damages.

Any amounts that you have determined will be awarded to the plaintiff for any element of damages shall not be considered again or added to any other element of damages. You shall be cautious in your consideration of the damages not to overlap or duplicate the amounts of your award that would result in double damages. For example, any amount of damages awarded to the plaintiff for pain and suffering must not be awarded again as an element of damages for the plaintiff‘s inability to perform usual activities. In like manner, any amount of damages awarded to the plaintiff for the inability to perform usual activities must not be considered again as an element of damages awarded for the plaintiff‘s pain and suffering, or any other element of damages.

5. Speculation. You are not to speculate regarding (permanent) (future) damages. The law deals in probabilities and not mere possibilities. In deciding (permanent) (future) damages, you may consider only those things that you find from the evidence are reasonably certain to continue.

6. Reasonably Certain. ―Reasonably certain‖ means probable, that is, more likely to occur than not.

257

See also 1 OJI-CV 315.01

Personal injury: tort actions (claims arising on and after 4/7/05) [Rev. 8-11-10] (Lexis 2011); 1 OJI-CV 407.23

Children: Damages, injury [Rev. 12-11-10] (Lexis 2011); 1 OJI-CV 315.03

Consortium [Rev. 12-11-

10] (Lexis 2011); 1 OJI-CV 315.37

Punitive Damages [Rev. 12-11-10] (Lexis

2011) for more tailored or specific requirements.


Parents may recover all expenditures for medical care or treatment, rehabilitation services, or other care, treatment, services, products, or accommodations incurred as a result of the injury. E.g., Blakeman v. Condoris, 75

Ohio App.3d 393, 397, 599 N.E.2d 776 (Ct. App. 1991). However, the parents claim for medical expenses terminates upon emancipation of the minor, at which time, the claim for medical expenses belong to the injured party. Bagyi v. Miller,

3 Ohio App.2d 371, 210 N.E.2d 887 (Ohio App. 1965).


I. Wrongful Death of a Minor (who may bring suit):

Section 2125.01 et seq. of the Ohio Revised Code creates a wrongful death claim in Ohio. Suit must be brought in the name of the decedent‘s personal representative, and is for the exclusive benefit of the surviving parent(s). O

HIO

R

EV

.

C

ODE

§ 2125.02(A)(1). See also Ramsey v. Neiman, 69 Ohio St.3d 508, 513,

634 N.E.2d 508 (1994). There is a presumption of injury to the surviving parents when the decedent is a minor child instead of an adult child. E.g., Reeder v.

Suggs , No. 1-81-46, 1982 WL 6822, at *7 (Ohio Ct. App. Jun. 29, 1982). This is because parents are legally entitled to the services of a minor child. Id.

A parent who abandoned the decedent minor cannot recover for wrongful death. O HIO R EV .

C ODE § 2125.02(E)(1). A parent ―abandons‖ a minor if that parent, without justifiable cause, fails to communicate, care for, or provide financial assistance for the minor for a period of one year prior to the minor‘s death.

See Keybank Nat’l Assoc. v. Hanns,

No. 22692, 2009-Ohio-1935, ¶21 (Ct.

App. Apr. 24, 2009).

Stepparents and other individuals acting in loco parentis to the minor can only recover damages under specific circumstances. If clear-and-convincing evidence: (1) the natural parents have disclaimed their parental rights in the minor; (2) the one claiming parenthood has performed the obligations of parenthood for a substantial period of time; (3) the individual claiming to be a parent has held him or herself out as being the minor‘s parent for a substantial period of time; and (4) the relationship between the minor and the one claiming parenthood has been publicly recognized. E.g., Miller v. Boden , 103 Ohio App.3d

73, 75–76, 658 N.E.2d 809 (Ct. App. 1995), citing Lawson v. Atwood, 42 Ohio

St.3d 69, 536 N.E.2d 1167 (1989).

258

II. Wrongful Death Damages:

1. Burial and Funeral Expenses. The jury may award the decedent‘s reasonable burial and funeral expenses, but this award must be set forth separately from the rest of the verdict. O

HIO

R

EV

.

C

ODE

§

2125.03(B); 1 OJI-CV 315.37.

2. Property Damages.

Minors may recover all expenditures incurred to repair or replace property that was damaged or destroyed. O

HIO

R

EV

.

C

ODE

§ 2315.18(A)(2).

3. Life Expectancy . The jury may award damages related to the decedent minor‘s earnings potential.

See Howard v. Seidler, 116 Ohio

App.3d 800, 812, 689 N.E.2d 572 (Ct. App. 1996). This includes whether the minor would have provided support to parents, as well as age, sex, physical and mental condition, and potential for educational advancement and earnings capacity. Id.

4. Loss of Services. Parents can recover for loss of services, society, companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training or education suffered.

O

HIO

R

EV

.

C

ODE

§ 2125.02(B)(2) and (B)(3).

5. Mental Anguish. Parents can recover based on mental anguish. O

HIO

R

EV

.

C

ODE

§ 2125.02(B)(5).


Minors may recover punitive damages and those may also include attorney‘s fees. Under O

HIO R EV .

C ODE §

2315.21(B), upon motion of either party, the court shall bifurcate the trial into two stages—compensatory damages and punitive damages.

Only if the jury finds for plaintiff on compensatory damages will the trial enter the punitive damages phase. Punitive damages are limited by O

HIO

R

EV

.

C

ODE

§ 2315.21(D) and under O

HIO

R

EV

.

C

ODE

§

2315.21(F), the court, counsel and witnesses are prohibited from disclosing the statutory limitations to the jury.


1 OJI-CV 315.47

1 OJI CV 315.49

Death, compensatory damages [Rev. 12-11-10] (Lexis

2011).

Death, pecuniary injury [Rev. 12-11-10] (Lexis 2011);

1.

If you find for the plaintiff, you will determine what sum of money will compensate the beneficiaries for their pecuniary loss. Pecuniary loss means such loss as is suffered by the beneficiaries that can be measured by a monetary value. This includes the financial support and assistance the beneficiaries might reasonably have received from the decedent from his earnings during his life, an amount the decedent

259

might reasonably have left to his beneficiaries if he predeceased them, and the value of (services) (care, advice, and training) which the beneficiaries might reasonably have received from the decedent during his lifetime..

2. In addition to an award of damages for pecuniary loss, you may make an award for reasonable funeral expenses if these expenses are established by the evidence.

3. The term pecuniary loss does not include such elements as bereavement, mental pain and suffering of the beneficiaries or the loss of the society, comfort or companionship of the deceased.

260

OKLAHOMA

Darren VanPuymbrouck

Deborah Bone

Schiff Hardin, LLP


(312) 258-5500



Oklahoma statute provides that the amount of compensation for economic losses shall not be subject to any limitation. O

KLA

.

S

TAT

. 23 § 61.2 (A).

Available economic damages include compensation for:

1. Loss of Earning Capacity.

Minor‘s impairment of earning capacity after reaching eighteen years of age is a recoverable expense. See

Atchison, T. & S.F.R.R. v. Coulson , 371 P.2d. 914, 919 (Okla. 1962).

In order to recover, the minor must show some evidence that the injury is likely to impair future earning capacity, but need not rely on the minor‘s prior work history or education.

Hembree v. Southard , 339

P.2d 771, 777-78 (Okla. 1959). Any loss of earnings which it is reasonably probable the minor would have received but for the injuries is recoverable. City of Miami v. Finley , 240 P. 317, 319 (Okla. 1925).

b. Medical Expenses.

Reasonable expenses of necessary medical care, treatment, and services required after reaching eighteen years of age. See Bready v. Tipton , 407 P.2d 194, 205 (Okla. 1965).

2. Economic loss of Parent.

Medical Expenses. Parents of an injured minor can bring suit to recover reasonable expenses of the necessary medical care, treatment, and services the parent has incurred on behalf of the minor or will incur in the future from now until the minor reaches the age of eighteen years of age. Stinchcomb v. Holder , 116 P.2d 891, 891 (Okla.

1941).

Loss of Wages and Services. Parent may recover any loss of past earnings of the minor, loss of future earnings until the minor reaches the age of eighteen, loss of household services of the minor, and loss of household services which the minor would have provided between now and the age of eighteen. See Indep. Sch. Dist. I-29 v. Crawford ,

688 P.2d 1291, 1294 (Okla. 1984).


Generally, punitive damages may not exceed the greater of $100,000 or compensatory damages. If the jury finds that

261

the defendant acted with malice or an insurer intentionally acted in bad faith, however, punitive damages may not exceed the greater of

$500,000 or two times compensatory damages or the amount of the increased financial gain to the defendant. O

KLA

.

S

TAT

. 23 § 9.1;

American Nat. Bank & Trust Co. of Sapulpa v. BIC Corp.

, 880 P.2d

420, 425-26 (Okla. Civ. App. 1994).


Oklahoma statute provides that compensation for noneconomic losses shall not exceed $400,000 regardless of the number of parties against whom the action is brought or the number of actions brought. O

KLA

.

S

TAT

. 23 § 61.2 (B)

(2010). This limitation does not apply in instances where the trier of fact finds that the minor has suffered: (1) permanent and substantial physical abnormality or disfigurement; (2) permanent physical functional injury which prevents them from being able to independently care for themselves and perform life sustaining activities; or (3) the defendant‘s acts were in reckless disregard, grossly negligent, fraudulent, or intentional. Id . §§ (C)(D). Available noneconomic damages include compensation for:


Past and future physical and mental pain and suffering is a recoverable loss. See Shebester, Inc. v. Ford , 361 P.2d

200, 202-03 (Okla. 1961).

2. Physical Injury or Disfigurement.

Minor‘s physical impairment, injury, or disfigurement is a recoverable loss. See Rolater v. Strain ,

137 P. 96, 99 (Okla. 1913).

III. Jury Instructions a. Personal Injuries – Minor Child.

Vernon's Okla. Forms 2d, OUJI-

CIV 4.2 (2011 ed.).

If you decide for [Plaintiff], you must then fix the amount of [his/her] damages. This is the amount of money that will reasonably and fairly compensate [him/her] for the injury sustained as a result of the

[negligence/(wrongful conduct)] of [Defendant].

In fixing the amount you will award [him/her] you may consider the following elements:

A. [His/Her] physical pain and suffering, past and future;

B. [His/Her] mental pain and suffering, past and future;

C. [His/Her] age;

262

D. [His/Her] physical condition immediately before and after the accident.

E. The nature and extent of [his/her] injuries;

F. Whether the injuries are permanent;

G. The physical impairment;

H. The disfigurement;

I. The impairment of earning capacity after reaching the age of eighteen years;

J. The reasonable expenses of necessary medical care, treatment and services required after reaching the age of eighteen years b. Personal Injuries – Minor Child – Measure of Parent’s or

Guardian’s Damages. Vernon's Okla. Forms 2d, OUJI-CIV 4.3 (2011 ed.).

If you decide for [name of plaintiff's parent or guardian], you must then fix the amount of [his/her] damages. This is the amount of money, that will reasonably and fairly compensate [him/her] for the loss sustained as a result of the [negligence/(wrongful conduct)] of [Defendant].

In fixing the amount you will award [name of plaintiff's parent or guardian], you may consider the following elements:

A. The reasonable expenses of the necessary medical care, treatment and services [he/she] has incurred in behalf of [name of minor child] or will incur in the future from now until [name of minor child] reaches the age of eighteen years;

B. Any loss of past earnings of [name of minor child];

C. Any future loss of earnings or impairment of earning capacity of [name of minor child] from now until [he/she] reaches the age of eighteen years;

D. Any loss of past household and similar services which [name of minor child] would have given [name of plaintiff's parent or guardian];

E. Any loss of household and similar services which [name of minor child] would have given [name of plaintiff's parent or guardian] between now and the time [he/she] reaches the age of eighteen years. c. Personal Injuries – Minor Child – Loss of Earnings.

Vernon's Okla.

Forms 2d, OUJI-CIV 4.4 (2011 ed.).

263

The services and earnings of the minor child, [name of minor child], before [marriage/(reaching the age of eighteen years)] belong to [name of parent or guardian, etc.]. Earnings of the minor child] after

[marriage/(reaching the age of eighteen years)] belong to the child. d. Exemplary or Punitive Damages – First Stage. Vernon's Okla.


If you find in favor of [Plaintiff] , and grant [him/her] actual damages, then you must also find by a separate verdict, whether [Defendant] (acted in reckless disregard of the rights of others) (and/or) (acted intentionally and with malice towards others).

[Plaintiff] has the burden of proving this by clear and convincing evidence. By that I mean that you must be persuaded, considering all the evidence in the case, that the proposition on which the party has this burden of proof is highly probable and free from serious doubt.

[The conduct of [Defendant] was in reckless disregard of another's rights if [Defendant] was either aware, or did not care, that there was a substantial and unnecessary risk that [his/her/its] conduct would cause serious injury to others. In order for the conduct to be in reckless disregard of another's rights, it must have been unreasonable under the circumstances, and also there must have been a high probability that the conduct would cause serious harm to another person.]

[Malice involves either hatred, spite, or ill-will, or else the doing of a wrongful act intentionally without just cause or excuse.]

If you find that [Defendant] acted (in reckless disregard of the rights of others) or (intentionally and with malice towards others), you may award punitive damages against [Defendant] in a later part of this trial. If you find that [Defendant] did not act (in reckless disregard of the rights of others) or (intentionally and with malice towards others), you may not award punitive damages against [Defendant] . e. Exemplary or Punitive Damages – Second Stage. Vernon's Okla.


Ladies and Gentlemen of the jury, you have found in favor of the plaintiff and granted him/her actual damages, and you have also found by a separate verdict that the defendant (acted with reckless disregard of the rights of others) (and/or) (acted intentionally and with malice towards others).

264

You may now, in addition to actual damages, grant the plaintiff punitive damages in such sum as you reasonably believe will punish defendant and be an example to others.

Punitive damages are not to be considered as compensation to [Plaintiff] , but as punishment to [Defendant] , and as an example to others to deter them from like conduct. The law does not require you to award punitive damages, and if you do so, you must use sound reason in setting the amount. You should be aware that the purpose of punitive damages is to punish and not destroy a defendant.

[You may consider evidence of actual harm to others in determining the seriousness of the hazard to the public and thus whether the conduct that harmed the plaintiff was particularly reprehensible or bad. Conduct that risks harm to many may be more reprehensible than conduct that risks harm to only a few. However, you may not use punitive damages to punish [Defendant] directly on account of harms that [Defendant] may have caused to others.]

In determining the amount of punitive damages, you may consider the following factors:

1. The seriousness of the hazard to the public arising from

[Defendant] 's misconduct;

2. The profitability of the misconduct to [Defendant] ;

3. How long the conduct lasted and whether it is likely to continue;

4. Whether there were attempts to conceal the misconduct;

5. How aware [Defendant] was of the conduct and its consequences and how aware [Defendant] was of the hazard and of its excessiveness;

6. The attitude and conduct of [Defendant] upon finding out about the misconduct/hazard;

7. The financial condition of [Defendant] ;

8. (If the defendant is a corporation or other entity) The number and level of employees involved in causing or concealing the misconduct.

In no event should the punitive damages exceed the greater of: (Select

One)

[$100,000.00 or the amount of actual damages you have previously awarded].

265

OR

[$500,000.00, or twice the amount of actual damages you have previously awarded, or the increased financial benefit derived by the defendant as a direct result of the conduct causing the injury to the plaintiff].


Parents have the right to sue for compensation of medical expenses incurred before the minor reaches the age of eighteen. See Boyett v. Airline

Lumber Co.

, 277 P.2d 676, 679-80 (Okla. 1954). The right to sue for medical expenses incurred after the minor reaches the age of eighteen belongs to the minor. Bready v. Tipton , 407 P.2d 194, 205 (Okla. 1965). Parents can assign their right to recover to the minor child by bringing suit on behalf of the minor child instead of bringing an individual claim. O

KLA

.

S

TAT

. 10 § 17.1.



The Oklahoma Constitution forbids statutory limitations on compensation available in wrongful death suits. O

KLA

.

C

ONST

. Art. 23 § 7.

1. Medical and Burial Expenses.

Oklahoma statute provides for the compensation of the loss of companionship and love of the child.

O

KLA

.

S

TAT

. 12 § 1055.

2. Loss of Service and Support.

Oklahoma statute provides for the compensation of the loss of anticipated services and support, and the loss of monies expended by parents or guardian in support, maintenance and education of minor child. Id.


The Oklahoma Constitution forbids statutory limitations on compensation available in wrongful death suits. O

KLA

.

C

ONST

. Art. 23 § 7.

1. Loss of Companionship and Love of the Child.

Oklahoma statute provides for the compensation of the loss of companionship and love of the child. O

KLA

.

S

TAT

. 12 § 1055.

2. Destruction of the Parent/child Relationship.

Oklahoma statute provides for the compensation of the destruction of the parent child relationship. Id.

266


The Oklahoma Supreme Court extended the availability of punitive damages to minor wrongful death suits. Roach v. Jimmy D. Enterprises, Ltd.

, 912 P.2d 852, 856 (Okla. 1996); O

KLA

.

S

TAT

. 12 § 1053. Generally, punitive damages may not exceed the greater of $100,000 or compensatory damages. If the jury finds that the defendant acted with malice or an insurer intentionally acted in bad faith, however, punitive damages may not exceed the greater of

$500,000 or two times compensatory damages or the amount of the increased financial gain to the defendant. O KLA .

S TAT . 23 § 9.1.

III. Jury Instructions a. Damages for Wrongful Death of a Minor Child. Vernon's Okla.


[Plaintiff] in this action sues to recover damages for the death of [name of decedent], a minor child.

If you decide for the [Plaintiff] on the question of liability, in determining the amount of damages [he/she] is entitled to recover, you may consider the following items: a. The medical and burial expenses; b. Loss by the parents of anticipated services and support; c. Loss by the parents of companionship and love of the child; d. Destruction of the parent-child relationship; e. Loss of monies expended by the parents [or the guardian, if applicable] in the support, maintenance and education of [name of decedent];

You must fix the amount of money which will reasonably and fairly compensate for those above-named elements of damage, which you find were directly caused by the [negligence/wrongful conduct] of [Defendant]. b. Exemplary or Punitive Damages – First Stage. Vernon's Okla.


If you find in favor of [Plaintiff] , and grant [him/her] actual damages, then you must also find by a separate verdict, whether [Defendant] (acted in reckless disregard of the rights of others) (and/or) (acted intentionally and with malice towards others).

[Plaintiff] has the burden of proving this by clear and convincing evidence. By that I mean that you must be persuaded, considering all the

267

evidence in the case, that the proposition on which the party has this burden of proof is highly probable and free from serious doubt.

[The conduct of [Defendant] was in reckless disregard of another's rights if [Defendant] was either aware, or did not care, that there was a substantial and unnecessary risk that [his/her/its] conduct would cause serious injury to others. In order for the conduct to be in reckless disregard of another's rights, it must have been unreasonable under the circumstances, and also there must have been a high probability that the conduct would cause serious harm to another person.]

[Malice involves either hatred, spite, or ill-will, or else the doing of a wrongful act intentionally without just cause or excuse.]

If you find that [Defendant] acted (in reckless disregard of the rights of others) or (intentionally and with malice towards others), you may award punitive damages against [Defendant] in a later part of this trial. If you find that [Defendant] did not act (in reckless disregard of the rights of others) or (intentionally and with malice towards others), you may not award punitive damages against [Defendant] . c. Exemplary or Punitive Damages – Second Stage. Vernon's Okla.


Ladies and Gentlemen of the jury, you have found in favor of the plaintiff and granted him/her actual damages, and you have also found by a separate verdict that the defendant (acted with reckless disregard of the rights of others) (and/or) (acted intentionally and with malice towards others) .

You may now, in addition to actual damages, grant the plaintiff punitive damages in such sum as you reasonably believe will punish defendant and be an example to others.

Punitive damages are not to be considered as compensation to [Plaintiff] , but as punishment to [Defendant] , and as an example to others to deter them from like conduct. The law does not require you to award punitive damages, and if you do so, you must use sound reason in setting the amount. You should be aware that the purpose of punitive damages is to punish and not destroy a defendant.

[You may consider evidence of actual harm to others in determining the seriousness of the hazard to the public and thus whether the conduct that harmed the plaintiff was particularly reprehensible or bad. Conduct that risks harm to many may be more reprehensible than conduct that risks harm to only a few. However, you may not use punitive damages to

268

punish [Defendant] directly on account of harms that [Defendant] may have caused to others.]

In determining the amount of punitive damages, you may consider the following factors:

1. The seriousness of the hazard to the public arising from

[Defendant] 's misconduct;

2. The profitability of the misconduct to [Defendant] ;

3. How long the conduct lasted and whether it is likely to continue;

4. Whether there were attempts to conceal the misconduct;

5. How aware [Defendant] was of the conduct and its consequences and how aware [Defendant] was of the hazard and of its excessiveness;

6. The attitude and conduct of [Defendant] upon finding out about the misconduct/hazard;

7. The financial condition of [Defendant] ;

8. (If the defendant is a corporation or other entity) The number and level of employees involved in causing or concealing the misconduct.

In no event should the punitive damages exceed the greater of: (Select

One)

[$100,000.00 or the amount of actual damages you have previously awarded].

OR

[$500,000.00, or twice the amount of actual damages you have previously awarded, or the increased financial benefit derived by the defendant as a direct result of the conduct causing the injury to the plaintiff].

269

OREGON

Robert F. Friedman

Harman Claytor Corrigan & Wellman, P.C.


(804) 747-5200



1. Medical Expenses. Medical expenses may be recovered by the parent of the injured minor. Further, it is possible for medical expenses to be recovered on behalf of the minor herself. See Palmore v. Kirkland

Laboratories, Inc.

, 270 Or. 294, 306 527 P.2d 391, 396 (1974).

2. Future Medical Expenses. Under Oregon law, a plaintiff may recover for future medical expenses. See Zehr v. Haugen , 318 Or. 647, 657,

871 P.2d 1006, 1011 (1994).

3. Future Lost Wages. As a general rule, ― any evidence which would indicate fairly the capacity of the plaintiff to earn money in his vocation, and the probability of his being able to do so in the future should be admitted; but, where such evidence consists of mere quesswork and speculation upon which might happen in the future, it should be excluded.‖

Brown v. O. -W.R. & N. Co.

, 63 Or. 396, 128 P.

38 (1912). This rule has been held to apply to minors as well. Holder v. Petty , 267 Or. 94, 101, 514 P.2d 1105, 1108 (1973).


A parent may recover for the loss of a child‘s services. See Jones v. Flannigan , 270 Or. 121, 526 P.2d 543 (1974).


Under O.R.S. § 30.010, which allows a parent to maintain a cause of action for an injured child, a parent may not recover for loss of the child‘s society and companionship. Beerbower v. State ex rel. Oregon Health Sciences

University , 85 Or.App. 330, 334-35, 736 P.2d 596, 598-

99 (Or.App.,1987).


1.

Pain and Suffering. A child may recover for noneconomic damages.

See Clarke v. Oregon Health Sciences University , 343 Or. 581, 175

P.3d 418 (2007). The previous statute capping noneconomic damages to $500,000 has been recognized as unconstitutional by the Oregon

270

Supreme Court. See Lakin v. Senco Products, Inc .

, 329 Or. 62, 987

P.2d 463 (1999).

Who ―owns‖ the right to sue for medical expenses?

Although the parent traditionally ―owns‖ the right to sue for medical expenses, a claim may be brought, with the consent of the parents, by the guardian ad litem on behalf of the child . ―It is generally held that medical expenses incurred due to the negligent injury of a minor unemancipated child are damages suffered by the parent and not the child. This rule is consistent with ORS

109.010 which places responsibility on the parents to maintain their children, and with ORS 109.020 which limits access to the child's estate for the payment of his expenses.‖

Palmore v. Kirkland Laboratories, Inc.

, 270 Or. 294, 305-06, 527 P.2d

391, 396 (1974). Nevertheless, ―[e]ven though the medical expense damage has been incurred by the parents, the Oregon Legislature has determined that such damage may be sought in an action brought by the parent on behalf of the child.‖

Id.

at 306.

O.R.S. § 31.700 provides:

(1) When the guardian ad litem of a child maintains a cause of action for recovery of damages to the child caused by a wrongful act, the parent, parents, or conservator of the estate of the child may file a consent accompanying the complaint of the guardian ad litem to include in the cause of action the damages as, in all the circumstances of the case, may be just, and will reasonably and fairly compensate for the doctor, hospital and medical expenses caused by the injury.

(2) If the consent is filed as provided in subsection (1) of this section and the court allows the filing, no court shall entertain a cause of action by the parent, parents or conservator for doctor, hospital or medical expenses caused by the injury.


A parent has no independent right to recover for the wrongful death of a child; instead, the action must be brought by the representative of the decedent minor‘s estate.

Dasteur v. American Economy Ins. Co.

, 127 Or.App. 686,689-90

874 P.2d 85, 87 (1994) The personal representative may bring suit on behalf of the deceased minor child provided that, under the law of intestate succession of the state of the minor's domicile,the parent would be entitled to inherit the personal property of the minor. See O.R.S. § 30.020 (2011).

271


O.R.S. § 30.020 provides:

(1) When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent's surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent's domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission.


In a wrongful death action, damages for the parents of the deceased minor ―are not limited to the loss of services and support.‖

Miller v. Tri-County

Metropolitan District ,241 Or.App. 86, 91,250 P.3d 27, 29 (2011).

O.R.S. § 30.020 – Wrongful death action; commencement; damages – provides:

(2) In an action under this section damages may be awarded in an amount which: a) Includes reasonable charges necessarily incurred for doctors' services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent; b) Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent's death; c) Justly, fairly and reasonably compensates for pecuniary loss to the decedent's estate; d) Justly, fairly and reasonably compensates the decedent's spouse, children, stepchildren, stepparents and parents for pecuniary loss and for loss of the society, companionship and services of the decedent; and e) Separately stated in finding or verdict, the punitive damages, if any, which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived.

272

PENNSYLVANIA

Katherine J. Sullivan

Deasey, Mahoney, Valentini & North, Ltd.


(215) 587-9400



1.

Property Damages. Property damages are recoverable.

2.

Medical and Other Related Expenses.

Medical and other related expenses are recoverable. Under Pennsylvania law, a tortfeasor is liable for damages that are reasonably foreseeable consequences of his action. Dougherty v. McLaughlin , 432 Pa. Super. 129, 637 A.2d 1017

(1994)

3.

Loss of Wages or Wage-Earning Capacity.

Loss of wages and loss of earning capacity are compensable under Pennsylvania law. Wolf v.

C. Schmidt & Sons Brewing Company , 236 Pa. 240, 84 A. 778 (Pa.

1912). Although expert testimony is not required to show loss of earning capacity, either party in a negligence action is entitled to introduce expert or other evidence to establish or refute actual expected future earning capacity of a particular plaintiff. Fish v.

Gosnell , 316 Pa. Superior Ct. 565, 463 A.2d 1042 (1983).

Pennsylvania considers the impact of inflation and productivity as integral factors to be included in computing lost future earnings.

Kaczkowski v. Bolubasz , 491 Pa. 561 (Pa. 1980).


1.

Hedonic Damages.

Loss of life‘s pleasures are compensable under

Pennsylvania law. Under Pennsylvania law, loss of life‘s pleasures are interrelated with pain and suffering. Carpinet v. Mitchell , 2004 PA

Super 197; 853 A.2d 366 (Pa. Super. 2004).

2.


Pennsylvania has adopted Section 908(2) of the

Restatement (Second) of Torts regarding the imposition of punitive damages. Feld v. Merriam , 506 Pa. 383, 485 A.2d 742, 747 (1984);

Chambers v. Montgomery , 411 Pa. 339, 192 A.2d 355, 358 (1963).

Section 908(2) states:

Punitive damages may be awarded for conduct that is outrageous because of the defendant‘s evil motive or his

273

reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant‘s act, the nature and extent of the harm to the plaintiff that defendant caused or intended to cause and the wealth of the defendant.

Comment b to Section 908 provides further guidance in determining the character and nature of the conduct for which punitive damages may be imposed, and that comment provides that:

Since the purpose of punitive damages is not compensation of the plaintiff, but the punishment of the defendant and deterrence, these damages can be awarded only for conduct for which this remedy is appropriate - which is to say, conduct involving some element of outrage similar to that usually found in crime . The conduct must be outrageous either because of the defendant‘s acts were done with an evil motive or because they were done with reckless indifference to the rights of others.

Restatement (Second) of Torts, §908 Comment b (emphasis supplied).

3.

Emotional Distress . Claims for emotional distress are compensable, however, Pennsylvania generally denies these claims unless they are accompanied by a physical symptom or injury. Armstrong v. Paoli

Hospital , 633 A.2d 605 (Pa. Super. 1993).


7.10 Lump Sum Damages

The damages recoverable by the Plaintiff in this case and the items that go to make them up, each of which I will discuss separately, are as follows:

1.

2.

3.

Pain and suffering

Past lost wages

Loss of future wage

________

________

________

Total: $________


274

Under Pennsylvania law, personal injury to a minor gives rise to two separate and distinct causes of action, one the parents claim for medical expenses and loss of the minor's services during minority, the other the minor's claim for pain and suffering and for losses after minority. Hathi v. Krewstown Park

Apartments , 385 Pa. Super. 613 (1989).


Under Pennsylvania law, recovery for damages to a minor decedent can be made by relying on one of two statutes: Pennsylvania‘s Wrongful Death Act, 42

Pa. C.S. § 8301 and Pennsylvania‘s Survival Act, 42 Pa. C.S. § 8302.

I. Wrongful Death of a Minor

An action for wrongful death may be brought by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death. 42 Pa.C.S. § 8301(d); Pa.R.Civ.P.

2202(a). The damages recovered are not part of decedent's estate, but are compensation to individual members of the family for their loss.

A survival action is not a new cause of action but one which "merely continues in [the decedent's] personal representatives the right of action which accrued to the deceased at common law because of the tort." Pezzulli v.

D'Ambrosia , 26 A.2d 659 (Pa. 1942); 42 Pa.C.S. § 8302. The damages here are measured by the pecuniary loss to decedent. Fisher v. Dye, 125 A.2d 472 (Pa.

1956).

Pursuant to Pa.R.Civ.P. 213(e), the two causes of action may be enforced in one action, and if independent actions are instituted, they must be consolidated for trial. However even though the two actions have been consolidated, a jury must bring in a separate verdict for each cause of action. Feldman, Pennsylvania

Trial Guide § 33.6. In addition, actions for damages under the two acts are cumulative, not alternative, and are not to overlap or result in duplication of damages. Pezulli v. D'Ambrosia , 344 Pa. 643, 26 A.2d 659 (1942). See generally

Schwab v. P.J. Oesterling & Son, Inc ., 386 Pa. 388, 126 A.2d 418 (1956).

II. Economic Damages

1.

Property Damages . Property damages are recoverable.

2.

Funeral, Medical and Other Related Expenses . Funeral, medical and other related expenses are recoverable under Pennsylvania‘s

Wrongful Death Act. 42 Pa. C.S. § 8301.

275

3.

Loss of Wages or Wage-Earning Capacity . Under the Pennsylvania

Survival Act, 42 Pa. C.S. § 8302, lost wages and loss of future earnings are recoverable, less the cost of maintenance, from the time of decedent‘s death until the end of his lifespan.

Kiser v. Schulte, 648

A.2d 1 (Pa.1994).

III.

Noneconomic Damages

1.

Loss of Society and Companionship . Pennsylvania allows a parent to sue for the lost value of an injured child's services, but recognizes no such cause of action for a parent's loss of a child's consortium. Cheskiewicz v. Aventis Pasteur, Inc ., 843 A.2d 1258 (Pa.

Super. 2004).

2.

Pain and Suffering . A claim for pain and suffering may be made pursuant to the Survival Act for the pain and suffering sustained by the minor decedent from the time of the occurrence until the minor‘s death. Pain and suffering may not be recovered under a claim based solely on Pennsylvania‘s Wrongful Death Act.

3.

Punitive Damages

. Under Pennsylvania law, ―punitive damages are not permitted in a wrongful death action.‖

MacLeod v. Russo , 2010

Pa. Dist. & Cnty. Dec. LEXIS 219 (Pa. County Ct. 2010) (citing

Harvey v. Hassinger , 461 A.2d 814, 815 (Pa.Super.,1983)). However, punitive damages are recoverable in a Survival Act claim, and accordingly, may be pleaded in a Complaint that seeks relief under both the Wrongful Death Act and the Survival Act.

4.

Loss of Enjoyment of Life

. In Pennsylvania, ―loss of life‘s pleasures is not a separate element of damages in survival act claims, but rather a component of the pain and suffering endured from the time between the accident until death.‖

MacLeod v. Russo , 2010 Pa. Dist. & Cnty.

Dec. LEXIS 219 (Pa. County Ct. 2010) (citing Willinger v. Mercy

Catholic Medical Center of Southeastern Pennsylvania , Fitzgerald

Mercy Division , 393 A.2d 1188, 1191 (Pa. 1978)).

5.

Emotional Distress . Generally, a plaintiff establishes a cause of action for negligent infliction of emotional distress in Pennsylvania when the following criteria are met: (1) plaintiff was located near the scene of the accident as opposed to being a distance away from it; (2) the shock resulted from the direct emotional impact upon plaintiff of the sensory and contemporaneous observance of the accident, as contrasted with learning of it from others afterward; and (3) plaintiff and the victim were closely related. Neff v. Lasso , 555 A.2d 1304, 1308 (Pa. Super.

1989). Claims for emotional distress are compensable, however,

276

Pennsylvania generally denies these claims unless they are accompanied by a physical symptom or injury. Armstrong v. Paoli

Hospital , 633 A.2d 605 (Pa. Super. 1993).

IV. Jury Instructions

Damages in Wrongful Death and Survival Actions.

Pennsylvania

Suggested Standard Civil jury Instructions7.220

When a person dies, the damages they would have been entitled to go to their estate or survivors. The estate and survivors are just as entitled to these damages as the deceased person would have been had [he] [she] survived.

The plaintiff, as the [administrator] [administratrix] of the estate of the decedent, claims damages under the Wrongful Death Act and the Survival

Act. [He] [She] is entitled to make claim under both acts, but the damages must not overlap or duplicate themselves.

A. Under the Wrongful Death Act, the damages recoverable by the plaintiff are as follows:

1. The plaintiff is entitled to be awarded an amount that will cover all hospital, medical, funeral, burial, and estate administration expenses incurred. [It has been stipulated that these expenses amount to $ [amount].]

2. The plaintiff is entitled to be awarded an amount that will fairly and adequately compensate the family of the decedent (wife, children, parents, etc.) for their loss of any contributions they would have received between the time of the death of the decedent and today. This includes all amounts of money that the decedent would have spent for or given to [his] [her] family for such items as shelter, food, clothing, medical care, education, entertainment, gifts, and recreation.

3. The plaintiff is entitled to be awarded the value of all sums that the decedent would have contributed to the support of [his] [her] family between today and the end of [his] [her] life expectancy.

4. In addition to the monetary contributions that the decedent would have contributed to [his] [her] family's support, the plaintiff is entitled to be awarded a sum that will fairly and adequately compensate [his] [her] family for the monetary value of the services, society, and comfort that [he] [she] would have given to

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[his] [her] family had [he] [she] lived, including such elements as work around the home, provision of physical comforts and services, and provision of society and comfort.

5. The plaintiff, on behalf of the surviving children, is entitled to be awarded an amount that will fairly compensate for the loss of the services that the decedent as a [father] [mother] would have contributed to [his] [her] children. It will be your duty to consider the monetary value of such services as guidance, tutelage, and moral upbringing that you believe the children would have received, up to the time you believe such services would have been provided, had the death not occurred.

B. Under the Survival Act, the damages recoverable by the plaintiff are as follows:

1. [If a period intervenes between accident and death:]

The plaintiff is entitled to be awarded the total amount the decedent would have earned between the time of the accident and

[his] [her] death.

2. The plaintiff is entitled to be awarded the total net amount that the decedent would have earned between the date of [his] [her] death and today. Net earnings are decided as follows: you must first calculate the total amount of the decedent's gross earnings, including the fringe benefits, between the date of death and today; from this amount, you deduct the amount of monetary contributions [he] [she] would have made to [his] [her] family during this period (which you have already awarded to the plaintiff under the Wrongful Death Act) and the amount of money that the decedent would have spent on [himself] [herself] for [his] [her] personal maintenance during this period. The probable cost of personal maintenance includes only the necessary and economical living expenses, such as food, shelter, and clothing, that the decedent would have been required to spend in order to maintain life during this period.

3. The plaintiff is entitled to be awarded the value of the net amount that the decedent would have earned between today and the end of [his] [her] life expectancy. Again, net earnings for this period are decided as follows: you must first calculate the total amount of the decedent's gross earnings between today and the end of [his] [her] life expectancy; from this amount you must deduct the probable cost of [his] [her] necessary and economical living expenses required to sustain life during this period [together with

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the amount of monetary contributions [he] [she] would have made to [his] [her] family during this period (which you have already awarded under the Wrongful Death Act)]. Your award to the estate for total lost future net earnings thus represents the total net earnings over the decedent's work life expectancy.

4. The plaintiff is entitled to be awarded an amount that you believe will fairly and adequately compensate for the mental and physical pain, suffering, and inconvenience and loss of life's pleasures that the decedent endured from the moment of [his] [her] injury to the moment of [his] [her] death as a result of this accident.

C. You are to add each of these items of damages together in its proper category and return your verdict in two lump sum amounts, one under the

Wrongful Death Act and the second under the Survival Act.

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RHODE ISLAND

Kimberly Simpson

Catherine Shaghalian

Vetter & White

Providence, Rhode Island

401-421-3060


No claim for damages should be allowed to stand where such claim is not supported by the required degree of proof, or is speculative, or imaginary, or is clearly attributable to other causes. Perrotti v. Gonicberg , 877 A.2d 631, 636 (R.I.

2005); Andrews v. Penna Charcoal Co., 222, 179 A. 696, 700 (1935).


1. Medical Expenses. Medical expenses are recoverable. The medical costs claimed must be found medically reasonable and must be necessarily incurred in providing care, treatment and medical attendance. In assessing damages, the jury should consider evidence that establishes that plaintiff‘s medical treatment was necessary as a result of the incident/accident and the reasonable charge for the treatment. Model Civil Jury Instructions For Rhode Island 1002.1.1;

Markham v. Cross Transportation, Inc.

, 376 A.2d 1359 (R.I. 1977);

Oresman v. G.D. Searle & Co.

, 388 F.Supp.1175 (D.R.I. 1975) Lebon v. B.L.&M. Bottling Co.

, 339 A.2d 272 (1975).

2. Present Damages for Future Medical Treatment. Present damages for future medical treatment are recoverable if they are reasonably certain to become necessary as a proximate result of a plaintiff‘s injuries. Shepardson v. Consolidated Medical Equipment , 714 A.2d

1181 (R.I. 1988); Markham v. Cross Transportation, Inc.

, 376 A.2d

1359 (R.I. 1977); Pescatore v. MacIntosh , 319 A.2d 21 (R.I. 1974);

Labree v. Major , 306 A.2d 808 (R.I. 1973); Tilley v. Mather , 124 A.2d

872 (R.I. 1956); MacGregor v. Rhode Island Co.

, 60 A. 761 (R.I.

1905); See Model Civil Jury Instructions For Rhode Island 1002.1.3.

Damages for future medical expenses do not need to be discounted for present value. Shepardson v. Consolidated Medical Equipment , 714

A.2d 1181 (R.I. 1988).

3. Loss of Earnings/Wages. Plaintiff is entitled to be compensated for the amount of earnings/wages plaintiff was reasonably certain to have earned if he/she had not been injured Jackson v. Choquette & Co.

, 80

A.2d 172 (R.I. 1951). Where there is no work history for a minor, a jury may consider evidence relating to the age, sex, physical and mental characteristics of the child, the position in life and earning

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capacity of its parents as bearing upon the conditions under which the child would probably have been reared and educated. It is left it to the jury to assess the damages subject to ―the power and duty of the trial justice to confine the award within the bounds of reasonable probability.‖

Gill v. Laquerre , 152 A. 795, 796 (R.I. 1931).

4. Loss of Future Earning Capacity. Damages for impairment of earning capacity are recoverable. The proper measure of damages is the difference between what the plaintiff, if uninjured, would have been capable of earning.

D’Andrea v. Sears, Roebuck & Co., 287 A.2d

629 (R.I. 1972) .


1. Pain and Suffering. Damages for pain and suffering are recoverable.

Pain means physical pain, the kind resulting from a physical impact or injury. It includes physical pain as well as discomfort, stiffness, and restriction of bodily motion that is caused by the pain or discomfort brought about by moving. Suffering means recognizing the pain, the danger resulting from the pain, and the knowledge that the pain and treatment for it will continue. Arlan v. Cervini , 478 A.2d 976 (R.I.

1984); Blais v. King , 2009 R.I. Super. LEXIS 4, 11-12 (R.I. Super. Ct.

2009).

Rhode Island courts have not adopted a formula or recognized any socalled "rule of thumb" for the computation of the damages to be awarded for pain and suffering. The establishment of the amount to be awarded for such damages is left to the discretion of the jury. A jury‘s verdict for pain and suffering damages will only be reduced when it appears that they are grossly excessive. To be grossly excessive, there must be a demonstrable disparity between the amount awarded and the pain and suffering shown to have been endured as a consequence of the injury sustained. Proffit v. Ricci , 463 A.2d 514 (R.I. 1983);

Hayhurst v. LaFlamme, 441 A.2d 544 (R.I. 1982); Bruno v. Caianiello ,

404 A.2d 62 (R.I. 1979); Tilley v. Mather , 124 A.2d 872 (R.I. 1956);

Handy v. Geary , 252 A.2d 435 (R.I. 1969).

2. Mental Suffering. Mental suffering, which may include nervousness, grief, anxiety, worry, shock, humiliation, embarrassment, or indignity, arising from consciousness of a facial or bodily scar, is a compensable element of damages. Arlan v. Cervini , 478 A.2d 976, 980 (R.I. 1984).

3.

Future Pain and Suffering. Damages for future pain and suffering are recoverable if plaintiff proves he/she is reasonably certain to experience future pain and suffering. Markham v. Cross

Transportation, Inc.

, 376 A.2d 1359 (R.I. 1977); Pescatore v.

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MacIntosh , 319 A.2d 21 (R.I. 1974); Labree v. Major , 306 A.2d 808

(R.I. 1973). In some cases the injuries sustained are of a nature that in and of themselves warrant an inference that they will cause future pain and suffering. In such a case, expert testimony in support of future pain and suffering is not required. See MacGregor v. Rhode Island

Co.

, 60 A. 761 (R.I. 1905).

4. Disfigurement. Disfigurement such as scar or loss of limb is compensable in damages. Arlan v. Cervini , 478 A.2d 976, 980 (R.I.

1984). See also Model Civil Jury Instructions For Rhode Island

10002.5.

5. Bodily Injury and Impairment. Damages for bodily injury and impairment sustained as a proximate result of the incident are recoverable as are any impairment or disability that resulted from those bodily injuries. Model Civil Jury Instructions For Rhode Island

10001, 10002.5

6. Loss of Consortium for Parents. Parents are entitled to recover damages for the loss of their unemancipated minor child's society and companionship caused by tortious injury to the minor. R.I. G. L. § 9-1-

41.

7. Emotional Distress for Parents. A parent may recover damages for negligent infliction of emotional distress. In order to recover, however, a party must (1) be a close relative of the victim, (2) be present at the scene of the accident and be aware that the victim is being injured, and

(3) as a result of experiencing the accident, suffer serious emotional injury that is accompanied by physical symptomatology. Marchetti v.

Parsons , 638 A.2d 1047, 1052 (R.I. 1994). See also Reilly v. United

States, 547 A.2d 894, 896 (R.I. 1988).

8. Punitive Damages . Punitive damages are recoverable where there is evidence of such willfulness, recklessness or wickedness on the part of the party at fault as amounts to criminality, which for the good of society and warning to the individual, ought to be punished.

Palmisano v. Toth , 624 A.2d 314, 318 (R.I. 1993).

III. Jury Instructions a. Compensable Damages for Personal Injuries. Model Civil Jury

Instructions For Rhode Island 10001.

If you find the defendant is liable to plaintiff for the incident and/or accident that occurred, then you must consider the question of damages.

Damages are defined in law as that amount of money that will compensate an injured party for the harm or loss that he/she has sustained. The rationale behind compensatory damages is to restore a person to the

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position he/she was in prior to the harm or loss. Compensatory damages, then, is the amount of money which will replace, as near as possible, the loss or harm caused to a person.

When you assess damages, you must not be oppressive or unconscionable, and you may assess only such damages as will fairly and reasonably compensate plaintiff insofar as the same may be computed in money. You must confine your deliberations to the evidence, and you must not indulge in guesswork, speculation or conjecture.

See also Model Civil Jury Instructions For Rhode Island 1002 and 1003 for jury instructions for specific elements of compensable damages.


While there is no Rhode Island case or statute that speaks directly to this issue, some indirect support can be found for a parent‘s right to sue for a minor‘s medical expenses. See R.I.G.L. § 33-15.1-1 (provides that parents are equally charged with their child‘s care, nurture, welfare and education); Julian v. Zayre

Corp.

, 388 A.2d 813 (R.I. 1978) (involved claim made by mother for child‘s medical expenses); Hamrick v. Hospital Service Corp.

, 296 A.2d 15 (R.I. 1972)

(held that a parent in the discharge of his duty to care for his child can bind that child, even though a minor, to a subrogation clause of a medical service contract );

Neves v. Nemtzow 12 A.2d 660 (R.I. 1940) (court upheld award of damages to father on claim for medical expenses resulting from minor child‘s injuries).


Pursuant to R.I.G.L § 10-7-1:

[W]henever the death of a person shall be caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who, or the corporation which, would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.‖


1. Loss of Future Earning Capacity. Damages for loss of future earning capacity are recoverable. R.I.G.L. §10-7-1.1; They are determined as follows:

(1) Determine the gross amount of the decedent's prospective income or earnings over the remainder of his or her life expectancy, including

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all estimated income he or she would probably have earned by his or her own exertions, both physical and mental…

(2) Deduct from the amount determined in subdivision (1) the estimated personal expenses that the decedent would probably have incurred for himself or herself, exclusive of any of his dependents, over the course of his or her life expectancy.

(3) Reduce the remainder thus ascertained to its present value as of the date of the award. In determining the award, evidence shall be admissible concerning economic trends, including but not limited to projected purchasing power of money, inflation, and projected increase or decrease in the costs of living.

R.I.G.L. § 10-7-1.1.

In calculating amount of damages for wrongful death of a minor, the only relevant earnings are those after age 21 and any before that age would not belong to the decedent. Williams v. United States , 435 F.2d

804 (1st Cir. 1970).

2. Medical expenses. Medical expenses until the time of death are recoverable. R.I.G.L § 10-7-5.

3. Diminution of Earning Capacity. Damages for diminution of earning capacity until time of death are recoverable. R.I.G.L. § 10-7-

5.


1. Pain and Suffering. Damages for pain and suffering are recoverable.

No mathematical formula exists for awarding a plaintiff pain and suffering damages in a wrongful death case. Such an award, however, must be consistent with the evidence and not unduly motivated by sympathy, passion or prejudice. Oliveira v. Jacobson , 846 A.2d 822,

827 (R.I. 2004).

2. Loss of Consortium for Parents. A parent may recover damages for loss of consortium. R.I.G.L. § 10-7-1.2. When awarding damages for loss of society and companionship in cases arising out of the wrongful death of a minor, factors properly considered are (1) the relationship between parent and child; (2) the living arrangements of the parties;

(3) any absence of the deceased from the beneficiary for extended periods; (4) the harmony of family relations; and (5) common interests and activities. Castillo-Monterroso v. R.I. Hosp ., 2009 R.I. Super.

LEXIS 24 (R.I. Super. Ct. 2009) citing Wellborn v. Sears, Roebuck &

Co.

, 970 F.2d 1420, 1429 (5th Cir. 1992) (applying Texas law).

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3. Punitive damages are NOT recoverable

Punitive damages are not recoverable in a wrongful death case.

Simeone v. Charron , 762 A.2d 442, 444-445 (R.I. 2000).


Rhode Island has no model jury instruction specific to wrongful death.

The following is an example of a jury instruction, in pertinent part, used in a recent minor wrongful death action. a.

Damages

Because damages are an element of the Plaintffs‘ case, they too must be proven by a fair preponderance of the evidence. You may not speculate in awarding damages.

If you find in favor of Plaintiffs, then you should award Plaintiffs such sum as you believe will fairly and justly compensate them for any damages you believe that they sustained, and are reasonably certain to sustain in the future as a direct result of [minor]‘s death.

Damages must be reasonable. If you should find that Plaintiffs are entitled to a verdict, you may award them only such damages as will reasonably compensate them for such injury and damages as you find, from a preponderance of the evidence in this case that they have sustained as a proximate result of [minor]‘s death.

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SOUTH CAROLINA

Deirdre McGlinchey

Michelle L. Miller

Cara E. Hall

McGlinchey Stafford PLLC

New Orleans, Louisiana

(504) 586-1200


―When a minor receives personal injuries proximately caused by the actionable negligence, recklessness and willfulness of another, a cause of action arises in favor of the injured minor and such minor can maintain a suit to recover the resulting damages through a guardian Ad litem.‖

Hughey v. Ausborn , 154

S.E.2d 839, 840 (S.C. 1967).

I. Economic damages:

Economic damages are defined as ―pecuniary damages arising from medical expenses and medical care, rehabilitation services, costs associated with education, custodial care, loss of earnings and earning capacity, loss of income, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, a claim for loss of spousal services, loss of employment, loss of business or employment opportunities, loss of retirement income, and other monetary losses.‖ S.C. Code Ann. § 15-32-210(3) (1976).

These actual damages are assessed in money and the principle is that ―the person injured shall receive compensation commensurate with his loss or injury, and no more.‖ Kapuschinsky v. United States, 259

F.Supp. 1, 6 (D.S.C. 1966). The recovery should be proportionate to the injuries sustained and should be sufficient to recompense him for his injuries. Id.

―Loss of earning capacity, not yet determined, [due to minority], cannot, therefore be considered, but the court must realize that plaintiff, will, must, earn her keep after maturity.‖

Kapuschinsky v. United States,

259 F.Supp. 1, 6 (D.S.C. 1966). Therefore, the court must determine just compensation for the other elements which include ―pain and suffering, medical expenses and any future damages resulting from permanent injuries.‖

Id.

―An infant will not be denied recovery for loss of earning power or his prospective loss of earnings after he has reached his majority because his time has been spent in school or he has never earned anything.‖

Doremus v. Atlantic Coast Line Railroad Co.

, 130 S.E.2d 370,

382 (S.C. 1963). While there may not be ―any evidence, opinion or

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otherwise, as to the extent, if any, the earning capacity of the minor plaintiff will be impaired upon his attaining his majority[,]‖ the jury can infer the damage and use their sound judgment and experience to determine the future earning capacity. Id.


Noneconomic damages are defined as ―nonpecuniary damages arising from pain, suffering, inconvenience, physical impairment, disfigurement, mental anguish, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, humiliation, other nonpecuniary damages, and any other theory of damages including, but not limited to, fear of loss, illness, or injury.‖ S.C. Code Ann. § 15-32-

210(9) (1976). These damages are governed by the ―South Carolina

Noneconomic Damage Awards Act of 2005,‖ S.C.Code Ann. § 15-32-200

(1976), et seq., and are listed below:

1. Loss of enjoyment of life.

―[D]amages for ‗loss of enjoyment of life‘ compensate for the limitations, resulting from the defendant‘s negligence, on the injured person‘s ability to participate in and derive pleasure from the normal activities of daily life, or for the individual‘s inability to pursue his talents, recreational interests, hobbies, or avocations.‖ Boan v. Blackwell , 541 S.E.2d 242, 244 (S.C. 2001).


―An award for pain and suffering compensates the injured person for the physical discomfort and the emotional response to the sensation of pain caused by the injury itself.‖ Boan v.

Blackwell , 541 S.E.2d 242, 244 (S.C. 2001).

3. Mental Anguish. Mental anguish is compensated when ―the injured person suffered shock, fright, emotional upset, and/or humiliation as the result of the defendant‘s negligence.‖

Boan v. Blackwell , 541

S.E.2d 242, 244 (S.C. 2001).

In addition to statutory non-economic damages, a plaintiff may recover punitive damages.


―The purposes of punitive damages are to punish the wrongdoer and deter the wrongdoer and others from engaging in similar reckless, willful, wanton, or malicious conduct in the future.

Punitive damages also serve to vindicate a private right of the injured party by requiring the wrongdoer to pay money to the injured party.‖

Clark v. Cantrell , 339 S.C. 369, 378-79, 529 S.E.2d 528, 533 (2000)

(internal citations omitted). Punitive damages may only be awarded if the plaintiff recovers actual damages. Garner v. Wyeth Labs., Inc.

,

287

585 F.Supp. 189, 194 (D.S.C. 1984). Punitive damages ―may be recovered when a tortfeasor acts willfully, wantonly, or in reckless disregard of the rights of another. City of Greenville v. W.R. Grace &

Co.

, 827 F.2d 975 (4th Cir. 1987). The test for awarding punitive damages is ―whether the tort has been committed in such a manner or under circumstances that a person of ordinary reason or prudence would have been conscious of it as an invasion of the plaintiff‘s rights.‖

Cartee v. Lesley , 350 S.E. 2d 388, 390 (S.C. 1986). Punitive damages must be proven by clear and convincing evidence. S.C. Code

Ann. § 15-33-135 (1976).

III. Jury Instructions a. Negligence – Elements. Ralph King Anderson, Jr., Anderson‘s S.C.

Requests to Charge – Civil, § 20-1 (2009).

―This is an action in which the plaintiff claims that he has suffered injuries to his person for which the defendant is responsible in damages.

There are three essential elements of the plaintiff‘s cause of action. They are denied by the defendant‘s answer. Since the plaintiff has initiated and brought this lawsuit against the defendant, the burden of proof is upon him to establish all three by the greater weight or preponderance of the evidence:

(1) That the defendant was negligent or careless and/or reckless, willful or wanton;

(2) That the plaintiff was injured or damaged in his person or property or both;

(3)

That the defendant‘s negligence or carelessness and/or recklessness, willfulness, and wantonness was the proximate cause of the plaintiff‘s injuries.

What is negligence? Negligence is defined in the law as the absence of due care. The want or lack of due care or ordinary care. The word carelessness conveys the same idea as negligence by the defendant.

Negligence is the failure, by omission or commission, to exercise due care as a person of ordinary reason and prudence would exercise in the same circumstances. It is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

In determining whether a particular act is negligent, the test you apply is what would a person of ordinary reason and prudence do under those circumstances at that time and place.

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It is incumbent upon the plaintiff to prove the defendant was negligent in one or more of the particulars as alleged in the complaint. It is not required that the plaintiff prove them all, but it is absolutely essential that the plaintiff prove at least one. Otherwise, you would be required to find a verdict for the defendant.

Negligence is a fact which, like any other fact in the case, must be proved.

The mere happening of an accident, or the filing of a complaint, or the fact that damages have been sustained, raises no presumption of negligence. A surmise or conjecture that the defendant was negligent is not evidence thereof. The bare fact that an innocent party sustained injury or damage does not place any responsibility on another party unless you find that there was some act of negligence on the part of that party which caused the injury or damage.

If you find that the plaintiff has proved the defendant was negligent

[and/or reckless, willful, and wanton], then your next inquiry would be whether the plaintiff has proved that such negligence was the proximate cause of the injury or damage. Negligence is not actionable unless it proximately causes the plaintiff‘s injuries. A plaintiff may only recover for injuries proximately caused by the defendant‘s negligence.

Even if you should find that the plaintiff has proved the defendant was negligent [or reckless, willful, and wanton], but has failed to prove that such negligence [or recklessness, willfulness, and wantonness] was a proximate cause of the injury, the plaintiff would have failed to make out his case and you would be required to find for the defendant. However, if the plaintiff has proved these two propositions, then it would be necessary for him to prove his damages.‖ b. Comparative Negligence.

Anderson, Anderson‘s S.C. Requests to

Charge – Civil, § 23-1 (2009).

―Comparative negligence is the law in South Carolina. Under the doctrine of comparative negligence, the plaintiff's negligence does not automatically bar recovery unless such negligence exceeds that of the defendant. A plaintiff in a negligence action may recover damages if his negligence is not greater than that of the defendant. The amount of the plaintiff's recovery shall be reduced in proportion to the amount of his negligence.

You, the jury, must apportion fault between the plaintiff and defendant in a negligence action. The plaintiff may recover damages when his negligence is not greater than that of the defendant. The plaintiff's damages, however, are reduced in proportion to the amount of his negligence.

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One of the defenses interposed by the defendant is that of comparative negligence. A defendant, by his defense, in essence says this: Even if the jury should find that I was at fault, the plaintiff was more at fault than I was and the fault of each of us combined and concurred with that of the other to act as the proximate cause of the accident and, without which, the accident would not have happened. In other words, it required the fault of each of us for the accident to have happened, but the plaintiff was more at fault than I was.

The plaintiff has the burden of proving the negligence and fault, if any, of a defendant. A defendant has the burden of proving the negligence and fault, if any, of the plaintiff and the degree of such.

Where negligence has been established on the part of both the defendant and the plaintiff, then you must weigh or compare the respective contributions of each person to the occurrence. Considering the conduct of each person involved as a whole, you must determine whether one made a larger contribution than the other.

In making this comparison, the degree of negligence attributable to a party is not to be measured solely by the character thereof, nor solely by the number of respects in which he is found to have been at fault. It is the conduct of a party considered as a whole which must be determined. That is to say, once it has been established that each has been at fault, it is then the jury's function to weigh their respective contributions to the result, which will, regardless of the nature of their acts or omissions, determine who made the larger contribution and to what extent it exceeds or is less than that of the other.

It is the conduct of the parties considered as a whole which is being measured by you in the form of a percentage.

If you find that the occurrence was proximately caused by negligence on the part of the defendant and not by negligence on the part of the plaintiff, then the plaintiff is entitled to recover the full amount of any damages you may find he has sustained as a result of the occurrence.

If you find the occurrence was proximately caused by the negligence of both the plaintiff and the defendant, then you must compare the percentages of that negligence. If the negligence of the plaintiff is less than or equal to the negligence of the defendant, then the plaintiff is entitled to recover any damages which you may find he has sustained as a result of the occurrence after you have reduced his damages in proportion to the degree of the plaintiff's own negligence. On the other hand, if the defendant was not negligent or if the negligence of the defendant was less than the negligence of the plaintiff, then the plaintiff is not entitled to recover any damages. If you find the plaintiff's negligence to be greater

290

than that of the defendant against whom recovery is sought, then the plaintiff shall not recover and you will find for the defendant.

Comparative negligence, if proven by the defendant, can have one of two possible effects. First, comparative negligence will totally defeat a recovery by an injured plaintiff if the negligence of the injured plaintiff was greater than that of the defendant. Another way of saying this is to say that a plaintiff can recover only when his negligence, if any, is equal to or less than that of the defendant. In order to prevent a verdict in favor of a plaintiff injured by the negligence of a defendant, the defendant has the burden of proving by the greater weight or preponderance of the evidence that the plaintiff was negligent and that the plaintiff's negligence was greater than that of the defendant.

The second possible effect of comparative negligence is that, if proven, it will reduce or partially defeat the plaintiff's recovery. This applies when the plaintiff's negligence is equal to or less than the negligence of the defendant. Such a reduction is made when the defendant proves, by the preponderance or greater weight of the evidence, that the plaintiff was negligent but that the plaintiff's negligence was equal to or less then the defendant's negligence.

Please remember that the plaintiff's negligence must have contributed proximately to his injury. If the negligence of the plaintiff operated only remotely and not proximately to cause the injury, the plaintiff is neither barred from recovery nor is his recovery reduced in any way.‖ c. Standard of Care of a Child.

Anderson, Anderson‘s S.C. Requests to

Charge – Civil, § 20-7 (2009).

―A child under the age of fourteen years is not required to conform to an adult standard of care. A minor's conduct should be judged by the standard of behavior to be expected of a child of like age, intelligence, and experience under like circumstances. A child may be so young as to be manifestly and utterly incapable of exercising any of those qualities of attention, perception, knowledge, experience, intelligence, and judgment which are necessary to enable the child to perceive a risk and to realize its unreasonable character. On the other hand, it is obvious that a minor who has not yet attained majority may be quite as capable as an adult of exercising such qualities.‖ d. Actual Damages.

Anderson, Anderson‘s S. C. Requests to Charge –

Civil, § 13-2 (2009).

―Actual damages are properly called compensatory damages, meaning to compensate, to make the injured party whole, to put him in the same position he was in prior to the damages received insofar as this is

291

monetarily possible. In other words, actual or compensatory damages include compensation for all injuries which are naturally the proximate result of the alleged wrongful conduct of the defendant.

Actual damages are awarded to a litigant in compensation for his actual loss or injury. Actual damages are such as will compensate the party for injuries suffered or losses sustained. They are such damages as will simply make good or replace the loss caused by the wrong or injury.

Actual damages are damages in satisfaction of, or in recompense for, loss or injury sustained. The goal is to restore the injured party, as nearly as possible through the payment of money, to the same position he was in before the wrongful injury occurred.

The basic measure of actual damages is the amount needed to compensate the plaintiff for the losses proximately caused by the defendant‘s wrong so that the plaintiff will be in the same position he would have been in if there had been no wrongful injury. Actual damages include compensation for all injuries which are naturally the proximate result of the alleged wrongful conduct of the defendant.

The existence, causation, or amount of damages cannot be left to conjecture, guesswork or speculation. However, proof of amount of loss with absolute or mathematical certainty is not required. Damages must be proved with a reasonable degree of certainty. The evidence presented by the plaintiff must enable you, the jury, to determine what amount is fair, just and reasonable.

The plaintiff bears the burden of proving by the preponderance of the evidence that he is entitled to compensatory damages.‖ e. Nominal Damages.

Anderson, Anderson‘s S.C. Request to Charge –

Civil, § 13-1 (2009).

―The defendant has denied the plaintiff sustained any real or substantial personal injuries as a result of the accident. If you find the defendant's negligence caused the plaintiff some damage, but the evidence does not convince you the plaintiff sustained any real or substantial damages as a proximate result of the defendant's negligence, you could find nominal damages in favor of the plaintiff.

A small sum, known as nominal damages, may be awarded when the plaintiff has proved no substantial loss or injury but when the law recognizes the violation or invasion of a legal right or the breach of a duty, or when the plaintiff's evidence shows the existence but not the amount of an actual injury. Nominal damages are a trivial or trifling sum awarded to

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a plaintiff in an action where there is not substantial loss or injury to be compensated, but still the law recognizes a technical invasion of the plaintiff's rights or a breach of the defendant's duty. Nominal damages are awarded for the vindication of a right where no real loss or injury can be proved.

If no actual damages capable of pecuniary estimation have been sustained, but legal right of the plaintiff has been thereby violated through the defendant's negligence, you can award only nominal damages-such as one dollar, one cent, or other inconsiderable amount-to vindicate plaintiff's legal right.‖


The parent has the right to recover for the treatment had or necessary, and expenses incidental thereto until the child reaches majority. Kapuschinsky v.

United States , 259 F.Supp. 1, 7 (D.S.C. 1966). The amount paid for medical care and treatment by the parent is not an element of the damages in the minor‘s cause of action. ―[T]he parent has a cause of action for the recovery of the medical expenses which he has incurred for the care and treatment of the minor.‖

Hughey v. Ausborn , 154 S.E.2d 893, 841 (S.C. 1967). The parent does not have the right to recover punitive damages; that right of recovery is with the child. Id.

The parents‘ damages are restricted strictly to their pecuniary loss.

Id.

Damages Recoverable in Minor Wrongful Death Claim

A civil action for wrongful death is authorized by South Carolina Code

Ann. §15-51-10 (1976): ―In every [wrongful death] action the jury may give damages, including exemplary damages when the wrongful act, neglect, or default was the result of recklessness, willfulness, or malice, as they may think proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit such action shall be brought.‖ S.C. Code Ann. § 15-

51-40 (2005). ―The measure of actual damage for wrongful death is governed by the South Carolina Wrongful Death Statute.‖ S.C. Code Ann. § 15-51-10 (1976), et seq.

―Every such action shall be for the benefit of the wife or husband and child or children of the person whose death shall have been so caused, and, if there be no such wife, husband, child or children, then for the benefit of the parent or parents, and if there be none such, then for the benefit of the heirs of the person whose death shall have been so caused. Every such action shall be brought by or in the name of the executor or administrator of such person.‖ S.C. Code Ann. §

15-51-20 (1976).

―In the event of the death of an illegitimate child . . . by the wrongful or negligent act of another, such illegitimate child or the mother or father or the heirs at law or the distributees of such illegitimate child shall have the same rights and

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remedies in regard to such wrongful and negligent act as though such illegitimate child had been born in lawful wedlock.‖ S.C. Code Ann. § 15-51-30 (1976).

South Carolina also allows for Survival Damages. ―The South Carolina survival statute provides that a cause of action for injuries to a person shall survive the person‘s death, with damages recoverable by the legal representative of the deceased.‖ Smalls v. South Carolina Dept. of Educ.

, 528 S.E.2d 682, 686

(S.C. Ct. App. 2000); S.C. Code Ann. § 15-5-90 (1976). The damages include recovery for the deceased‘s conscious pain and suffering, mental distress of the deceased, and medical expenses.‖ Id.; Scott v. Porter , 530 S.E.2d 389, 395 (S.C.

Ct. App. 2000).

I. Economic Losses:

1. Pecuniary loss. Pecuniary loss is not presumed when a minor child dies; actual loss must be proven. Adams v. Hunter , 343 F.Supp. 1284

(D.S.C. 1972). In a wrongful death case, there are three factors to determine pecuniary loss: ―(1) the prospective earnings of the decedent subsequent to death, (2) calculated on the basis of his ‗work expectancy‘, and (3) the extent to which his statutory beneficiaries

‗might logically and reasonably have been expected to share in‘ such prospective earnings.‖

Brooks v. United States , 273 F.Supp. 619, 626

(D.S.C. 1967). However, the court in Adams states that the ―formula used in the Brooks case is not applicable for determining pecuniary loss in the case of a minor, therefore, making the method of proof in such a case unclear.‖ Adams , 343 F.Supp. 1290.

In Adams the court found that contribution to the family had been proven. Id.

at 1290. The plaintiffs established that the deceased was a

―dutiful son‖ who worked for his father after school and during vacations. Id.

He planned on joining the family business as an equal partner when he reached the age of majority. Id.

Out of the money he earned he paid for his own clothing, his car and many other necessaries of life. Id.

In establishing the amount of pecuniary damages owed, the court stated that: ―[n]o matter what amounts or types of contribution are shown, damages are recoverable only for the period of the child‘s minority and for such benefits after minority as are probable and reasonably certain from the evidence.‖

Id.

In a wrongful death case where both children died, the mother was awarded pecuniary damages for the anti-depressant she would be required to take for the remainder of her life. Hurd v. United States ,

134 F.Supp.2d 745, 776 (D.S.C. 2001). She was also awarded funeral expenses under the category of pecuniary damages. Id.

294

2. Funeral Expenses. Funeral expenses are authorized by S.C. Code

Ann. § 15-5-100 (1976). Smalls v. South Carolina Dept. of Educ.

, 528

S.E.2d 682, 686 (S.C. Ct. App. 2000).

II. Noneconomic Losses:

1. Nonpecuniary damages. Parents are entitled to a presumption of nonpecuniary damages in a wrongful death case. Scott v. Porter , 530

S.E.2d 389, 394 (S.C. Ct. App. 2000). Specifically, parents may recover for ―mental shock and suffering, wounded feelings, grief and sorrow, loss of companionship, and deprivation of the use of intestate‘s society, the loss of his experience, knowledge, and judgment in managing the affairs of himself and of his beneficiaries.‖

Id.; Adams v. Hunter, 343 F.Supp. 284, 280 (D.S.C. 1972).

2. Punitive Damages. A jury may award exemplary damages when the

―wrongful act, neglect, or default was the result of recklessness, willfulness, or malice, as they may think proportioned to the injury resulting from the death to the parties respectively and for whose benefit such action shall be brought.‖ S.C. Code Ann. § 15-51-40

(1976). Punitive damages must be specifically prayed for in the complaint. S.C. Code Ann. § 15-32-510 (1976).

III. Jury Instructions a. Finding Instruction.


Civil, § 35-2 (2009).

There are three essential elements of the plaintiff‘s cause of action. They are denied by the defendant‘s answer. Since the plaintiff has made these charges as the foundation of his claimed right of damages against the defendant, the burden of proof is upon the plaintiff to establish all three by the preponderance or greater weight of the evidence.

First, that the defendant was negligent [and/or reckless, willful, or wanton] in one or more of those specifications of wrongful conduct as alleged in the complaint.

Second, that the plaintiff‘s intestate, ___________, came to his untimely death as a consequence of that alleged wrongful conduct.

Third that the defendant‘s negligence [and/or recklessness, willfulness, and wantonness], in one or more of the specifications of wrongful conduct as alleged in the complaint, was the proximate cause of the death of the plaintiff‘s intestate.

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b. Damages.

Anderson, Anderson‘s S.C. Request to Charge – Civil, §

35-6 (2009).

In a wrongful death action, the damages recoverable are those sustained by the statutory beneficiaries resulting from the death of the decedent. Thus, the question of damages is not directed toward the value of the human life that was lost, but rather the damages suffered by the beneficiaries as a result of the wrongful death.

South Carolina Code section 15-51-40 (2005) reads: ―In every [wrongful death] action the jury may give damages, including exemplary damages when the wrongful act, neglect, or default was the result of recklessness, willfulness, or malice, as they may think proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit such action shall be brought.‖

In an action for wrongful death, the elements of damages to be considered by you, the jury, include:

(1) pecuniary loss or economic loss; ―pecuniary loss‖ is a loss of money, or of something by which money or something of money value may be acquired;

(2) mental shock and suffering;

(3) wounded feelings;

(4) grief and sorrow;

(5) loss of companionship;

(6) deprivation of the use and comfort of the deceased's society, including the loss of decedent's experience, knowledge and judgment in managing the affairs of himself and his beneficiaries;

(7) loss of decedent's ability to earn money for the support, maintenance, care and protection of the beneficiaries, [and for the education and training of his children];

(8) reasonable funeral expenses.

The beneficiaries are entitled to recover all damages, past, present and prospective, which are naturally the proximate consequence of the wrongful act. Only such future or prospective damages may be awarded as the evidence renders it reasonably certain will of necessity result from the alleged injury.

In addition to actual damages, punitive damages may be awarded in a wrongful death action. The wrongful death statute expressly authorizes

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punitive damage awards in wrongful death actions when the defendant has acted recklessly, willfully, or maliciously. You may award punitive damages in this case if you find by clear and convincing evidence that ―the wrongful act, neglect, or default was the result of recklessness, willfulness, or malice. c. Non-Pecuniary Damages. Anderson, Anderson‘s S.C. Request to

Charge – Civil, § 35-8 (2009).

In an action for wrongful death of a minor child, the parents are entitled to a presumption of non-pecuniary damages. d. Pecuniary Damages.


Civil, § 35-9 (2009). See also Adams v. Hunter, 343 F.Supp. 1284 (D.S.C.

1972).

[P]ecuniary loss is not presumed when a minor child dies. Therefore, proof of actual loss is necessary for recovery for pecuniary loss in a case involving the wrongful death of a minor child. e. Funeral Expenses.


Civil, § 35-11 (2009).

In your consideration of damages for the wrongful death of the decedent, you may consider the funeral expenses associated with the decedent‘s burial. South Carolina Code section 15-5-100 (1977) provides: ―Damages recoverable under [the wrongful death statute] may include reasonable funeral expenses. f. Future Damages – Life Expectancy Table.

Anderson, Anderson‘s

S.C. Request to Charge – Civil, § 35-12 (2009).

In deciding the amount of money to include in your award of future damages, it will be necessary for you to decide the probable life expectancy of the decedent. To aid you in making this determination, you may consider as evidence a life expectancy table.

Life expectancy is the period of time in which a person of a given age and sex is expected to live according to statistical or actuarial tables. Life expectancy is merely an estimate of the probable average remaining length of life of all persons in our State of a given age, and that estimate is based on a limited record of experience. The inference which may be drawn from the table is evidence bearing on the life expectancy of the decedent, including his state of health, habits and occupation.

297

In this State, we have a statute known as the life expectancy tables. It is section 19-1-150 of the South Carolina Code, which provides:

When it is necessary, in any civil action or other mode of litigation to establish the life expectancy of any person from any period in his life, whether he be living at the time or not, the [life expectancy] table. . . shall be received in all courts and by all person having power to determine litigation as evidence (along with other evidence as to his health, constitution and habits) of the life expectancy of such person. In determining a person‘s age as of any particular time, periods of six months or more beyond the last full year shall, in using the table . . ., be treated as one year.

You will take into consideration the decedent‘s age and life expectancy.

The evidence in this case has established that the decedent was, at the time of his death, ____ years of age. According to the governing life expectancy table for a [male][female] of that age, the decedent had a life expectancy of an additional ____ years, as indicated in section 19-1-150.

In determining how long the decedent would have lived, had the decedent lived a normal life, you may consider his life expectancy at the time of death. The life expectancy table received in evidence may be considered in your determination of how long the decedent may have been expected to live. Such tables are not binding on you, but may be considered together with other evidence in the case bearing on the decedent‘s health, age, and physical condition, before [the injury and] death, in determining the probable length of the decedent‘s life. What weight you give to this table is totally for you to determine. You may give it such weight and such consideration as you deem proper.

298

SOUTH DAKOTA


Rebecca L. Mann



(605) 342-1078




A parent is liable for medical expenses for his minor child. A parent has a claim for medical and nursing expenses incurred during minority. A parent also is entitled to the reasonable value of necessary household service, nursing, and attendance, including services furnished gratuitously by family members or others, which has been required as a result of the injury and the value of such services reasonably certain to be required in the future. Stormo v. Strong , 469 N.W.2d 816 (S.D. 1991).

2. Loss of earnings or wage-earning capacity.

A parent has a claim for loss of minor‘s earning capacity during minority although parents may relinquish to a child the right to control and receiving the child‘s earnings. SDCL §§ 25-5-7; 25-5-12. The child has a claim for loss of earning capacity after majority.



A minor has a claim for pain and suffering, while a parent does not. There may be recovery for pain and suffering, mental anguish, and loss of capacity of the enjoyment of life experienced in the past and reasonably certain to be experienced in the future as a result of the injury. Wangen v. Knudson , 428 N.W.2d 242

(S.D. 1988) (Mental Suffering); Shamburger v. Berens , 418 N.W.2d

299 (S.D. 1988) (Future pain and loss of earnings).

2. Disability and disfigurement. An award for temporary and permanent disability is appropriate. Carey v. Jack Rabbit Lines, Inc.

,

309 N.W.2d 824 (S.D. 1981). Disfigurement is included in jury instructions. SD Pattern Jury Instruction 50-10-60.

3. Punitive damages. Punitive damages are available in a personal injury action when the defendant is guilty of oppression, fraud, or malice, actual or presumed, in order to make an example of or punish the defendant. SDCL § 21-3-2. Prior to discovery or submission to the fact finder on the issue of punitive damages, the court must find by

299

clear and convincing evidence, following a hearing, that there is a reasonable basis for the assertion that the defendant‘s conduct was willful, wanton or malicious. SDCL § 21-1-4.1.

III. Jury Instructions a. Damages (Basic Instruction). 50-00-10.

If you decide for the plaintiff[s] on the question of liability you must then fix the amount of money which will reasonably and fairly compensate the plaintiff[s] for any of the following elements of loss or harm suffered in person or property proved by the evidence to have been legally caused by the defendant[s] conduct, [taking into consideration the nature, extent, and duration of the injury], whether such loss or harm could have been anticipated or not, namely:

(Insert the elements of damage which have a basis in the evidence.)

Whether any of these elements of damages have been proved by the evidence is for you to determine. Your verdict must be based on evidence and not upon speculation, guesswork, or conjecture. b. Damages – Disability and Disfigurement. 50-10-60.

The [disability] [and] [disfigurement].

Comment:

This instruction is to be inserted between the two paragraphs of

Instruction 50-00-10 when the evidence justifies its use. c. Damages – Pain and Suffering – Past and Future. 50-10-70.

The pain and suffering, [mental anguish] [and loss of capacity of the enjoyment of life] experienced in the past [and reasonably certain to be experienced in the future] as a result of the injury.

Comment:


Instruction 50-00-10 when the evidence justifies its use. d. Damages – Medical Expense – Past and Future. 50-10-80.

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The reasonable value of necessary medical care, treatment, and services received [and the reasonable value of the necessary expense of medical care, treatment and services reasonably certain to be received in the future.]

Comment:


Instruction 50-00-10 when the evidence justifies its use. e. Damages – Past Loss of Earnings. 50-10-90.

The earnings the plaintiff has lost, if any, from any source from the date of the injury until the date of trial. f. Damages – Loss of Earning Capacity – No Past Earnings. 50-10-

110.

Such sum as will reasonably compensate plaintiff for whatever loss of earning capacity you find that the plaintiff has suffered as a result of the injury.

In determining the plaintiff‘s loss of earning capacity, you may consider such factors as the nature and extent of the injury, the plaintiff‘s age, life expectancy, talents, skill, experience, training, education, and industry.

[Even if the plaintiff is earning more money now than before the injury, the plaintiff is still entitled to recover for a loss of earning capacity reasonably certain to be suffered during the remainder of the plaintiff‘s life expectancy.]

Comment:

This instruction should be given when there is no history of past earnings such as with a minor child or a homemaker. g. Damages – Minor Plaintiff – Loss of Future Earnings or Profit. 50-

10-130.

The present cash value of earnings reasonably certain to be lost in the future after the minor has reached age 18.

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Comment:

This instruction is to be inserted appropriately into Instructions 50-

00-10 (Damages—Basic Instruction) and 50-20-120 (Damages—Present

Value) when the evidence justifies its use. h. Damages – Caretaking Expense – Past and Future. 50-10-140.

The reasonable value of necessary household service, nursing, and attendance, [including services furnished gratuitously by family members or others,] which has been required as a result of the injury [and the value of such services reasonably certain to be required in the future].

Comment:


Instruction 50-00-10 (Damages—Basic Instruction) when the evidence justifies its use.

Who ―owns‖ the right to sue for medical expenses? Parent or child? If parent, does that end at the age of majority when it becomes the child’s claim?

Parent owns the right to sue for child‘s medical expenses and can only recover expenses incurred until the age of majority when it becomes child‘s claim. Hoglund v. Dakota Fir Ins. Co.

, 2007 S.D. 123, 742 N.W.2d 853; Doyen v. Lamb , 59 N.W.2d 550 (S.D. 1953).



1. Medical Expenses. Reasonable expense of necessary medical care, treatment, and services received by the decedent.

2. Funeral Expenses.

Funeral expenses are recoverable in wrongful death action. Bethel v. Janis , 567 F.Supp. 56 (D.S.D. 1984).

3. Loss of employment. Any loss of employment is recoverable.

4. Household and Nursing Services. Reasonable value or expense of necessary household service, nursing, and attendance provided to the decedent.

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1. Pain and suffering. Pain and suffering and mental anguish consciously experienced by the decedent as a result of the injury.

2. Loss of Society. Loss of society, advice, assistance and protection are proper elements of damages for the wrongful death of a minor child.

Loss of consortium, sorrow, mental distress and grief or pain suffered on the part of the decedent are not recoverable. Zoss v. Dakota Truck

Underwriters , 590 N.W.2d 911 (S.D. 1999).


Punitive damages are not recoverable in wrongful death actions. Bethel v. Janis , 597 F.Supp. 56 (D.S.D. 1984).

However, an action for personal injury is maintainable independent of a wrongful death action. Sander v. The Geib, Elston, Frost

Professional Association , 506 N.W.2d 107, 127 (S.D.1993); Pexa v.

Clark , 85 S.D. 37, 42, 176 N.W.2d 497, 500 (1970). A personal injury action survives the death of the injured party and punitive damages may be recoverable in the personal injury action. Ammann v. Massey-

Ferguson, Ltd.

, 933 F.Supp. 840, 842 (D.S.D. 1996).

Punitive damages are not recoverable against the estate of a deceased tortfeasor. Olson-Roti v. Kilcoin , 2002 S.D. 131, 653 N.W.2d 254.

III. Jury Instructions a. Damages – Wrongful Death of Minor Child. 50-30-20.

If you decide for the plaintiff[s] on the question of liability, you must then fix the amount of money which will fairly compensate the

[parents][brothers and sisters][next of kin], called the heir[s] of the decedent, for [his][her][their] pecuniary loss as a result of the death of the decedent.

Where a [minor child][unborn child, viable or not, from fertilization to live birth] dies leaving [a] surviving parent[s], the law recognizes a presumption that the parent[s] [has][have] sustained a pecuniary loss from the time of death of the decedent until the decedent would have reached the age of 18 years. There is no presumption of pecuniary loss to any other person.

In determining pecuniary loss to any heir and the weight to be given to the presumption of pecuniary loss to the surviving parent[s], you may consider what benefits of pecuniary value including moneys, goods, and services, the heir[s] might reasonably have expected to receive from the

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decedent had the decedent lived. You may also consider what pecuniary loss any heir has suffered and is reasonably certain to continue to suffer in the future by being deprived of the advice, companionship, society, assistance, and protection of the decedent. As an offset against the factors of loss mentioned, you may take into consideration any cost that would have been incurred by the heir to support and educate the decedent had the decedent lived.

In weighing these matters, you may consider the age of the decedent and of each heir, the state of health and physical condition of the decedent and of each heir as of the time of the decedent‘s death and immediately prior thereto; their station in life; their respective life expectancies as shown by the evidence; the disposition of the decedent, whether it was kindly, affectionate or otherwise; whether or not the decedent showed a willingness and ability to furnish support to the heir[s]; the earning capacity of the heir[s] and of the decedent; and all other facts in evidence that throw light upon the question of pecuniary loss. b. Damages – Wrongful Death – Factors to be Disregarded. 50-30-40.

The law does not permit you to, and you must not, award plaintiff[s] any sum for the sorrow, mental distress and grief that the heir[s] may have suffered by reason of the death of the decedent, [[nor for any suffering of the decedent, if any, experienced before [his][her] death and caused by the injury in question][nor for any pecuniary loss that the decedent may have personally suffered]]. c. Damages – Wrongful Death – Elements of Loss. 50-30-60.

If you decide for the plaintiff[s] on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate the plaintiff[s], in addition to damages for wrongful death, for any of the following elements of loss or harm suffered in person or property by the decedent during [his][her] lifetime proved by the greater convincing force of the evidence to have been legally caused by the defendant[s] conduct,

[taking into consideration the nature, extent, and duration of the injury], whether such loss or harm could have been anticipated or not, namely:

(1) The aggravation of any pre-existing injury or condition;

(2) The [disability] [and] [disfigurement];

(3) The pain and suffering and mental anguish consciously experienced by the decedent as a result of the injury;

(4) The reasonable expense of necessary medical care, treatment, and services received by the decedent;

(5) The time the decedent lost, if any, from employment; and

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(6) The reasonable value or expense of necessary household service, nursing, and attendance provided to the decedent.

Whether any of these elements or damages has been proved by the evidence is for you to determine. Your verdict must be based on evidence and not upon speculation, guesswork, or conjecture.

305

TENNESSEE

Timothy Peeples

Daniel Coker Horton & Bell, P.A.

Oxford, Mississippi

662-232-8979


I. Economic Losses:

1. Loss of Earning Capacity. Present cash value of the earning capacity that will be lost after the minor becomes 18 years of age. Wolfe v.

Vaughn

, 152 S.W. 2d 631 (Tenn. 1941) (stating that ―[a]n injury to a minor child gives rise to two causes of action, one on behalf of the child for pain and suffering, his permanent injury, and impairment of earning capacity after obtaining majority‖).

2. Medical Expenses. Medical expenses actually paid or incurred by the minor. Smith v. King , 1984 Tenn. App. LEXIS 3174 (Ct. App. Tenn.

1984) (―a child . . . may maintain an action for his medical expenses provided that he has paid them . . . or is legally obligated to pay them.‖

3. Future Medical Expenses. Present cash value of any medical care and treatment reasonably certain to be required in the future.

II. Noneconomic Losses:

1. Pain and Suffering. Past physical pain and suffering, mental or emotional pain and suffering, loss of capacity for enjoyment of life and disfigurement. Riley v. Orr , 2010 Tenn. App. LEXIS 386 (Ct. App.

Tenn. 2010).

Tennessee Courts have declared that ―[p]ain and suffering encompasses the physical discomfort caused by an injury‖ and that

―[m]ental or emotional pain and suffering encompasses anguish, distress, fear, humiliation, grief, shame or worry.‖ Riley , 2010 Tenn.

App. LEXIS 386 at *10.

2. Future Pain and Suffering. Present cash value of future physical pain and suffering, mental or emotional pain and suffering, loss of capacity for enjoyment of life and disfigurement. Riley v. Orr , 2010

Tenn. App. LEXIS 386 (Ct. App. Tenn. 2010).

3. Loss of Enjoyment of Life.

In Tennessee, ―[d]amages for loss of enjoyment of life compensate the injured person for the limitations placed on his or her ability to enjoy the pleasures and amenities of life.‖

Id.

at *23. Loss of enjoyment of life damages relate ―to daily life activities that are common to most people.‖

Id.

; see also Dixon v.

306

Cobb , 2007 Tenn. App. LEXIS 434 (Ct. App. Tenn. 2007 (stating that

―[i]mpairment of physical function prevents a person from living life in comfort by adding inconvenience or loss of physical ability‖). The loss of enjoyment of life ―may include the inability to continue a particular career, . . . to pursue recreational or family activities, . . . and to engage in normal sexual function.‖ Id.

III. Jury Instructions a. Personal Injury – Pain and Suffering. Tennessee Pattern Instruction

(―T.P.I.‖) - CIVIL 14.10.

Plaintiff shall be awarded the following elements of damage experienced in the past:

[Physical pain and suffering]

[Mental or emotional pain and suffering]

[Loss of capacity for the enjoyment of life]

[Disfigurement]

[You shall also award compensation for the present case value of:]

[Physical pain and suffering]

[Mental or emotional pain and suffering]

[Loss of capacity for the enjoyment of life]

[Disfigurement] or may be reasonably certain to be experienced by a party in the future.

Pain and suffering encompasses the physical discomfort caused by an injury. Mental or emotional pain and suffering encompasses anguish, distress, fear, humiliation, grief, shame or worry. Disfigurement is a specific type of permanent injury that impairs a plaintiff‘s appearance.

Damages for loss of enjoyment of life compensate the injured person for the limitations placed on the ability to enjoy the pleasures of life.

Impairment of physical function prevents a person form living life in comfort by adding inconvenience or loss of physical ability.

There is no mathematical formula for computing reasonable compensation for [physical pain and suffering] [mental or emotional pain and suffering]

[disfigurement] [loss of capacity for the enjoyment of life], nor is the opinion of any witness required as to the amount of such compensation.

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b. Injury to Minor - Suit by Parents and Minor. T.P.I. - CIVIL 14.25.

This lawsuit involves two separate claims. First is a claim by (minor) for damages for injuries. The second claim is by (minor‘s parent[s]) for medical expenses incurred [and for loss of the earnings and services of the minor during minority].

If, in accordance with these instructions, you are to determine the amount of damages sustained by the minor, __________, and the parent[s]

_____________, you should fix an amount for each of the following elements fo loss and warm provided it was or will be suffered by the minor or the parent[s] and legally resulted from the fault you have assigned.

[Here list elements of damage set out in T.P.I. – Civil 14.26 & 14.27].

c. Minor’s Damages.

T.P.I. - CIVIL 14.26.

The minor‘s damages shall include:

1. [insert the general instruction for pain and suffering –

T.P.I. – Civil 14.10];

2. The present cash value of the earning capacity that will be lost after the minor become 18 years of age;

3. Medical expenses actually paid or incurred by the minor; and

4. The present cash value of any medical care and treatment reasonably certain to be required in the future. d. Parents’ Damages.

T.P.I. - CIVIL 14.27.

The amount of the award to the parent[s] shall include:

1. The cost of medical [hospital, nursing] services and supplies reasonably required and actually incurred in the treatment of the minor;

2. Monetary loss, if any, actually suffered or reasonably certain to be suffered in the future by the parent[s] because of the loss of the minor‘s services that would have been performed prior to the child‘s 18 th

birthday; and

3.

Loss of the minor‘s earnings, if any, actually suffered or reasonably certain to be suffered in the future by the parent[s] prior to the child‘s 18 th

birthday as a result of the minor‘s inability to pursue an occupation or employment.

308


The party who paid for medical expenses owns the right to recover those expenses. See T.P.I. CIVIL 14.26 and 14.27.



Section 20-5-106 of the Tennessee Code Annotated: A minor‘s right of action shall not abate or be extinguished by the person‘s death but shall pass . . . to the person‘s natural parents or parent or next of kin if at the time of death decedent was in the custody of the natural parents or parent and had not been legally surrendered or abandoned by them pursuant to any court order removing such person from the custody of such parents or parent; or otherwise to the person‘s legally adoptive parents or parent, or to the administrator for the use and benefit of the adoptive parents or parent.

Section 20-5-107(a) of the Tennessee Code Annotated: The action may be instituted by the personal representative of the deceased or by the surviving spouse in the surviving spouse‘s own name, or, if there is no surviving spouse, by the children of the deceased or by the next of kin.

Section 20-5-107(b) of the Tennessee Code Annotated: In no event shall a parent be permitted to recover through an action commenced pursuant to subsection (a) until all child support arrearages, together with interest on the child support arrearages, at the legal rate of interest computed from the date each payment was due, have been paid in full to the parent ordered to receive the support or to the parent‘s estate if deceased.

Section 20-5-113 of the Tennessee Code Annotated: The party suing for a person‘s death caused by the wrongful act, fault or omission of another . . . shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received.

The level of damages that may be recovered in a wrongful death action "is a matter dependent most largely upon the judgment of the jury and their sound discretion, after carefully, honestly and fairly considering all the various elements that enter into the question." Crowe v. Provost , 374 S.W. 2d 645 (Tenn. Ct. App.

1963). Courts in Tennessee have approved what were deemed "substantial" damages awards "notwithstanding the fact that [the minor involved] had never been gainfully employed." Id.

Damages are "to be measured by the experience and judgment of the jury, enlightened by a knowledge of the age, sex, and physical and mental characteristics of the child." Id.

In cases where "damages

309

are claimed for the death of a child incapable of earning anything or rendering service of any value, it has been held that the jury must make their estimate of damages from the facts proved, and it is not necessary that any witness should express an opinion of the amount of such pecuniary loss, it being proper for the jury to exercise their own judgment upon the facts proved, by connecting them with their own knowledge and experience which they are supposed to possess in common with the generality of mankind." Id.

Courts have stated that "substantial damages may be awarded based solely on the other factors used to determine the pecuniary value of life: life expectancy, age, health and personal habits." Bradford v. Swain , 1989 Tenn. App. LEXIS 8 (Ct. App. Tenn. 1989).

The Tennessee Court of Appeals found that, based upon the facts in the case, "[i]t

[was] reasonable for the jury to find that [the minor], who was healthy except for this illness, would have an earning capacity of at least minimum wage between the ages of sixteen and sixty-five." Id.

II. Jury Instruction a. Wrongful Death. T.P.I. - CIVIL 14.30.

In this case, suit has been brought for damages alleging the death of

[( deceased )] was caused by the fault of the defendant. If you decide to award damages, there are two classes of damages you may consider:

First, those damages sustained immediately by the injured party including compensation for the following:

1. The mental and physical suffering actually endured by the injured party between the injury and death;

2. Medical expenses necessitated by the injury, including expenditures for doctors, nurses, hospital care, medicine and drugs;

3. Reasonable funeral expenses; and

4. Loss of earning capacity during the period from injury to death.

You may not speculate as to whether conscious pain and suffering actually did exist between injury and death. If, however, you find that there was such pain and suffering prior to death, you must award damages for it.

The second class of damages that may be awarded is the present case value of the pecuniary value of the life of the deceased. In determining this value, you should take into consideration the following factors:

1. The age of the deceased;

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2. The condition of health of the deceased;

3. The life expectancy of the deceased;

4. The strength and capacity of the deceased for work and for earning money through skill in any art, trade, profession, occupation, or business;

5. The personal habits of the deceased as to sobriety and industry; and

6. The reasonable value of the loss of consortium suffered by the [wife] [and] [children] of the deceased.

―Consortium‖ is a legal term consisting of several elements. It includes both tangible services provided by a family member, as well as intangible benefits each family member receives from the continued existence of other family members. Such intangible benefits include love, affection, attention, education, guidance, care, protection, training, companionship and cooperation [and, in the case of a spouse, sexual relations] that the

[wife] [and][children] would reasonably be certain to have received during the life of the deceased.

[In determining whether to award damages for loss of consortium for the death of a parent, you should consider the age of the [child] [children], closeness of relationship, dependence and any other factors that reflect upon the relationship between parent and child.]

In weighing these factors, you should consider the fact that expectancy of life, is, at most, a probability based upon experience and statistics. You should be mindful of the possibility that the earnings of an individual are not always uniform over a period of time. You should consider not only the most optimistic expectations of the future, but also the most pessimistic, and all of the uncertainties between the extremes.

Finally, when determining the amount of damages based upon life expectancy and earning capacity, you should deduct the present cash value of the deceased‘s living expenses had the deceased lived. These living expenses are those that under the decease‘s standard of living would have been reasonably necessary to keep the deceased in such a condition of health and well-being as to maintain the capacity to earn money. b. Present Cash Value – Wrongful Death. T.P.I. - CIVIL 14.31.

I have used the expression ―present case value‖ in these instructions concerning damages for certain losses that may be awarded in this case.

311

In determining the pecuniary value of the life of [( deceased )], you must adjust the award to allow for the reasonable earning power of money and the impact of inflation.

―Present cash value‖ means the sum of money needed now, which when added to what that sum may reasonably be expected to earn in the future when invested, would equal the amount of damages at the time in the future when the earnings would have been received, living expenses incurred and the loss of consortium experienced. You should also consider the impact of inflation, its impact on wages and its impact on purchasing power in determining the present cash value of future damages.

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TEXAS

M. Scott Fisher, Jr.

Harman Claytor Corrigan & Wellman


(804) 747-5200




―[A]n unemancipated minor cannot recover for hospital and medical expenses incurred during his minority and for loss of earnings during his minority. It is the parent who is responsible for the medical expenses and who is entitled to recover for those expenses and for loss of earnings during minority.‖ Kennedy v.

Kennedy , 505 S.W.2d 393, 397 (Tex.Civ.App. 1974).

2. Future Medical Expenses. A minor may recover ―any medical expenses that she may in reasonable probability incur after her eighteenth birthday.‖

Sax v. Votteler , 648 S.W.2d 661,

667 (Tex.1983).

Because a parent is primarily liable for a minor's medical expenses incurred during minority and any cause of action for medical expenses incurred up to age of 18 belongs to such parent, the parent has the burden to request submission of future medical expenses into separate parts: future medical expenses for the minor between the time of trial and time he or she reaches age of majority and the future medical expenses for minor after he or she reaches such age.‖

Roth v.

Law , 579 S.W.2d 949 (Tex. Civ. App. 1979).

3. Loss of Income During Infancy.

―[S]ince the services and earnings of an unemancipated minor belong to his parents, an infant may not recover for diminution of his earning capacity during the period intervening between the injury and his attainment of majority.‖ Sax v.

Votteler, 648 S.W.2d 661, 666 (Tex. 1983) (citing Texas & P. Ry. Co. v. Morin , 66 Tex. 225, 227, 18 S.W. 503, 503 (Tex. 1886)).

4. Future Lost Wages. A child may recover for loss of earning capacity after attaining the age of 18. See Sax v. Votteler, 648 S.W.2d 661,

666 (Tex. 1983) (finding that, if a minor could prove her medical malpractice case, she could recover her loss of earning capacity after reaching the age of 18). See also Morrell v. Finke , 184 S.W.3d 257

(Tex.App.–Fort Worth 2005) (affirming a jury award of $1.8 million in damages for a minor‘s loss of earning capacity).

5. Loss of Child Services. As a general rule , a claim for loss of services of a minor is considered to be community property of the parents for

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which only the father may sue. Loving v. Laird , 42 S.W.2d 483,

484 (Tex.Civ.App. 1931). However, a mother may recover for loss of services if the father has abandoned the child. Id.

Nonetheless, the father may be a necessary party to the suit if there are no pleadings addressing his relationship with the child. Houston Oxygen Co. v.

Davis , 139 Tex. 1, 4, 161 S.W.2d 474, 475 (Tex. Com. App. 1942).


―We conclude that no compelling social policy impels us to recognize a parent's right to damages for the loss of filial consortium.‖

Roberts v. Williamson , 111

S.W.3d 113, 120 (Tex. 2003).


1.

Physical Pain and Suffering. A minor may recover damages for pain and suffering, mental anguish, both past and future, as well as any other damages that are peculiar to her or may accrue after she reaches the age of majority. Sax v. Votteler , 648 S.W.2d 661, 667 (Tex. 1983).

2.

Punitive Damages. Exemplary damages may be award to a minor.

See Badeaux v. D.D.

, 2011 WL 1045525, 3 (Tex.App.–Beaumont

2011) (upholding an award of $500,000 in exemplary damages to a minor in a personal inury case where the defendant had been convicted of aggravated sexual assault). However, exemplary damages may be awarded only if the minor proves by clear and convincing evidence that the harm for which he seeks recovery of exemplary damages results from fraud, malice or gross negligence. See V.T.C.A., Civil

Practice & Remedies Code § 41.003 (a) and (b). Moreover, exemplary damages may only be awarded if the jury is unanimous, and the jury must have been instructed as follows: ―You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unanimous.‖

Id.

at §

41.003(d) and (e). Additionally, exemplary damages may not exceed an amount equal to the greater of: (1) two times the amount of economic damages plus the amount of noneconomic damages found by the jury, not to exceed $750,000 or (2) $200,000. Id.

at § 41.008.

Finally, the statutory cap on punitive damages does not apply to cases where the conduct complained of is described as a felony within the statutorily prescribed list of felonies (e.g., murder, aggravated assault, aggravated kidnapping, sexual assault) and the conduct was committed knowingly and intentionally. Id.

at § 41.008(c).


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An injury to a minor proximately caused by negligence of another gives the minor a cause of action maintainable through parent as next friend. Fall v.

Weber , 47 S.W.2d 365 (Tex.Civ.App.Dallas 1932). A parent, as next friend, may prosecute an action both on behalf of the minor and as plaintiff for expenses incurred by reason of the minor‘s injuries. Vernon's.

Kennedy v. Missouri Pacific

R. Co.

, 778S.W.2d. 552 (Tex. App. Beaumont 1989); see also Texas Rules Civ.

Proc. Rule 44.

As a general rule, parents have the right to recover medical expenses incurred during the child‘s minority since they are responsible for the medical expenses. Kennedy v. Kennedy , 505 S.W.2d 393, 397 (Tex.Civ.App. 1974).

However, if the minor has been emancipated, she can recover her hospital and medical expenses incurred during her minority. Id. Once a minor reaches the age of eighteen, she may recover ―any medical expenses that she may in reasonable probability incur after her eighteenth birthday. Sax v. Votteler , 648 S.W.2d 661,

667 (Tex.1983).

In cases where the parents are seeking to recover a minor‘s medical expenses beyond the age of majority, the parents have the burden to request submission of future medical expenses into separate parts: future medical expenses for the minor between the time of trial and time he or she reaches age of majority and the future medical expenses for minor after he or she reaches such age. Roth v. Law , 579 S.W.2d 949 (Tex. Civ. App. 1979).


Wrongful death actions for a minor are for the exclusive benefit of the parents. See V.T.C.A., Civil Practice & Remedies Code § 71.004.


V.T.C.A., Civil Practice & Remedies Code § 71.004 provides:

(a) An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.

(b) The surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all.

(c) If none of the individuals entitled to bring an action have begun the action within three calendar months after the death of the injured individual, his executor or administrator shall bring and prosecute the action unless requested not to by all those individuals.

315


While parents may not make a claim for loss of society in a personal injury action for their minor child, parent can recover for mental anguish, loss of companionship, and loss of society in a wrongful death action. See Gulf States

Utilities Co. v. Reed , 659 S.W.2d 849, 853 (Tex. App. 14 Dist. 1983) (finding that the trial court properly instructed the jury on elements of damages consisting of value of deceased son's earnings during minority, future contributions to parents during majority, parents' loss of society, and parents' mental anguish).

1. V.T.C.A., Civil Practice & Remedies Code §71.009 – Exemplary

Damages

When the death is caused by the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.

2. V.T.C.A., Civil Practice & Remedies Code §71.010 – Award and

Apportionment of Damages

(a) The jury may award damages in an amount proportionate to the injury resulting from the death.

(b) The damages awarded shall be divided, in shares as found by the jury in its verdict, among the individuals who are entitled to recover and who are alive at that time.

3. V.T.C.A., Civil Practice & Remedies Code §71.011 – Damages Not

Subject to Debts

Damages recovered in an action under this subchapter are not subject to the debts of the deceased.

316

UTAH

Deirdre McGlinchey

Michelle L. Miller

Cara E. Hall

McGlinchey Stafford PLLC

New Orleans, Louisiana

(504) 586-1200


A parent or guardian may bring an action for the injury of a minor child when the injury is caused by the wrongful act or neglect of another. Utah Code

Ann. §78A-2-227.

If a parent, stepparent, adoptive parent, or legal guardian is the alleged defendant in an action for the injury of a child, a guardian ad litem may be appointed for the injured child. Utah Code Ann. §78A-2-227.


1. Damage for Loss of Time and Earnings.

Injured plaintiffs are allowed to recover damages for loss of time and earnings. Allen v.

U.S.

, 1984, 588 F.Supp. 247, reversed 816 F.2d 1417, certiorari denied

108 S.Ct. 694, 484 U.S. 1004, 98 L.Ed.2d 647.

2. Impairment of Future Earning Capacity.

Injured plaintiffs are allowed to recover damages for impairment of future earning capacity.

Allen v. U.S.

, 1984, 588 F.Supp. 247, reversed 816 F.2d 1417, certiorari denied 108 S.Ct. 694, 484 U.S. 1004, 98 L.Ed.2d 647.

3. Expenses of Drugs, Nursing, and Medical Care.

Injured plaintiffs are allowed to recover for expenses incurred for drugs, nursing, and medical care. Utah Code Ann. §78-11-6 and 78-11-7; Allen v. U.S.

,

1984, 588 F.Supp. 247, reversed 816 F.2d 1417, certiorari denied 108

S.Ct. 694, 484 U.S. 1004, 98 L.Ed.2d 647; C.S. v. Nielson , 767 P.2d

504, 510 (Utah 1988).

4. Future Medical Costs.

Future medical costs are recoverable in a personal injury suit. Florez v. Schindler Elevator Corp.

, 2010 Ut.

App. 254, 240 P.3d 107.


1. Pain and Suffering. Injured plaintiffs are allowed to recover general and special damages that naturally and necessarily result from the

317

harm done, including pain and suffering. Utah Code Ann. §78-11-6,

78-11-7. Allen v. U.S.

, 1984, 588 F.Supp. 247, reversed 816 F.2d 1417, certiorari denied 108 S.Ct. 694, 484 U.S. 1004, 98 L.Ed.2d 647.

The pain and suffering for which damages are recoverable in a personal injury action include not only physical pain but also mental pain or anguish, that is, the mental reaction to that pain and to the possible consequences of the physical injury. Included in mental pain and suffering is the diminished enjoyment of life, as well as the humiliation and embarrassment resulting from permanent scars and disability. Judd v. Rowley's Cherry Hill Orchards, Inc.

, 611 P.2d

1216, 1221 (Utah 1980).

2. Aggravation of Pre-existing Disease. Injured plaintiffs are allowed to recover damages for aggravation of a preexisting disease by the injury. Utah Code Ann. §78-11-6, 78-11-7. Allen v. U.S.

, 1984, 588

F.Supp. 247, reversed 816 F.2d 1417, certiorari denied 108 S.Ct. 694,

484 U.S. 1004, 98 L.Ed.2d 647.

3. Punitive Damages. Punitive damages may be awarded in exceptional cases. Utah Code Ann. §78-11-7; Behrens v. Raleigh Hills Hosp., Inc.

,

675 P.2d 1179 (Utah 1983). Punitive damages may be imposed if the defendant‘s conduct is willful and malicious or manifests a knowing and reckless indifference and disregard toward the rights of others.

Johnson v. Rogers , 763 P.2d 771, 774 (Utah 1988).

III. Jury Instructions a. Allocation of fault.

[Name of party] claims that more than one person‘s fault was a cause of the harm. If you decide that more than one person is at fault, you must decide each person's percentage of fault that caused the harm. This allocation must total 100%.

You may also decide to allocate a percentage to the plaintiff. [Name of plaintiff]'s total recovery will be reduced by the percentage that you attribute to [him]. If you decide that [name of plaintiff]'s percentage is

50% or greater, [name of plaintiff] will recover nothing.

When you answer the questions on damages, do not reduce the award by

[name of plaintiff]'s percentage. I will make that calculation later.

Model Utah Jury Instructions, Second Edition, citing Utah Code §78B-5-

817(2); 78B-5-818; 78B-5-820; Bishop v. GenTec , 2002 UT 36; Haase v.

318

Ashley Valley Medical Center, 2003 UT App 260; Biswell v. Duncan , 742

P.2d 80, (Utah App. 1987). b. Economic and Non-economic Damages

I will now instruct you about damages. My instructions are given as a guide for calculating what damages should be if you find that [name of plaintiff] is entitled to them. However, if you decide that [name of plaintiff] is not entitled to recover damages, then you must disregard these instructions.

If you decide that [name of defendant]'s fault caused [name of plaintiff]'s harm, you must decide how much money will fairly and adequately compensate [name of plaintiff] for that harm. There are two kinds of damages: economic and non-economic. c. Proof of damages

To be entitled to damages, [name of plaintiff] must prove two points:

First, that damages occurred. There must be a reasonable probability, not just speculation, that [name of plaintiff] suffered damages from [name of defendant]'s fault.

Second, the amount of damages. The level of evidence required to prove the amount of damages is not as high as what is required to prove the occurrence of damages. There must still be evidence, not just speculation, that gives a reasonable estimate of the amount of damages, but the law does not require a mathematical certainty.

In other words, if [name plaintiff] has proved that [he] has been damaged and has established a reasonable estimate of those damages, [name of defendant] may not escape liability because of because of some uncertainty in the amount of damages.

Model Utah Jury Instructions, Second Edition, citing F. Atkin Wright &

Miles v. Mountain States Telephone & Telegraph Co., et al.

, 709 P.2d 330,

336 (Utah 1985); Renegade Oil, Inc. v. Progressive Cas. Ins. Co ., 2004

UT App 356; Sohm v Dixie Eye Center , 2007 UT App 235, 166 P.3d 614. d. Economic damages defined.

Economic damages are the amount of money that will fairly and adequately compensate [name of plaintiff] for measurable losses of money or property caused by [name of defendant]'s fault.

319

Model Utah Jury Instructions, Second Edition. e. Non-economic damages defined.

Non-economic damages are the amount of money that will fairly and adequately compensate [name of plaintiff] for losses other than economic losses.

Non-economic damages are not capable of being exactly measured, and there is no fixed rule, standard or formula for them. Non-economic damage must still be awarded even though they may be difficult to compute. It is your duty to make this determination with calm and reasonable judgment. The law does not require the testimony of any witness to establish the amount of non-economic damages.

In awarding non-economic damages, among the things that you may consider are: the nature and extent of injuries; the pain and suffering, both mental and physical; the extent to which [name of plaintiff] has been prevented from pursuing [his] ordinary affairs; the degree and character of any disfigurement; the extent to which [name of plaintiff] has been limited in the enjoyment of life; and whether the consequences of these injuries are likely to continue and for how long.

Model Utah Jury Instructions, Second Edition, citing C.S. v. Nielson , 767

P.2d 504 (Utah 1988); Judd v. Rowley’s Cherry Hill Orchards, Inc.

, 611

P.2d 1216 (Utah 1980). f. Calculation of Damages

While you may not award damages based upon speculation, the law requires only that the evidence provide a reasonable basis for assessing the damages but does not require a mathematical certainty.

320

I will now instruct you on particular items of economic and non-economic damages presented in this case.

Model Utah Jury Instructions, Second Edition, citing C.S. v. Nielson, 767

P.2d 504 (Utah 1988); Judd v. Rowley‘s Cherry Hill Orchards, Inc., 611

P.2d 1216 (Utah 1980). g. Medical care and related expenses.

Economic damages include reasonable and necessary expenses for medical care and other related expenses incurred in the past and those that will probably be incurred in the future.

Model Utah Jury Instructions, Second Edition, citing

Judd v. Rowley’s

Cherry Hill Orchards, Inc.

, 611 P.2d 1216 (Utah 1980). h. Lost earnings. [Lost earning capacity.]

Economic damages include past and future lost earnings, including lost benefits, [and lost earning capacity].

Calculate past lost earnings from the date of the harm until the trial.

[Calculate future lost earnings from the date of trial forward.]

[Lost earning capacity is not the same as lost earnings. Lost earning capacity means the lost potential to earn income. In determining lost earning capacity, you should consider:

[name of plaintiff]'s actual earnings;

[his] work before and after [describe event]; what [he] was capable of earning had [he] not been injured; and any other facts that relate to [name of plaintiff]'s employment.]

Model Utah Jury Instructions, Second Edition, citing A. Cohn v. J. C.

Penney Co.

, 537 P.2d 306 (Utah 1975); B. Dalebout v. Union Pacific R.

Co.

, 1999 UT App 151, 980 P.2d 1194, 1200 (Utah App. 1999); Corbett v.

Seamons dba Big O Tire , 904 P.2d 229, 232, N.2 (Utah App. 1995); Utah

Code Section 78B-5-824.

321

Who Owns the Right to Sue for Medical Expenses for a Minor Child? If

Parent, Does that End at Age of Majority?

Except as provided in Title 34A, Chapter 2, Workers' Compensation Act, parent or guardian may bring an action for the injury of a minor child when the injury is caused by the wrongful act or neglect of another. Utah Code Ann. §78A-

2-227. If a parent, stepparent, adoptive parent, or legal guardian is the alleged defendant in an action for the injury of a child, a guardian ad litem may be appointed for the injured child according to the procedures outlined in Section

78A-2-227. Utah Code Ann. §78A-2-227.

Utah‘s Tolling Statutes provide that a person may not bring an action while under the age of majority or mentally incompetent without a legal guardian.

During the time the person is underage or incompetent, the statute of limitations for a cause of action other than for the recovery of real property may not run.

Utah Code Ann. §78B-2-108.


Except as provided in Title 34A, Chapter 2, Workers' Compensation Act, when the death of a person is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death, or, if the person is employed by another person who is responsible for his conduct, then against the other person. Utah Code Ann. § 78B-3-106.


1. Funeral and Medical Expenses.

A parent may recover for the wrongful death of a child such damages as funeral and medical expenses. Jones v. Carvell , 641 P.2d 105 (Utah 1982).

2. Value of Services Rendered to Household and Child’s Earnings.

Parents may recover for the lawful death of child the value of services he might have rendered to household, and amount of money the deceased child might have earned, if its projected income would have exceeded cost of its maintenance and care. Utah Code Ann. §78B-3-

102; Jones v. Carvell , 641 P.2d 105 (Utah 1982).


1. Loss of Society, Love, Companionship, Protection and Affection.

If the parent of a deceased minor child can prove the elements of the wrongful death cause of action, the parent's recoverable damages may include intangibles such as loss of the child's society, companionship,

322

protection, and affection. Utah Code Ann. § 78B-3-102 (West);

Adkins v. Uncle Bart's, Inc., 2000 UT 14, 1 P.3d 528.

To assign a monetary value to loss of comfort, society, love, companionship, advice, and protection, the trier of fact may consider factors relating to the physical, emotional, and psychological relationship between the deceased and those entitled to recover. Jones v. Carvell, 641 P.2d 105 (Utah 1982).

2. Punitive Damages. Punitive damages may be imposed if the defendant‘s conduct is willful and malicious or manifests a knowing and reckless indifference and disregard toward the rights of others.

Johnson v. Rogers, 763 P.2d 771, 774 (Utah 1988).

The wrongful death statute permits recovery of punitive damages in appropriate cases, in view of broad statutory language which permits recovery for nonpecuniary losses, liberal construction that has been placed on that language, and desirability of having rule of law in wrongful death cases consistent with general tort law. Utah Code

Ann. §78-11-7; Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179

(Utah 1983).

3. No Compensation for:

Pain and Suffering of the Deceased:

Survivors are not entitled to recover compensation for the pain and suffering of those who are dead. Utah Code Ann. §78-11-6; 78-11-7.

Allen v. U.S.

, 588 F.Supp. 247 Utah 1984), reversed 816 F.2d 1417, certiorari denied 108 S.Ct. 694, 484 U.S. 1004, 98 L.Ed.2d 647.

―Investment Theory of Damages:‖

The cost of rearing a deceased child to the age it had obtained at the time of death may not be considered a separate measure of damage, but may demonstrate the nature of the psychological investment which contributes to the loss of love. Parents are not entitled to recover the amount and affection. Jones v. Carvell , 641 P.2d 105 (Utah 1982).

Parents‘ Lost Opportunity Costs:

A parent is not entitled to recover the amount of money he or she would have earned had the child not been born and had the parent instead entered the work force. Jones v. Carvell , 641 P.2d 105 (Utah

1982).

323

4. Additional Factors to Consider: Damages in wrongful death are not limited to the period of time during which the deceased would have been a minor. Beaman v. Martha Washington Mining Co.

, 23 Utah

139, 63 P. 631, 632 (1901).

III. Jury Instructions a. Wrongful death claim. Minor. Factors for deciding damages.

Damages include an amount that will compensate [name of plaintiff] for the loss suffered due to [name of decedent]'s death. Calculate the amount based on all circumstances existing at the time of [name of decedent]'s death that establish [name of plaintiff]'s loss, including the following:

The loss of financial support, past and future, that [name of plaintiff] would likely have received, or been entitled to receive, from [name of decedent] had [name of decedent] lived. This amount should be reduced by the costs that [name of plaintiff] would likely have incurred to support [name of decedent] had the child survived, until the child reached 18 years of age.

The loss of love, companionship, society, comfort, care, protection and affection which [name of plaintiff] has sustained and will sustain in the future.

The age, health and life expectancies of [name of decedent] and

[name of plaintiff] immediately prior to the death.

The loss of inheritance from [name of decedent] [name of plaintiff] is likely to suffer because of [name of decedent]'s death.

Any other evidence of assistance or benefit that [name of plaintiff] would likely have received had [name of decedent] lived.

The reasonable and necessary expenses incurred by [name of plaintiff] for [name of decedent] for any medical care because of

[circumstances causing death].

The reasonable expenses that were incurred for [name of decedent]'s funeral and burial.

[In determining this award, you are not to consider any pain or suffering of

[name of decedent] prior to [his] death.]

324

Model Utah Jury Instructions, Second Edition, citing Utah Code Sections

78B-3-102, 78B-3-106 and 78B-3-107; Jones v. Carvell , 641 P.2d 105

(Utah 1982); In re Behm's Estate , 117 Utah 151, 213 657 (1950); Allen v.

United States , 588 F. Supp. 247 (D. Utah 1984); Platis v. United States ,

288 F. Supp. 254 (D. Utah 1968), aff'd, 409 F.2d 1009 (10th Cir. 1969).

325

VERMONT

Martha C. Gaythwaite

Phillip S. Bixby

Friedman Gaythwaite Wolf & Leavitt

Portland, Maine

(207) 761-0900


I.

Damages

A minor may recover personal injury damages for any bodily injury and any pain and suffering, disability, disfigurement, mental anguish, and loss of enjoyment of life both past and future. Damages are also recoverable for medical expenses, property damage, and lost earnings and earning capacity. See Vermont

Civil Jury Instruction Committee Plain English Jury Instructions 11.2 through

11.5.

II. Model Jury Instructions a. 11.2- Personal Injury Damages .

[Name of Plaintiff] is entitled to compensation for any bodily injury and any pain and suffering, disability, disfigurement, mental anguish, and loss of enjoyment of life experienced in the past, or probably to be experienced

[by him/her] in the future. Award these damages for any harm you find caused by [describe event at issue]. There is no particular formula to calculate this compensation. You should make sure that any amount awarded to [Name of Plaintiff] is fair to the parties in this case in light of the evidence you heard.

See Vermont Civil Jury Instruction Committee Plain English Jury

Instructions 11.2.

Who ―owns‖ the right to sue for medical expenses?

Pursuant to 14 V.S.A. §2662, a parent (or guardian) has the right to represent the child in legal actions. See also Vermont Rule of Civil Procedure

17(b). Pursuant to 14 V.S.A. § 2643, settlements on behalf of minors must be approved by the court if they exceed $1,500.00.

When a minor child is hurt by negligent act of a third party, two causes of action potentially spring into existence, one being a right of action by the child itself for personal injury and a second potentially being a right of action by the parent for consequential damages cause by the injury to the child. See Trapeni v.

Walker , 120 Vt. 510, 516 (Vt. 1958). A parent may recover medical expenses paid on behalf of the child, but a child may recover those expenses in their own

326

suit if they paid such expenses or became legally obligated to pay them. See

Verchereau v. Jameson , 122 Vt. 189, 194 (Vt. 1961).


I.

Damages

Vermont‘s wrongful death statute is codified in 14 V.S.A. §1492. 14

V.S.A. §1492(b) lists recoverable damages in a wrongful death action. Such damages include damages for ―pecuniary injuries‖ resulting from the death to the next of kin. In a case where the decedent is a minor child, the term ―pecuniary injuries‖ is not limited to purely economic losses and shall also include the loss of love and companionship of the child and for destruction of the parent-child relationship ―in such amount as under all the circumstances of the case, may be just.‖ 14 V.S.A. §1492(b). Recoverable economic losses would include medical and funeral expenses and lost support and services if applicable. Conscious pain and suffering damages are also recoverable in a survival action, which is authorized by 12 V.S.A. §557.

II.

Model Jury Instructions.

Vermont‘s civil jury instructions include instructions for compensating next of kin in a wrongful death suit, and are set forth below: a. 11.6- Wrongful Death Damages - General Instruction .

Under Vermont law, when the death of a person is caused by a wrongful act of another person, the deceased person's next of kin can receive compensation from the responsible person. That is the type of claim made in this case. [Name of Plaintiff] represents the next of kin. If you find for

[Name of Plaintiff] in this case, you shall consider the following instructions regarding damages for this claim: . . . b.

11.7-Life Expectances- Wrongful Death .

In determining the amount to award, you need to consider how long

[Name of Decedent] would have lived during a normal life and how many years [the next of kin] are expected to live. [ If applicable: I instruct you that the normal life expectancy for [Name of Decedent] is __. I instruct you that the normal life expectancy for [the next of kin] is __.] c.

11.8-Medical and Funeral Expenses- Wrongful Death . [Name of Plaintiff] should receive compensation for medical and funeral expenses caused by [Name of Decedent]'s injury and death.

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d. 11.9- Lost Support and Services,- Wrongful Death.

[Name of Plaintiff] should receive compensation for the loss of [Name of

Decedent]'s income that would have benefited [the next of kin], and other economic support and services provided by [Name of Decedent] that would have benefited [the next of kin] to the present and in the future if

[Name of Decedent] had not died as a result of the events you heard about at trial. When considering [Name of Decedent]‘s life expectancy for this calculation, you should consider [Name of Decedent]‘s expected working life. e. 11.10- Non-Economic Damages .

[ Modify as necessary due to Decedent's status as child or adult and next of kin's status as spouse, child, or parent ] [Name of Plaintiff] should receive compensation for [the loss of love and companionship;] [care, nurture, and protection;] [the loss of the love and companionship of a child;] and [the loss of the parent-child relationship] that [the next of kin] would have expected to the present and in the future if [Name of Decedent] had not been killed as a result of the events described at trial. They also should receive compensation for the grief and mental anguish they have suffered to the present and probably will suffer in the future as a result of [Name of

Decedent‘s] death. There is no exact formula to calculate this compensation. You should make sure that any amount awarded to [Name of Plaintiff] is fair to the parties in this case in light of the evidence you heard. Among types of evidence you may consider are the physical, emotional, and psychological relationship between [Name of Decedent] and [the next of kin], the living arrangements of the family, the harmony of family relations, and their shared interests and activities. f.

11.11- Survival Action- Wrongful Death.

[Name of Plaintiff] represents [Name of Decedent]'s Estate and is entitled to payment for [ list as applicable ] : medical expenses related to [Name of

Decedent]'s injury and death; lost wages for the period of [Name of

Decedent]'s injury; and conscious pain and suffering of [Name of

Decedent] during [his/her] injury.

See Vermont Civil Jury Instruction Committee Plain English Jury

Instructions 11.6 through 11.11.

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VIRGINIA

Lynne J. Blain

Dannel C. Duddy

Brian R. Cannon


I.


(804) 747-5200



1. Property Damages – Property damages are recoverable.

2. Medical and Other Related Expenses – Medical and related expenses incurred as a result of such wrongful or negligent act or omission or breaches of warranty are recoverable. A plaintiff‘s lay testimony alone may lay foundation for medical bills if foundations showing the (i) bills are regular on their face and (ii) that they appear to relate to treatment described by the plaintiff. If defendant challenges the authenticity of the bills, then independent authentication and proof, usually in the form of expert testimony, is required. If defendant challenges the reasonableness of the bills, then it is a jury issue where the defendant may present evidence against their reasonableness. If the defendant challenges the medical necessity or causal relationship with rebuttal testimony, then the bills need independent authentication and proof. McMunn v. Tatum , 237 Va.

558, 569-570, 379 S.E.2d 908, 914 (1989).

3. Future Medical Expenses – With evidence to support it, an award of future medical expenses is appropriate. Virginia requires more specificity than just testimony from a doctor of a permanent disability to award future medical expenses. Minnix v. Hall , 267 Va. 369, 595

S.E.2d 271 (2004).

4. Collateral Source Rule – Virginia does not allow collateral sources of recovery, such as insurance, to credit against the amount of damages owed by a defendant tortfeasor. Walthew v. Davis , 201 Va. 557, 563,

111 S.E.2d 784, 788 (1960).

5. Loss of Wages or Wage-Earning Capacity – An infant who has never worked for employment may recover damages for future lost earnings or diminution of capacity to earn. However, statistical averages are not enough by themselves to meet the burden of an

329

―intelligent and probable estimate‖ of the loss.

Bulala v. Boyd , 239

Va. 218, 233, 389 S.E.2d 670, 678 (1990).

The evidence presented should tie into the ―facts and circumstances personal to the plaintiff as an individual,‖ not just as part of a statistical classification of people. Id . Evidence of lost earning capacity founded on assumptions from statistics without basis in fact

―is not merely subject to refutation by cross-examination or by counter-experts; it is inadmissible.‖ Vasquez v. Mabini , 269 Va. 155,

161, 606 S.E.2d 809, 812 (2005).


1. Pain, Suffering, and Mental Anguish – Physical pain may be proven directly or through inference based on circumstances. Wallen v. Allen ,

231 Va. 289, 294, 343 S.E.2d 73, 76 (1986). Virginia recognizes

―mental anguish‖ and ―mental suffering‖ as indistinguishable.

Sanford v. Ware , 191, Va. 43, 60 S.E.2d 10 (1950). Since Virginia has not recognized ―loss of enjoyment of life‖ as independently compensable, that type of loss is best categorized as mental anguish. Bulala v. Boyd ,

239 Va. 218, 389 S.E.2d 670 (1990).

2. Humiliation and Embarrassment from Disfigurement and

Deformity – There needs to be direct evidence of the disfigurement or deformity, but an inference may be made from that to the humiliation and embarrassment. Armistead v. James , 220 Va. 171, 257 S.E.2d 767

(1979).

3. Inconvenience – This is often included in the instruction for pain and suffering, but is a separate element. A plaintiff may recover for any prior inconvenience and any that will probably occur in the future.

Todt v. Shaw , 233 Va. 123, S.E.2d 211 (1982).

4. Punitive Damages

– The Supreme Court of Virginia defines punitive damages as those ―imposed as punishment upon a wrongdoer who has acted wantonly, oppressively, or recklessly, or with such negligence as evinces a disregard for the rights of others, or criminal indifference to civil obligations.‖ Barker v. Marcus, 201 Va. 905, 908, 114 S.E.2d

617, 620 (1960).

In general, these damages are reserved to protect the public by serving as a deterrent. Zedd v. Jenkins , 194 Va. 704, 707, 74 S.E.2d 791, 793

(1953). However, it is also possible to use punitive damages to compensate the plaintiff. Stevens v. Abbott, Proctor & Paine , 288 F.

Supp. 836, 848 (E.D. Va. 1968).

330


Instruction No. 9.000

General Personal Injury and Property Damage

If you find your verdict for the plaintiff, then in determining the damages to which he is entitled, you shall consider any of the following which you believe by the greater weight of the evidence was caused by the negligence of the defendant:

(1) any bodily injuries he sustained and their effect on his health according to their degree and probable duration;

(2) any physical pain [and mental anguish] he suffered in the past [and any that he may be reasonably expected to suffer in the future];

(3) any disfigurement or deformity and any associated humiliation or embarrassment;

(4) any inconvenience caused in the past [and any that probably will be caused in the future];

(5) any medical expenses incurred in the past [and any that may be reasonably expected to occur in the future];

(6) any earnings he lost because he was unable to work at his calling;

(7) any loss of earnings and lessening of earning capacity, or either, that he may reasonably be expected to sustain in the future;

(8) any property damage he sustained.

Your verdict shall be for such sum as will fully and fairly compensate the plaintiff for the damages sustained as a result of the defendant‘s negligence.


General Punitive Damages

If you find that the plaintiff is entitled to be compensated for his damages, and if you further believe by the greater weight of the evidence that the defendant acted with actual malice toward the plaintiff or acted under circumstances amounting to a willful and wanton disregard of the plaintiff‘s rights, then you may also award punitive damages to the plaintiff to punish the defendant for his actions and to serve as an example to prevent others from acting in a similar way.

331

If you award punitive damages, you must state separately in your verdict the amount you allow as compensatory damages and the amount you allow as punitive damages.


Reasonable Proof

The burden is on the plaintiff to prove by the greater weight of the evidence each item of damage he claims and to prove that each item was caused by the defendant‘s negligence. He is not required to prove the exact amount of his damages, but he must show sufficient facts and circumstances to permit you to make a reasonable estimate of each item. If the plaintiff fails to do so, then he cannot recover for that item.


Generally in Virginia, the minor owns the causes of action for pain and suffering, permanent injury, and damages to earning capacity. The parent or guardian owns the cause of action for medical expenses incurred for the treatment of the minor and any loss of services the minor may have provided.

The statute of limitations begins to run against a minor once they reach the age of majority with a few exceptions. First, Va. Code § 8.01-243(B) provides that the statute of limitations on injury to property, including those on behalf of minors, is five years.

The only way a minor can recover for medical expenses incurred on their behalf is if they agreed to pay or have paid the expenses, emancipation or incompetency of the parents, the parent waived the right, or recovery is permitted by statute. Moses v. Akers , 203 Va. 130, 122 S.E.2d 864 (1961).

Of note, in a wrongful birth action where negligence administering a test in utero failed to detect Tay-Sachs disease, the parents won emotional damages because of the causal chain linking the negligent test administration to the opportunity to reject the pregnancy to the ensuing emotional distress following the birth. Naccash v. Burger , 223 Va. 406, 290 S.E.2d 825 (1982). The parents were also entitled to recover costs for the care and treatment of their child, but not funeral expenses. Id . at 414, 290 S.E.2d at 831.


Wrongful death actions are defined by statute in Virginia. Damages recoverable are those incurred by the statutory beneficiaries as a result of the decedent‘s death. Although an administrator of the decedent‘s estate may bring a

332

wrongful death claim, there is no recovery to the estate itself or for the decedent‘s own pre-death or expected post-death losses, except to the extent such losses were relied upon by the statutory beneficiaries as described below.


The statutory beneficiaries are listed in Va. Code § 8.01-53(A):

The damages awarded pursuant to § 8.01-52 shall be distributed as specified under § 8.01-54 to (i) the surviving spouse, children of the deceased and children of any deceased child of the deceased or

(ii) if there be none such, then to the parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (iii) if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents or (iv) if there are survivors under clause (i) or clause (iii), the award shall be distributed to those beneficiaries and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (v) if no survivors exist under clause (i), (ii),

(iii), or (iv), the award shall be distributed in the course of descents as provided for in § 64.1-1. Provided, however, no parent whose parental rights and responsibilities have been terminated by a court of competent jurisdiction or pursuant to a permanent entrustment agreement with a child welfare agency shall be eligible as a beneficiary under this section. For purposes of this section, a relative is any person related to the decedent by blood, marriage, or adoption and also includes a stepchild of the decedent.

II. Damages Recoverable

Va. Code § 8.01-52 sets forth the damages recoverable by beneficiaries in a wrongful death action, including a minor wrongful death action:

§ 8.01-52. Amount of damages.

The jury or the court, as the case may be, in any such action under

§ 8.01-50 may award such damages as to it may seem fair and just.

The verdict or judgment of the court trying the case without a jury shall include, but may not be limited to, damages for the following:

1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;

333

2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;

3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;

4. Reasonable funeral expenses; and

5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.

…

The jury has wide latitude in determining awards for elements one and two above. Matthews v. Hicks , 197 Va. 112, 118, 87 S.E.2d 629, 633 (1955).

The statute above provides for punitive damages in wrongful death actions. However, the Eastern District of Virginia has ruled that if the defendant also died, then punitive damages are prohibited. Tarbrake v. Sharp , 894 F.Supp.

270 (E.D. Va. 1995).



Damages: Death by Wrongful Act

If you find your verdict for the plaintiff, then in determining the damages to which he is entitled, you shall include, but are not limited to, any of the following which you believe by the greater weight of the evidence were caused by the negligence of the defendant as damages suffered by the beneficiaries:

(1) any sorrow, mental anguish, and loss of solace suffered by the beneficiaries. Solace may include society, companionship, comfort, guidance, kindly offices, and advice of the decedent;

(2) any reasonably expected loss in income of the decedent suffered by the beneficiaries;

(3) any reasonably expected loss of services, protection, care, and assistance which the decedent provided to the beneficiaries;

(4) any expenses for the care treatment, and hospitalization of the decedent incident to the injury resulting in his death; and

(5) reasonable funeral expenses.

334

If you award damages under paragraphs (1), (2), and (3) above, you may distribute these damages among [between] (name of spouse, children, and children of any deceased child of decedent) or (names of surviving statutory beneficiaries).

If you award damages under (4) and (5) above, you shall specifically state the amount of damages for each.

Governing Statutes: Va. Code Ann. §§ 8.01-52 to 8.01-54 .


Punitive Damages: Death by Wrongful Act

If you find your verdict for the plaintiff, and if you believe by the greater weight of the evidence that the defendant‘s conduct was willful or wanton, or was so reckless as to evince a conscious disregard for the safety of others, then you may also award punitive damages to the plaintiff to punish the defendant for his conduct and to prevent others from acting in a similar way.

If you award punitive damages, you must state separately in your verdict the amount you allow as punitive damages, and you may distribute these damages among [between] (names of spouse, children, and children of any deceased child of decedent) or (names of surviving statutory beneficiaries).

Governing Statutes: Va. Code Ann. § 8.01-52 .

335

WASHINGTON

Kate Stimeling

James Rapore


San Francisco, California

(415) 901-8700



1.


Plaintiffs may recover medical expenses incurred as a result of the defendant‘s negligence. Medical expenses include the reasonable value of necessary medical care, treatment, and services received, for the past, present, and future. 6 W

ASH

.

P

RAC

., W

ASH

.

P

ATTERN

J

URY

I

NSTR

.

C

IV

. WPI 30.07.01-.02 (5th ed.).

2.

Property Damages . Damages to real and personal property are recoverable. Thompson v. King Feed & Nutrition Serv., Inc.

, 105 P.3d

378, 383 (Wash. 2005).

3.

Loss of Wages or Wage-Earning Capacity . Loss of wages and wage-earning capacity are recoverable expenses. Kelley v. Great N.

Ry. Co.

, 371 P.2d 528, 530 (Wash. 1962).


1.

Pain and Suffering and Emotional Distress . A plaintiff may recover for pain and suffering and emotional distress as a result of his or her own physical injuries. Fahndrich v. Williams , 194 P.3d 1005, 1007

(2008).

2.

Disfigurement . Plaintiffs may recover for disfigurement under

Washington Law. W ASH .

R EV .

C ODE A NN . § 4.56.250 (West 2011)

(defining noneconomic damages to include disfigurement)

4

; 6 W

ASH

.

P

ATTERN

J

URY

I

NSTR

.

C

IV

. WPI 30.05 (5th ed.).

3.

Disability.

Plaintiffs may recover for disability, which includes not only the inability to work but also impairment of the ability to lead a normal life. 6 W

ASH

.

P

RAC

., W

ASH

.

P

ATTERN

J

URY

I

NSTR

.

C

IV

. WPI

30.05 (5th ed.).

4.

Loss and Loss of Enjoyment of Life . Plaintiffs may recover for the loss of enjoyment of life. Id.

5.

Punitive Damages . Punitive damages are not recoverable in

Washington. The Washington Supreme Court has held that punitive

4

A portion of Section 4.56.250, unrelated to whether plaintiffs may recover for disfigurement, was held unconstitutional in v. Fibreboard Corp.

, 771 P.2d 711 (Wash. 1989).

336

damages are ―contrary to public policy.‖

Dailey v. N. Coast Life Ins.

Co.

, 919 P.2d 589, 590 (Wash. 1996).

6.

Emotional Distress Caused by Witnessing an Injury . To recover for emotional distress stemming from witnessing an injury to another, the plaintiff must witness ―the victim's injuries at the scene of an accident shortly after it occurs and before there is a material change in the attendant circumstances.‖

Colbert v. Moomba Sports, Inc.

, 176

P.3d 497, 503 (Wash. 2008). Additionally, the plaintiff must

―demonstrate objective symptoms of emotional injury.‖

Id.


Measure of Economic and Noneconomic Damages—Personal

Injury—No Contributory Negligence WPI 30.01.01 (5th ed.).

―It is the duty of the court to instruct you as to the measure of damages. [By instructing you on damages the court does not mean to suggest for which party your verdict should be rendered.

If your verdict is for the plaintiff, then] you must determine the amount of money that will reasonably and fairly compensate the plaintiff for such damages as you find were proximately caused by the negligence of the defendant.

[If you find for the plaintiff] [your verdict must include the following undisputed items:

(Here insert undisputed past economic damage amounts)

In addition] you should consider the following past economic damages elements:

(Here insert appropriate elements from among phrases 30.07.01,

30.08.01, 30.09.01, and 30.10 through 30.16)

In addition you should consider the following future economic damages elements:

(Here insert appropriate elements from among phrases 30.07.02,

30.08.02, and 30.09.02)

In addition you should consider the following noneconomic damages elements:

(Here insert appropriate elements from among phrases 30.04 through

30.06)

337

The burden of proving damages rests upon the plaintiff. It is for you to determine, based upon the evidence, whether any particular element has been proved by a preponderance of the evidence.

Your award must be based upon evidence and not upon speculation, guess, or conjecture.

The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.‖


Both parents and children may sue for medical expenses. Under Revised

Code of Washington Section 4.24.010, parents who have regularly contributed to the support of their minor child may ―maintain or join as a party an action as plaintiff for the injury or death of the child‖ W

ASH .

R EV .

C ODE A NN . § 4.24.010

(West 2012). Because this statute only creates one cause of action, a jury may award damages to each parent separately if they are not married. Id.

As part of this action, the parents may seek medical expenses incurred on behalf of the child.

Id.

; Schurk v. Christensen 497 P.2d 937 (Wash. 1972). The parents and child may not both recover for the same medical expenses. Harbeson v. Parke-Davis, Inc .,

656 P.2d 483, 495 (Wash. 1983).

Damages Recoverable in a Minor Wrongful Death Claim and a Minor

Survivor Action


The personal representative of a decedent may bring a wrongful death claim on behalf of relatives of the decedent. W

ASH

.

R

EV

.

C

ODE

A

NN

. §§

4.20.010, 4.20.020 (West 2011).


The measure of damages in a wrongful death action is ―the actual pecuniary loss suffered by the surviving beneficiaries from the death of a relative.‖

Parrish v. Jones , 722 P.2d 878, 881 (Wash. Ct. App.1986). Pecuniary loss includes not only the monetary contributions that the beneficiary would have received from the decedent had the decedent lived but also includes losses such as the loss of the decedent's support, services, love, affection, care, companionship, society, and consortium. Id.

; 16 W ASH .

P RAC ., T ORT L AW A ND P RACTICE § 6.5

(3d ed.).

However, recovery is not permitted for ―the mental anguish and grief and sorrow of the survivors.‖ 16 W

ASH .

P RAC ., T ORT L AW A ND P RACTICE § 6.5 (3d

338

ed.); Pearson v. Picht , 52 P.2d 314, 316 (Wash. 1935); Pancratz v. Turon , 473

P.2d 409, 413 n. 5 (1970) (Wash. Ct. App.1970) (approving the following wrongful death jury instruction: ―[i]n determining pecuniary loss you are not to consider grief or sorrow of the survivors.‖). Additionally, because wrongful death recovery is for the ―losses of the beneficiary‖, recovery for the decedent‘s pain and suffering is not recoverable. 16 W

ASH

.

P

RAC

., T

ORT

L

AW

A

ND

P

RACTICE

§

6.5 (3d ed.) ( citing Pancratz v. Turon , 473 P.2d 409 (1970) (Wash. Ct.

App.1970)).

As described above, parents may sue for the death of their children under

Revised Code of Washington Section 4.24.010. Parents bringing a Section

4.24.010 action can recover for the mental anguish they incurred as a result of the death of the child. Wilson v. Lund , 491 P.2d 1287, 1288 (Wash. 1971).

Additionally, parents may recover for the following economic damages: ―medical, hospital, medication expenses, and the loss of services and support.‖

Id.

They may also recover for the following noneconomic damages: ―loss of love and companionship of the child‖ and ―injury to or destruction of the parent-child relationship.‖ Id.

III. Survivor Action Damages

A survivor action allows the personal representative of a decedent‘s estate to bring an action for injuries suffered by the decedent. W

ASH

.

R

EV

.

C

ODE

A

NN

.

§§ RCWA 4.20.046, 4.20.060 (West 2011). The general survivor statute RCWA

4.20.046. preserves all causes of action that the decedent could have brought had he or she survived. Rentz v. Spokane County , 438 F. Supp. 2d 1252, 1258 (E.D.

Wash. 2006). The statute also compensates the decedents estate for ―what the decedent would have accumulated if the decedent had survived to life expectancy.‖

Wagner v. Flightcraft, Inc.

, 568, 643 P.2d 906, 912 (Wash. Ct. App.

1982). In addition to recovery for lost earnings of the estate, recovery is available for damages available in ―a garden variety tort action.‖

Chapple v. Ganger , 851

F. Supp. 1481, 1486 (E.D. Wash. 1994). These damages include: medical and hospital expenses, funeral expenses, property damage, pain and suffering if measurable time ensued between the injury and death, and fear experienced by the decedent prior to his or her death. Id.

IV. Model Jury Instructions: a.

Measure of Damages—Wrongful Death—Action for Benefit of

Spouse / State Registered Domestic Partner WPI 31.02.01 (5th ed.)

It is the duty of the court to instruct you as to the measure of damages on plaintiff's claim for losses suffered by (name of spouse / state registered domestic partner). [By instructing you on damages, the court does not mean to suggest for which party your verdict should be rendered.

If your verdict is for the plaintiff, then] you must determine the amount of money that will reasonably and fairly compensate (name of spouse / state

339

registered domestic partner) for such damages as you find were proximately caused by the death of (name of decedent) .


[Here insert undisputed items and amounts]

[In addition] you should consider the following items:

(1) Economic Damages:

(a) [You should consider as past economic damages any benefit of value, including money, goods, and services that (name of spouse / state registered domestic partner) would have received from (name of decedent) up to the present time if (name of decedent) had lived.]

(b) You should [also] consider as future economic damages what benefits of value, including money, goods, and services (name of decedent) would have contributed to (name of spouse / state registered domestic partner) in the future had (name of decedent) lived.

(2) Noneconomic Damages:

You should also consider what (name of decedent) reasonably would have been expected to contribute to (name of spouse / state registered domestic partner) in the way of [marital] [domestic partner] consortium. [―Marital consortium‖ means the fellowship of husband and wife and the right of one spouse to the company, cooperation, and aid of the other in the matrimonial relationship. It includes emotional support, love, affection, care, services, companionship, including sexual companionship, as well as assistance from one spouse to the other.] [―Domestic partner consortium‖ means the fellowship of state registered domestic partners and the right of one domestic partner to the company, cooperation, and aid of the other in the domestic partnership. It includes emotional support, love, affection, care, services, companionship, including sexual companionship, as well as assistance from one domestic partner to the other.]

In making your determinations, you should take into account (name of decedents) age, health, life expectancy, occupation, and habits [of industry, responsibility and thrift] . You should also take into account

(name of decedent's) earning capacity, including (name of decedents) actual earnings prior to death and the earnings that reasonably would have been expected to be earned by (name of decedent) in the future. In determining the amount that (name of decedent) reasonably would have been expected to contribute in the future to (name of spouse / state registered domestic partner), you should also take into account the amount

340

you find (name of decedent) customarily contributed to (name of spouse / state registered domestic partner).



The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions. b.

Wrongful Death Actions Brought by Parent for Death of Child

WPI 31.06.01 (5th ed.)

―It is the duty of the court to instruct you as to the measure of damages [on plaintiffs' claim for personal losses suffered by (names of parents)]. [By instructing you on damages, the court does not mean to suggest for which party your verdict should be rendered.

If your verdict is for the plaintiffs, then] you must determine the amount of money that will reasonably and fairly compensate (names of parents) for such damages as you find were proximately caused by the negligence of the defendant.

[If you find for the plaintiffs] [your verdict must include the following undisputed items:

[here insert undisputed items and amounts]


1. Economic Damages

(a) [The reasonable value of necessary medical care, treatment, and services received by (name of child).]

(b) [The reasonable value of (name of child's) funeral and burial

expenses.]

(c) [The economic value of services and support (name of child) reasonably would have been expected to contribute to (name of parents) from the date of (name of child's) injury [until [he]

[she] would have attained the age of majority], less the cost to

341

(name of parents) of (name of child's) support and maintenance

[during that interval].]

2. Noneconomic Damages

(a) [The loss of love and the destruction of the parent-child relationship between (name of child) and (name of parents), including the grief, mental anguish, and suffering of (name of parents) as a result of (name of child's) death.]

(b) [The loss of companionship, including mutual society and protection, of (name of child) to (name of parents).]

In making your determinations, you should take into account (name of child's) age, health, life expectancy, character, and habits, as well as (name of parents') station in life.



The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.‖ c.

Measure of Damages—Survival Action—Statutory Beneficiaries

WPI 31.01.01 (5th ed.)

―It is the duty of the court to instruct you as to the measure of damages on the plaintiff's claim for personal losses suffered by (name of decedent).

[By instructing you on damages, the court does not mean to suggest for which party your verdict should be rendered.

If your verdict is for the plaintiff, then] you must determine the amount of money that will reasonably and fairly compensate (name of decedent's) estate for such damages as you find were proximately caused by the negligence of the defendant.


[here insert undisputed items and amounts]


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[1. Economic damages:]

[(a)] [1.] The health care and funeral expenses that were reasonably and necessarily incurred.

[(b)] [2.] The net accumulations lost to [his] [her] estate. In determining the net accumulations, you should take into account (name of decedent's) age, health, life expectancy, occupation, and habits of industry, responsibility, and thrift. You should also take into account (name of decedent's) earning capacity, including [his] [her] actual earnings prior to death and the earnings that reasonably would have been expected to be earned by [him] [her] in the future, including any pension benefits.

Further, you should take into account the amount you find that (name of decedent) reasonably would have consumed as personal expenses [or reasonably would have contributed to (names of beneficiaries) during

[his] [her] lifetime] and deduct this from [his] [her] expected future earnings to determine the net accumulations.

[2. Noneconomic damages:]

[3. The pain, suffering, anxiety, emotional distress, humiliation, and fear experienced by [him] [her] prior to [his] [her] death as a result of

(describe event).]



The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.‖

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I.

WASHINGTON, D.C.

James H. Rotondo

Michael P. Pohorylo

Day Pitney LLP

Hartford, Connecticut

(860) 275-0100



1.

Medical Expenses

: Plaintiff‘s damages for past medical expenses are recoverable and should include the value of all reasonably necessary medical and hospital services furnished to the plaintiff. Green v.

United States Postal Service , 589 F. Supp. 2d 58, 68 (D.D.C. 2008)

(citing Albano v. Yee , 219 A.2d 567, 568 (D.C. 1966)).

2.

Loss of Past and Future Earnings : Loss of future earnings; see

District of Columbia v. Barriteau , 399 A.2d 563, 567, 567 n.6 (D.C.

1979); and past earnings; see Bernard v. Calkins , 624 A.2d 1217, 1220

(D.C. 1993); are recoverable.

3.

Property Damage : Damage to property is recoverable pursuant to §

13.01 of the Standardized Civil Jury Instructions for the District of

Columbia . See also Gebremdhin v. Avis-Rent-A-Car System, Inc.

, 689

A.2d 1202, 1202 (D.C. 1997).


1.

Emotional Distress: Emotional distress is recoverable if the distress results from a direct physical injury, the plaintiff was in the zone of physical danger which was caused by defendant‘s negligence, or if the plaintiff is ―physically endangered‖ as a result of the defendant‘s negligence. District of Columbia v. McNeill , 613 A.2d 940, 942-43

(D.C. 1992).

2.

Disfigurement : Disfigurement and embarrassment resulting from disfigurement are recoverable. See Sowell v. Walker , 755 A.2d 438,

447 (D.C. 2000).

3.

Past and Future Inconvenience : Inconvenience is recoverable pursuant to § 13.01 of the Standardized Civil Jury Instructions for the

District of Columbia .

4.

Pain and Suffering : Pain and suffering is recoverable and, in some instances, direct proof is not required where the law can infer pain and

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suffering from a personal injury. See Jones v. Miller , 290 A.2d 587,

591 (D.C. 1972). See also Cunningham v. Conner , 309 A.2d 500, 501

(D.C. 1973) (lack of award for pain and suffering held to be permissible where minor plaintiff sustained a ―sub-concussion‖ of the head and laceration of the right eyebrow, requiring sutures, but where there was no permanent injury).

5.

Punitive Damages : Punitive damages are recoverable only when the plaintiff can ―prove, by a preponderance of the evidence, that the defendant committed a tortious act, and by clear and convincing evidence that the act was accompanied by conduct and a state of mind evincing malice or its equivalent.‖ Jonathan Woodner Co. v. Breeden ,

665 A.2d 929, 938 (D.C. 1995).

6.

Loss of Services : Loss of services is not recoverable. Parker v.

Martin , 905 A.2d 756, 764 (D.C. 2006) (loss of services of a minor child are not recoverable in any cause of action)

7.

There is no cap on noneconomic awards in the District of Columbia.

See Long v. Sears Roebuck & Co.

, 877 F. Supp. 8, 11 (D.D.C. 1995)

(―There is no difference between the law of negligence and strict liability in Maryland and in the District of Columbia , except for a cap that Maryland law places on ‗noneconomic‘ damages; such damages include pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury.‖)


The Standardized Civil Jury Instructions for the District of

Columbia provides several model jury instructions for personal injury actions. Although they are not tailored specifically for personal injury actions involving a minor, they do cover all the relevant damages and discuss a parent‘s right to recover damages for money spent on caring for an injured child. a. Section 13.01

. Standardized Civil Jury Instructions for the

District of Columbia :

If you find in favor of [the plaintiff], then you should consider whether [he] [she] is entitled to any damages. You may award damages for any of the following items that you find the defendant's [negligence] proximately caused:

1. the extent and duration of any physical injuries sustained by the plaintiff;

2. the effects that any physical injuries have on the overall physical and emotional well-being of the plaintiff;

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3. any physical pain and emotional distress that the plaintiff has suffered in the past;

4. any physical pain and emotional distress that the plaintiff may suffer in the future;

5. any disfigurement or deformity suffered by the plaintiff, as well as any humiliation or embarrassment associated with the disfigurement or deformity;

6. any inconvenience the plaintiff has experienced;

7. any inconvenience the plaintiff may experience in the future;

8. any medical expenses incurred by the plaintiff;

9. any medical expenses that the plaintiff may incur in the future;

10. any loss of earnings incurred by the plaintiff;

11. any loss of earnings or earning capacity that the plaintiff may incur in the future; and

12. any damage or loss to plaintiff's personal property.

Any damages you might award for physical injury or physical sickness may not be taxable. Any damages that you might award for emotional distress and for all other types of harm may be taxable. b. Section 13.03



If you determine that [the plaintiff] is entitled to a damage award for medical expenses incurred, then you should consider the reasonable value of all medical services given to the plaintiff.

These medical services can include examinations, tests, and care by physicians and surgeons, services of nurses and attendants, hospital accommodations and care, ambulance services, medications, and any other services which were actually given and reasonably required for [the plaintiff's] treatment. c. Section 13.05.

Standardized Civil Jury Instructions for the


You may award [the plaintiff] an amount that will reasonably and adequately compensate [him] [her] for any loss of earnings which

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[he] [she] is reasonably certain to suffer in the future. In determining this amount, you are allowed to consider several factors:

(1) [the plaintiff's] age, sex, health, physical and/or mental ability and earning capacity before the injury;

(2) [the plaintiff's] likely future earnings for the remaining working life, if the injury had not occurred, reduced to present value;

(3) [the plaintiff's] decreased earning capacity as a result of the injury;

(4) [the plaintiff's] likely future earnings for the remaining working life, taking into account the injury and how long it may affect both earnings and working life, reduced to present value; and

(5) the effects of inflation when estimating [the plaintiff's] future earnings. d. Emotional Distress, Section 13.09

. Standardized Civil

Jury Instructions for the District of Columbia :

[The plaintiff] is seeking damages for emotional distress. You may award damages for emotional distress if:

(1) the defendant's negligence caused a physical injury to the plaintiff, or

(2) the plaintiff was in the zone of danger and the defendant's negligence caused the plaintiff to fear for [his]

[her] own safety, or

(3) the defendant's negligence endangered the plaintiff.

If the plaintiff suffered no physical injury, then you may award the plaintiff damages for emotional distress only if the emotional distress is serious and verifiable. e. Parent’s Past and Future Damages, Section 13.11

.

Standardized Civil Jury Instructions for the District of

Columbia :

If a minor child was injured through the defendant's negligence and the child is entitled to receive damages from the defendant, then the child's parents also are entitled to receive damages for

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their past and future expenses in connection with the child's injuries until the child reaches legal age.

Thus, the child's parents are entitled to receive damages to cover their hospital and other medical expenses, as well as other incidental expenses involved in caring for the child's injuries.

Who ―owns‖ the right to sue for medical expenses? Parent or child? If parent, does not end at the age of majority when it becomes child’s claim?

Under D.C. law, an injured minor ―owns‖ the right to sue for medical expenses; see, e.g.

, D.C. Code § 13-302 (three-year statute of limitations for personal injury actions stayed until injured minor reaches the age of 18).

However, there does not appear to be either a specific case or ordinance that addresses this issue. As noted in the model jury instructions, however, parents may receive damages for their past and future expenses in connection with their child‘s injuries, until the child reaches legal age, as part of the child‘s personal injury action. This suggests that the child owns the right to sue but parents may still recover the expenses they incur as a result of the child‘s injuries. The D.C.

Court of Appeals has also suggested that a parent has an independent cause of action for medical expenses and loss of an injured child‘s earnings.

See National

City Development Co. v. McFerran

, 55 A.2d 342, 343 (D.C. 1947) (―‗[A] parent who seeks as guardian ad litem of his minor child to recover for loss of time or earnings of the minor, or for medical services incurred on behalf of the latter, is variously held to have waived or relinquished to the minor his rights in this respect, or to have emancipated the minor, or to have estopped himself from thereafter recovering for these items in a suit in his own name. In the numerous cases so holding, recovery on these accounts has generally been permitted in the suit brought on behalf of the minor.‘‖).


The purpose of the District of Columbia‘s Wrongful Death Act is to

―provide a remedy whereby close relatives of the deceased, who might naturally have expected maintenance or assistance from the deceased had he lived, may recover compensation from the wrongdoer commensurate with the loss sustained.‖

Cole, Raywid & Braverman v. Quadrangle Development Corp.

, 444

A.2d 969, 971 n.7 (D.C. 1982).


1.

Loss of Financial Support : Loss of financial support is recoverable. See District of Columbia v. Hawkins , 782 A.2d 293,

303 (D.C. 2001); District of Columbia , 808 A.2d 776, 778, 778 n.2

(D.C. 2002) (decedent‘s mother elected to forgo allowable pecuniary losses, except damages for funeral and burial expenses).

After determining the amount of a decedent‘s likely future

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earnings and contributions to support the parents, the award is reduced by the costs the decedent‘s parents would have expended in raising the decedent to eighteen years of age. See Standardized

Civil Jury Instructions for the District of Columbia § 14.05;

Rankin v. Shayne Brothers, Inc.

, 234 F.2d 35, 36 (D.C. Cir. 1956)

(noting that the trial judge correctly instructed the jury that, in event defendant was liable, the plaintiff was ―entitled to recover the value of the child‘s services during the child‘s minority, that is, until the child reaches 21 years of age, had the child lived, and such further sum as a parent might properly have received from the deceased if the deceased had lived, less the cost that would have been incurred in bringing up the child‖).

2.

Medical and Burial expenses

: The District of Columbia‘s

Wrongful Death Act provides that a plaintiff may recover for medical and burial expenses. See D.C. Code § 16-2701


1.

Punitive Damages : Punitive damages are recoverable in some instances. See District of Columbia v. Jackson , 810 A.2d 388, 396-97

(D.C. 2002) (punitive damages not permitted because no reasonable juror could have found by the more stringent proof requirement of clear and convincing evidence that police officers shot decedent with an evil motive or actual malice); Grossman v. United States , 1990 U.S.

Dist. LEXIS 20932, at * 42 (D.D.C. Nov. 2, 1990) (plaintiff‘s decedent was denied punitive damages under the District of Columbia

Wrongful Death Act because punitive damages are not available under the Federal Tort Claims Act as decedent committed suicide on the grounds of defendant‘s federal veterans administration medical center due to the staff's negligence in failing to properly diagnose, monitor and treat plaintiff‘s decedent for depression).

2.

Pain and Suffering : Pain and suffering experienced by the decedent are recoverable. See Doe v. Binker , 492 A.2d 857, 861 (D.C. 1985).

3.

Loss of Parent-Child Consortium : Loss of parent-child consortium is not recoverable. District of Columbia v. Howell , 607 A.2d 501, 506

(D.C. 1992); Parker v. Martin , 905 A.2d 756, 764 (D.C. 2006) (loss of services of a minor child are not recoverable in any cause of action).

4.

Mental Suffering, Grief and Anguish : Mental suffering, grief and anguish are not recoverable under the Wrongful Death Act. See

Saunders v. Air Florida, Inc.

, 558 F. Supp. 1233, 1235 (D.D.C. 1983)

(applying D.C. law).

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Section 14.05



The amount to be awarded under the Wrongful Death Act is the financial loss suffered by the . . . next of kin of [the deceased] who are the beneficiaries under this Act. . . . The next of kin of the deceased are [names].

The Wrongful Death Act does not permit you to, and you must not, award the beneficiaries any amount for the sorrow, mental distress or grief, or for the loss of love and affection that they may have suffered because of [the deceased's] death.

The amount you do award to the beneficiaries should be more than mere nominal damages. In deciding upon any damages which will reasonably and adequately compensate the beneficiaries for the death of [the deceased], you should first consider the financial loss each beneficiary has suffered. Consider the financial support [the deceased] furnished or could have been expected to provide to each beneficiary. Consider, also, any gifts and other contributions which [the deceased] could have reasonably been expected to provide to each beneficiary had [the deceased] not died. In determining the amount each of the beneficiaries could have been expected to receive, you may consider the earnings and earning capacity of [the deceased] and the probable joint life expectancy of

[the deceased] with each of the beneficiaries. Joint life expectancy means the time during which [the deceased] and each of the beneficiaries would both have been alive. You may also consider the age, health, occupation, station of life of the parties and any other fact which may guide you.

You should also set a dollar amount on the reasonable value of any services that the deceased would have provided to each beneficiary over their joint life expectancies.

In this case, [the minor deceased] died while a minor, that is, before reaching age 18. The earnings of a minor during [his] [her] minority belong to [his] [her] parents. You must, therefore, consider any amounts [the minor deceased] might have reasonably been expected to earn during [his] [her] minority. You must also consider the possibility that [he] [she] might have made contributions toward the support of [his] [her] parents and next of kin even after [he] [she] turned 18 years old.

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After you have decided the amounts of [the decedent's] likely future earnings and contributions to support the parents, you must then subtract the costs that [his] [her] parents [or guardians] would have expended in raising [him] [her] to age 18.

With regard to all of these losses, you must consider the effect of inflation on living expenses and wage earnings.

The amount that you calculate as the net financial loss must then be discounted to present cash value. This means that you must determine a lump sum payment which could compensate each beneficiary for his or her future financial losses suffered as a result of [the deceased]'s death.

Here is how you make that calculation. For each beneficiary, you must figure the amount, which if invested at a particular rate of interest today over the number of years [the decedent] would have been expected to live, would return an amount equal to the net financial loss to that beneficiary.

To any lump sum payment for a beneficiary, you should also add the actual amounts which that beneficiary paid towards the expenses of the decedent's last illness. These expenses would include any medical, nursing and hospital bills and funeral expenses, and any other expenses of [the deceased].

Any award you make under the Wrongful Death Act should be apportioned among each of the beneficiaries; that is, your verdict should state the amount each beneficiary is to receive.

351

WEST VIRGINIA

Carol P. Smith

Frost Brown Todd LLC

Charleston, West Virginia

304-345-0111


Personal injury to a minor child gives rise to two causes of action: 1) an action on behalf of the child for pain and suffering, permanent injury, and impairment of earning capacity after majority; and 2) an action by the parent for consequential damages including the loss of services and earnings during minority and expenses incurred for necessary medical treatment for the child's injuries.

State ex rel. Packard v. Perry , 221 W.Va. 526, 655 S.E.2d, 548, 556 (2007).

I. Damages

1.

Past Damages . Past compensatory damages, including reasonable and necessary medical bills, lost wages, pain and suffering, mental anguish, loss of household services and others are recoverable when proven by a preponderance of evidence. See generally, State ex rel.

Packard v. Perry , 221 W.Va. 526, 655 S.E.2d, 548 (2007); Jordan v.

Bero , 158 W.Va. 28, 210 S.E.2d 618 (1974).

2.

Future Damages . Future damages are awarded ―for, among other things: 1) residuals or future effects of an injury which have reduced the capacity of an individual to function as a whole man; 2) future pain and suffering; 3) loss or impairment of earning capacity; and, 4) future medical expenses.‖ Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618

(1974). A child who has never been gainfully employed may recover damages for impairment of future earning capacity if such damages are

"proved to a reasonable degree of certainty." Id.

3.

Loss of filial consortium . While West Virginia law allows a parent of a minor child the opportunity to recover economic losses arising out of a child's injuries, West Virginia courts have not yet addressed whether a parent can recover non-economic consortium losses for a child's injuries. See, Losh v. Teton Transp., Inc.

, Slip Opinion, 2010 WL

5343216 (S.D.W.Va. 2010).

4.

Punitive Damages . In actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear…, the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous. Crawford v. Snyder , --S.E.2d---, 2011 WL

352

5842814 (W.Va. 2011), citing Mayer v. Frobe , 40 W.Va. 246, 22 S.E.

58 (1895).

5. Interest.

An award of prejudgment interest on special or liquidated damages is mandated by statute. W.Va. Code 56-6-31. Special damages include lost wages and income, medical expenses, damages to tangible personal property and similar out-of-pocket expenditures, as determined by the court. Id .

II.

Model Jury Instruction for West Virginia

West Virginia does not have model jury instructions. As of this writing

(02/12), Chief Justice Menis Ketchum is working on proposed model jury instructions.

Who "owns" the right to sue for medical expenses? Parent or child? If parent, does that end at the age of majority when it becomes child's claim?

Both. "The right to maintain an action to recover pre-majority medical expenses incurred as a result of a minor's personal injuries belongs to both the minor and the minor's parents, but under no circumstances will double recovery be allowed." State ex rel. Packard v. Perry , 221 W.Va. 526, 655 S.E.2d 548

(2007).


The right to maintain an action for Wrongful Death is provided by W.Va.

Code 55-7-5. The Legislature has enlarged the damages recoverable under W.Va.

Code 55-7-6 to permit juries to award damages that the deceased might have recovered had he or she survived the inquiry and brought the action, in addition to the damages resulting from the wrongful death. McDavid v. U.S.

, 213 W.Va.592,

584 S.E.2d 226 (2003).

I. Damages

1.

Statutory Damages.

The verdict of the jury shall include, but may not be limited to, damages for the following:

(A) Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;

(B) compensation for reasonably expected loss of (i) income of the decedent, and (ii) services, protection, care and assistance provided by the decedent;

(C) expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death; and

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(D) reasonable funeral expenses.

W.Va. Code 55-7-6( c)(1).

A jury's verdict may include damages for the decedent's pain and suffering endured between the time of injury and the time of death where evidence of conscious pain and suffering of the decedent prior to death is shown. W.Va. Code 55-7-8; McDavid v. U.S.

, 213

W.Va.592, 584 S.E.2d 226 (2003).

2.


In the appropriate case, punitive damages are recoverable in actions for wrongful death. Bond v. City of Huntington,

166 W.Va. 581, 276 S.E.2d 539 (1981).

3.

Unborn Child.

An action may be maintained by the personal representative of a viable unborn child for the wrongful death of such child caused by injuries sustained by it while in the womb of its mother resulting from the negligence of the defendant and, upon sufficient proof, such damages as may be recoverable under the statute may be awarded in such action. Baldwin v. Butcher , 155 W.Va. 431,

184 S.E.2d 428 (1971).

II. Model Jury Instructions:

West Virginia does not have model jury instructions. As of this writing

(02/12), Chief Justice Menis Ketchum is working on proposed model jury instructions.

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WISCONSIN

John S. Monical



(312) 372-1947

Damages Recoverable in a Minor’s Personal Injury

I . Economic Damages:

1.

Medical Expenses . Parent may recover hospital, medical, and dental expenses incurred or that will continue to be incurred in the future for the care and treatment of the minor. WIS JI-CIVIL 1840.

2.

Child’s Lost Services and Earnings.

The parent may recover for the injured minor‘s earnings and the reasonable value of the services which the minor child was capable of rendering to the parent until the child reaches the age of 18. WIS JI-CIVIL 1835.

3.

Caretaking Expenses. The reasonable cost of additional home and personal nursing care and services rendered and to be rendered in the future to a minor because of the injuries sustained is recoverable. WIS

JI-CIVIL 1845.

4.

Loss of past and future earning capacity . If the minor has incurred lost future earnings capacity, including lost earnings caused by delay in graduating from school, the jury can award reasonable compensation for loss of earning capacity. WIS JI-CIVIL 1750.2,

1760; See Michaels v. Green Giant Co.

, 164 N.W.2d 217 (Wis. 1969);

Webster v. Krembs , 282 N.W. 564 (Wis. 1938).


1.

Disability and/or disfigurement. This includes any physical pain, worry, distress, embarrassment, and humiliation that the minor child suffered in the past and is reasonably certain to suffer in the future.

WIS JI-CIVIL 1750.2; Noll v. Rural Mut. Ins. Co ., 516 N.W.2d 21

(Wis. Ct. App. 1994).

2.


Pain and suffering, suffered in the past and reasonably certain to be suffered in the future as a result of the injury are fully recoverable. WIS JI-CIVIL 1750.2; Coryell v. Conn , 276

N.W.2d 723 (Wis. 1979); Hargrove v. Peterson , 221 N.W.2d 875

(Wis. 1974). Factors considered include the nature of the injury, the effect produced by the injury in the past and expected effect in the future, and the plaintiff‘s age, prior mental and physical conditions,

355

and the probable duration of the minor‘s life. WIS JI-Civil 1750.2;

Lutz v. Shelby Mut. Ins. Co.

, 235 N.W.2d 426 (Wis. 1975); Dolittle v.

Western States Mut. Ins. Co.

, 128 N.W.2d 403 (Wis. 1964). In determining an award for pain and suffering, a jury may consider the impairment to plaintiff‘s ability to enjoy the ―normal activities, pleasures, and benefits of life‖. WIS JI-CIVIL 1750.2.

3.

Severe Emotional Distress . If the minor suffers severe emotional distress as a result of the incident and the incident was a substantial factor in producing the emotional distress, damages for severe emotional distress may be recoverable. WIS JI-CIVIL 1770.

4.

Punitive Damages . Punitive damages may be recoverable in an appropriate case under either negligence or strict product liability.

WIS JI-CIVIL 1707.1, 1707.2; see Wangen v. Ford Motor Co.

, 294

N.W.2d 437 (Wis. 1980). Factors to consider when awarding punitive damages include the grievousness of the act, the degree of malicious intention of the defendant or the recklessness of the defendant‘s conduct, the potential and actual damages of the act, and the defendant‘s ability to pay such damages. WIS JI-CIVIL 1707.1; see

Strenke v. Hogner , 694 N.W.2d 296 (Wis. 2005); Sharp v. Case Corp.

,

595 N.W.2d 380 (Wis. 1999).

III. Model Jury Instructions: a. Injury To Minor Child: Parents' Damages For Medical

Expenses: Past And Future 1840 WIS JI-CIVIL

Subdivision __ of question _ asks what sums will reasonably compensate

(plaintiff) for hospital, medical, and dental expenses incurred for the care and treatment of (his) (her) minor (son) (daughter).

Under the law, parents are liable for the reasonable expenses necessarily incurred in the care and treatment of their minor children.

You will carefully consider the credible evidence, and reasonable inferences therefrom, bearing on this inquiry and in answer name such sum as will fairly and reasonably compensate (plaintiff) for such hospital, medical, and dental expenses as (he) (she) necessarily incurred for the care of (minor child) in the treatment of the injuries sustained by (minor child) as a natural and direct result of this (collision) (accident). If you find that such expenses will continue to be incurred in the future by (plaintiff), you should allow, and include in your award, an amount which will fairly and reasonably compensate (plaintiff) for such medical, hospital, and dental expenses as (plaintiff) will necessarily incur for the care of (minor child) in the treatment of the injuries sustained by (him) (her) as a natural result

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of the (collision) (accident), during the period of (his) (her) minority, up to th but not beyond the time (he) (she) will have reached (his) (her) 18 birthday. b. Injury To Child: Parents' Damages For Services Rendered To

Child: Past And Future 1845 WIS JI-CIVIL

Subdivision _ of question _ asks what sum will reasonably compensate

(name) for additional home and personal nursing care and services rendered to (his) (her) minor (son) (daughter) because of the injuries sustained in this (collision) (accident).

You will carefully consider the credible evidence, and reasonable inferences therefrom, bearing on this inquiry and in answer name such sum as will fairly and reasonably compensate (_____) for such additional home and nursing care and services as the parents necessarily furnished and rendered to their minor (son) (daughter) in the care and treatment of the injuries sustained by (him) (her) as a natural result of this (collision)

(accident).

The amount you will allow for such services, however, will not exceed an amount (_____) would have been compelled to pay others to render such or similar services.

If you find that such nursing care and services will continue to be incurred in the future, you may allow, and include in your award, an amount which will fairly and reasonably compensate (________) for such home nursing care and services as the parents will necessarily render and furnish to their minor (son) (daughter) in the care and treatment of the injuries sustained by (him) (her) as a natural result of this (collision) (accident), during the period of (his) (her) minority, up to but not beyond the time (he) (she) will have reached (his) (her) 18th birthday. Such sum shall not exceed the amount (____) would be compelled to pay others to render such or similar services. c. Injury To Minor Child: Parent's Damages For Loss Of Child's

Earnings And Services: Past And Future 1835 WIS JI-CIVIL

Question __ asks you to determine [(parent)s'] [(parent)'s] loss of (child)'s services resulting from the injuries sustained by (child). The (parents)

(parent) of an injured minor child (are) (is) entitled to the earnings and to the reasonable value of the services which the minor child was capable of rendering to the (parents) (parent) until the child reaches the age of 18.

You should award such sum as will reasonably compensate (parents)

(parent) for any loss of income as you are satisfied (minor child) was

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reasonably capable of earning and for the loss of the reasonable value of the services to which (parents) (parent) were entitled during the period of

(minor child)'s disability, to date, resulting from injuries received in (the accident).

If you find that (minor child)'s disability will continue in the future as a natural result of the injuries sustained in (this accident), you should allow

(parents) (parent), and include in your award, an amount which will fairly and reasonably compensate (them) (him) (her) for any loss of income

(minor child) would have been reasonably capable of earning and for the reasonable value of the services which (minor child) would have rendered to (parents) (parent), except for the disability, until (minor child)'s 18th birthday.

While the plaintiff has the burden of establishing loss of future earning capacity, the evidence relating to this item need not be as exact or precise as evidence needed to support your findings as to other items of damage.

The reason for this rule is that the concept of (loss of future earning capacity) requires that you consider factors which, by their very nature, do not admit of any precise or fixed rule. You therefore, are not required in determining the loss of future earning capacity to base your answer on evidence which is exact or precise but rather upon evidence which, under all of the circumstances of the case, reasonably supports your determination of damages. d. Injury To Minor Child: Parent's Loss Of Society And

Companionship 1837 WIS JI-CIVIL

Question __ asks you to determine (the parent)'s loss of society and companionship resulting from injuries sustained by (child).

Society and companionship includes the love, affection, care, and protection the parent would have received from (his) (her) child had the child not been injured. It does not include the loss of monetary support from the child or the grief or mental suffering caused by the child's injury.

In determining (parent)'s loss of society and companionship, you should consider the age of the (child) and the age of the parent; the past relationship between the child and the parent; the love, affection, and conduct of each toward the other; the society and companionship that had been given to the parent by the child; and the personality, disposition, and character of the child and the parent.

The amount inserted by you should reasonably compensate the parent for any loss of society and companionship (he) (she) has sustained since the

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injury to (his) (her) child and the amount you are reasonably certain (he)

(she) will sustain in the future.

If you find that (minor child)'s disability (injuries) will continue in the future as a natural result of the injury and that (parent) will sustain a loss of the child's society and companionship in the future, you should include in your award the sum that will fairly and reasonably compensate (parent) for this future loss but only until the injured child reaches (his) (her) 18th birthday. e. Personal Injuries: Future Medical And Health Care Expenses

1758 WIS JI-CIVIL

(Question ______ ) (Subdivision __ of question _____ ) asks what sum of money will fairly and reasonably compensate (plaintiff) for future medical and other health care related expenses.

If you are satisfied that (plaintiff) will require health care or treatment in the future for injuries sustained as a result of the accident, you will insert as your answer to this question the sum of money you find will reasonably and necessarily be expended in the future for that care or treatment. f. Personal Injuries: Future Loss Of Earning Capacity 1762 WIS JI-

CIVIL

(Question _) (Subdivision ___ of question___) asks what sum of money will fairly and reasonably compensate (plaintiff) for future loss of earning capacity.

If you are satisfied that (plaintiff) has suffered a loss of future earning capacity as a result of the injuries sustained in the accident, your answer to this question will be the difference between what (plaintiff) will reasonably be able to earn in the future in view of the injuries sustained and what (he) (she) would have been able to earn had (he) (she) not been injured.

While the plaintiff has the burden of establishing loss of future earning capacity, the evidence relating to this item need not be as exact or precise as evidence needed to support your findings as to other items of damage.

The reason for this rule is that the concept of (loss of future earning capacity) requires that you consider factors which, by their very nature, do not admit of any precise or fixed rule. You, therefore, are not required in determining the loss of future earning capacity to base your answer on evidence which is exact or precise but rather upon evidence which, under all of the circumstances of the case, reasonably supports your determination of damages.

359

g. Personal Injuries: Past And Future Pain, Suffering, And Disability

(Disfigurement) 1768 WIS JI-CIVIL

(Question __) (Subdivision __ of question __ ) asks what sum of money will fairly and reasonably compensate (plaintiff) for any pain, suffering,

(and) disability, (and disfigurement) (he) (she) sustained as a result of the accident.

Your answer to this question should be the amount of money that will fairly and reasonably compensate (plaintiff) for the pain, suffering, (and) disability, (and disfigurement) (he) (she) has suffered to date and is reasonably certain to suffer in the future as a result of the accident.

Pain, suffering, (and) disability, (and disfigurement) includes any physical pain, worry, distress, embarrassment, and humiliation which (plaintiff) has suffered in the past and is reasonably certain to suffer in the future.

You should also consider to what extent (his) (her) injuries have impaired and will impair (his) (her) ability to enjoy the normal activities, pleasures, and benefits of life.

Finally, consider the nature of (plaintiff)'s injuries, the effect produced by

(plaintiff)'s injuries in the past, and the effect the injuries are reasonably certain to produce in the future bearing in mind (plaintiff)'s age, prior mental and physical condition, and the probable duration of (his) (her) life. h. Personal Injuries: Severe Emotional Distress 1770 WIS JI-CIVIL

(Plaintiff) claims that (he) (she) suffered severe emotional distress (in addition to the physical injuries (he) (she) sustained) as a result of the

(accident) (incident) in question.

If you are satisfied that (plaintiff) suffered severe emotional distress and that the (accident) (incident) was a substantial factor in producing it, you should include in your award a fair and reasonable allowance for the severe emotional distress. If you are not satisfied, make no allowance for the severe emotional distress and confine your award to fair and reasonable compensation only for any other damages (resulting from personal injuries) to (plaintiff) which was caused by the (accident)

(incident). i. Punitive Damages: Nonproducts 1707.1 WIS JI-CIVIL

Punitive damages may be awarded, in addition to compensatory damages, if you find that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.

A person's acts are

360

malicious when they are the result of hatred, ill will, desire for revenge, or inflicted under circumstances where insult or injury is intended.

A person acts in an intentional disregard of the rights of the plaintiff if the person acts with the purpose to disregard the plaintiff's rights, or is aware that his or her acts are substantially certain to result in the plaintiff's rights being disregarded. Before you can find an intentional disregard of the rights of the plaintiff, you must be satisfied that the defendant's act or course of conduct was:

(1) deliberate;

(2) an actual disregard of the plaintiff's right to safety, health, or life, a property right, or some other right; and

(3) sufficiently aggravated to warrant punishment by punitive damages.

A defendant's conduct giving rise to punitive damages need not be directed at the plaintiff seeking punitive damages. There is no requirement that (defendant) intended to cause harm or injury to (plaintiff). The purpose of punitive damages is to punish a wrongdoer or deter the wrongdoer and others from engaging in similar conduct in the future.

Punitive damages are not awarded to compensate the plaintiff for any loss he or she has sustained. A plaintiff is not entitled to punitive damages as a matter of right. Even if you find that the defendant acted maliciously.

If you answered the preceding question "yes," answer this question:

What sum, if any, do you award against (defendant) as punitive damages?

Answer: $ _____ j. Punitive Damages: Products Liability 1707.2 WIS JI-CIVIL

Punitive damages may be awarded, in addition to compensatory damages, if you find that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff. A person's acts are malicious when they are the result of hatred, ill will, desire for revenge, or inflicted under circumstances where insult or injury is intended. A person acts in an intentional disregard of the rights of the plaintiff if the person acts with the purpose to disregard the plaintiff's rights, or is aware that his or her acts are substantially certain to result in the plaintiff's rights being disregarded. Before you can find an intentional disregard of the rights of the plaintiff, you must be satisfied that the defendant's act or course of conduct was:

(1) deliberate;

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(2) an actual disregard of the plaintiff's right to safety, health, or life, a property right, or some other right; and

(3) sufficiently aggravated to warrant punishment by punitive damages.

A defendant's conduct giving rise to punitive damages need not be directed at the plaintiff seeking punitive damages. There is no requirement that the defendant intended to cause harm or injury to the plaintiff.

The purpose of punitive damages is to punish a wrongdoer or deter the wrongdoer and others from engaging in similar conduct in the future.

Punitive damages are not awarded to compensate the plaintiff for any loss he or she has sustained. A plaintiff is not entitled to punitive damages as a matter of right. Even if you find that the defendant acted maliciously or in an intentional disregard of the plaintiffs rights, you do not have to award punitive damages. Punitive damages may be awarded or withheld at your discretion. You may not, however, award punitive damages unless you have awarded compensatory damages. If you determine that punitive damages should be awarded, you may then award such sum as will accomplish the purpose of punishing or deterring wrongful conduct.

Factors you should consider in answering question __ include:

1. the seriousness of the hazard to the public;

2. the profitability of the misconduct;

3. the attitude and conduct on discovery of the misconduct;

4. the degree of the manufacturer's awareness of the hazard and of its excessiveness;

5. the employees involved in causing or concealing the misconduct;

6. the duration of both the improper behavior and its concealment;

7. the financial condition of the manufacturer and the probable effect on the manufacturer of a particular judgment; and

8. the total punishment the manufacturer will probably receive from other sources.

SPECIAL VERDICT

362

If you answered "yes" to question _, answer this question:

Did (defendant) act maliciously toward (plaintiff) or in an intentional disregard of the rights of (plaintiff)?

Answer: ------

Yes or No k. Personal Injuries: Past And Future: One Verdict Question

(Except Past Loss Of Earnings And Past Medical Expenses) 1750.2

WIS JI-CIVIL

Question __ asks what sum of money will fairly and reasonably compensate (plaintiff) for any personal injuries (he) (she) sustained as a result of the accident. Your answer to this question should be the amount of money that will fairly and reasonably compensate (plaintiff) for the personal injuries (he) (she) has suffered to date and is reasonably certain to suffer in the future as a result of the accident.

Personal injuries include pain, suffering, and disability (disfigurement) which means any physical pain, worry, distress, embarrassment and humiliation which (plaintiff) has suffered in the past and is reasonably certain to suffer in the future. You should consider also to what extent

(his) (her) injuries have impaired and will impair (his) (her) ability to enjoy the normal activities, pleasures, and benefits of life. Consider the nature of (plaintiff)'s injuries, the effect produced by (plaintiff)'s injuries in the past, and the effect the injuries are reasonably certain to produce in the future, bearing in mind (plaintiff)'s age, prior mental and physical condition, and the probable duration of (his) (her) life.

Personal injuries can also include any loss of future earning capacity suffered by (plaintiff). If you are satisfied that (plaintiff) has suffered a loss of future earning capacity as a result of the injuries sustained in the accident, your answer to this question should include the difference between what (plaintiff) will reasonably be able to earn in the future in view of the injuries sustained and what (he) (she) would have been able to earn had (he) (she) not been injured.

Personal injuries can also include health care and treatment expenses. If you are satisfied that (plaintiff) will require health care and treatment in the future for injuries sustained as a result of the accident, include in your answer to this question the sum of money that will reasonably and necessarily be expended in the future for that care and treatment.

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Wisconsin recognizes two separate causes of action when a minor is injured – the minor‘s and the minor‘s parents. The minor‘s cause of action is for physical and personal injuries, whereas the parents‘ cause of action is for the invasion of the parents‘ interests, including (1) past, present, and future medical expenses, including home and personal nursing care and services; (2) loss of child‘s society and companionship; (3) pecuniary support; (4) punitive damages; and (5) loss of child‘s earnings and services (past and future) that the child was capable of rendering to the parent(s) until the child reaches the age of 18. Wis.

Stat. § 895.03; Webster v. Krembs , 282 N.W. 564 (Wis. 1938); Wangen v. Ford

Motor Co.

, 294 N.W.2d 437 (Wis. 1980); Korth v. American Family Inc. Co.

, 340

N.W.2d 494 (Wis. 1983);

Herman v. Milwaukee Children’s Hosp.

, 361 N.W.2d

297 (Wis. Ct. App. 1984); WIS JI-CIVIL 1707.1. Under the law, parents are liable for the reasonable expenses necessarily incurred in the care and treatment of their minor children. Therefore, in addition to the minor‘s right to sue for medical and hospital expenses in the minor‘s personal injury suit, the parent also can sue for the costs of the minor child‘s treatment of the injuries as the result of the accident during the period of the child‘s minority, up to but not beyond the time the child reaches majority (18 years of age). West v. Day , 212 N.W. 648 (1927);

WIS JI-CIVIL 1840.


Awards of pecuniary losses are recoverable by any person entitled to bring an action for wrongful death. Wis. Stat. § 895.04(4). However, Section 895.03 of the Wisconsin Statutes limits the bringing of actions to cases in which, if death had not ensued, the injured person would have been entitled to maintain an action.

Wis. Stat. § 895.03; See Tesar v. Anderson , 789 N.W.2d 351 (Wis. Ct. App. 2010)

(a viable fetus is a ―person‖ for the purpose of the wrongful death statute and the fetus‘ parents thus may bring a wrongful death action against automobile driver whose negligence cause a viable fetus to be stillborn).


1.

Pecuniary Losses. Pecuniary loss, recoverable in wrongful death actions by statute, is defined as ―financial loss‖. Wis. Stat. § § 895.03,

895.04.

2.

Medical, Funeral, and Cemetery Lot Expenses . Medical, funeral, and the reasonable cost of a cemetery lot are recoverable. Wis. Stat. §

895.04(5); See Gustafson v. Bertschinger , 108 N.W.2d 273 (Wis.

1961).

364

3.

Lost Wages and Services . Parents can claim the loss of wages and services they would have received from the child during the child‘s minority had the child lived. This loss is measured by the value of the wrongfully killed minor child‘s probable wages and services to the time of majority less the costs the parents probably would have incurred in raising the child to age 18. Prunty v. Schwantes , 162

N.W.2d 34 (Wis. 1968). The fact that a child would or would not have turned over his wages to the parents or would or would not have performed the services is irrelevant for recovery. Peot v. Ferraro , 266

N.W.2d 586 (Wis. 1978).

See also WIS JI-CIVIL 1890.


1.

Loss of Society and Companionship . If the decedent is a minor, an award for loss of society and companionship may be awarded to parents or siblings of the deceased, but this amount cannot exceed

$500,000 per occurrence. Wis. Stat. § 895.04(4); See Peiot v. Ferraro ,

266 N.W.2d 586 (Wis. 1978) (limitation on recovery for loss of society and companionship is not a measure of damages; it is a limit on recovery). Loss of society and companionship includes the love, affection, care, protection, and guidance WIS JI-CIVIL 1895; See

Cameron v. Union Auto Ins. Co.

, 246 N.W.420, 423 (Wis. 1933);

Berghauer v. Heyl (In re Estate of Berghauer) , 2001 Wis. App. LEXIS

1156 (Wis. Ct. App. 2001).

2.

Mental Pain and Suffering . Grief or injury to feeling of the parent is not recoverable under a wrongful death suit. Similarly, the suffering experienced by the minor child before death is not recoverable under a wrongful death suit, only under a survivorship claim. Klann v. Minn ,

154 N.W. 966 (Wis. 1915) (decedent‘s estate is entitled to recovery for the conscious pain and suffering experienced by the deceased from the time of the injury up until the time of death).

3.


Punitive damages are not recoverable under the

Wisconsin Wrongful Death Statute, Wis. Stat. § 895.04, but are recoverable in a survival action. Wis. Stat. § 895.01 see Wangen v.

Ford Motor Co.

, 294 N.W.2d 437 (Wis. 1980).

III. Model Jury Instructions: a. Damages: Death Of Minor Child: Premajority Pecuniary Loss

1890 WIS JI-CIVIL

(Plaintiffs), as parents of (child), claim loss of wages and services they would have received from (child) during (child)'s minority had (he) (she) continued to live. Although parents are responsible for the cost of

365

providing for the care and maintenance of their child until the child reaches age 18, they are entitled to the value of the wages and services that their child was reasonably capable of (earning) (providing to the parents) until (he) (she) reached age 18. If you find that the value of these wages or services would have exceeded the costs (parents) would have incurred in raising (child) to age 18, you should insert the difference in answer to question _.

While the plaintiff has the burden of establishing pecuniary loss, the evidence relating to this item need not be as exact or precise as evidence needed to support your findings as to other items of damage. The reason for this rule is that the concept of pecuniary loss requires that you consider factors which, by their very nature, do not admit of any precise or fixed rule. You, therefore, are not required in determining the pecuniary loss to base your answer on evidence which is exact or precise but rather upon evidence which, under all of the circumstances of the case, reasonably supports your determination of damages. b. Damages: Death Of Minor Child: Postmajority Pecuniary Loss

1892 WIS JI-CIVIL

(Plaintiffs), as parents of (child), claim loss of pecuniary benefits they would have received from (child) after (child) reached age 18 had (he)

(she) continued to live. If you determine that (parents) would have received pecuniary benefits from (child) after (he) (she) reached age 18, you should insert the amount in answer to question _. (Pecuniary benefits means gifts, assistance, and support that can be valued in money.)

In determining whether (parents) would have received pecuniary benefits, you should consider (parent)s' age, health, employment and earnings, and the degree to which they were dependent upon (child). You should also consider the (child)'s age, health, employment, earnings, amounts contributed in the past, if any, and the relationship between (child) and

(parents).

(Give WIS JI-Civil 1796 on computation of present value.)

While the plaintiff has the burden of establishing pecuniary loss, the evidence relating to this item need not be as exact or precise as evidence needed to support your findings as to other items of damage. The reason for this rule is that the concept of pecuniary loss requires that you consider factors which, by their very nature, do not admit of any precise or fixed rule.

You, therefore, are not required in determining the pecuniary loss to base your answer on evidence which is exact or precise but rather upon

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evidence which, under all of the circumstances of the case, reasonably supports your determination of damages. c. Death Of Child: Parent's Loss Of Society And Companionship

1895 WIS JI-CIVIL

Question _ asks you to determine [(the parent)s'] [(parent)'s] loss of society and companionship resulting from the death of (child). Society and companionship includes the love, affection, care, and protection the

(parents) (parent) would have received from (their) (his ) (her) child had

(he) (she) continued to live. It does not include the loss of monetary support from the child or the grief and mental suffering caused by the child‘s death.

In determining [(parent)s'] [(parent)'s] loss of society and companionship, you should consider the age of the deceased child and the ages of the

(parents) (parent); the past relationship between the child and the (parents)

(parent); the love, affection, and conduct of each toward the other; the society and companionship that had been given to the (parents) (parent) by the child; and the personality, disposition, and character of the child. The amount inserted by you should reasonably compensate the (parents)

(parent) for any loss of society and companionship (they) (he) (she) (have)

(has) sustained since the death of (child) and the amount you are reasonably certain (they) (he) (she) will sustain in the future.

Although the law provides that a party cannot recover more than

($350,000) ($500,000) for the loss of a child‘s society and companionship, this dollar limit is not a measure of damage; it is a limit on recovery.

Therefore, you should determine the amount that you believe will reasonably compensate (parents) (parent) for any loss of society and companionship (they) (he) (she) (have) (has) suffered.

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WYOMING

John W. Grund

Joan S. Allgaier

Grund • Dagner, P.C.

Denver, Colorado

(303) 830-7770


1.

Property Damages.

Property damages are recoverable.

2.


Medical expenses incurred on behalf of the minor are recoverable and may be recovered by the parents. See Little v.

Kobos , 877 P.2d 752 (Wyo. 1994); Thunder Hawk v. Union P.R.R.

,

844 P.2d 1045 (Wyo. 1992); Blakeman v. Gopp , 364 P.2d 986 (Wyo.

1961).

3.

Lost Earnings During the Age of Minority. Ordinarily the earnings of minor children belong to the parents. Kreigh v. Cogswell , 21 P.2d

831 (Wyo. 1933).

4.

Lost Future Earnings.

Any earnings reasonably certain to be lost in the future are recoverable. Little v. Kobos , 877 P.2d 752 (Wyo. 1994)

(evidence in medical-malpractice action supported instruction for lost future earnings to child, where vocational-rehabilitation expert testified about child's physical limitations and economist testified about economic consequences of child‘s disability).

5.

Prejudgment Interest.

Wyoming does not generally allow recovery of prejudgment interest except on liquidated sums. See, e.g., Wells

Fargo Bank Wyo., N.A. v. Hodder , 2006 WY 128, 144 P.3d 401 (Wyo.

2006).


1.


Minor plaintiff may recover for the physical and mental pain and suffering experienced as a result of injuries and that are reasonably certain to be experienced in the future. Little v. Kobos ,

877 P.2d 752 (Wyo. 1994). The amount to be assessed for pain and suffering is within the discretion of the trier of fact. Blakeman v.

Gopp , 364 P.2d 986 (Wyo. 1961).

368

2.

Loss of Enjoyment of Life. The award for this specific element should not duplicate the award given for any other element of damages. See Little v. Kobos , 877 P.2d 752 (Wyo. 1994).

3.

No Recovery for Loss of Companionship.

A parent may not recover for the loss of a child‘s companionship. Gates v. Richardson , 719 P.2d

193, 201 (Wyo. 1986).

4.

Scars and Disfigurement. The amount to be assessed for damages suffered by the plaintiff by reason of her scars and disfigurement is within the discretion of the trier of fact. Blakeman v. Gopp , 364 P.2d

986 (Wyo. 1961).

5.

Permanent Impairment and Disability. Damages for permanent impairment and disability are recoverable if they are proven. See Little v. Kobos , 877 P.2d 752 (Wyo. 1994). When a physician provides evidence as to the permanency of an injury, the conclusion must be shown to be more probably true than not true. Blakeman v. Gopp , 364

P.2d 986 (Wyo. 1961).

6.

Punitive Damages. Punitive damages have been approved in circumstances involving outrageous conduct, such as intentional torts, torts involving malice and torts involving willful and wanton misconduct. Cramer v. Powder River Coal, LLC , 204 P.3d 974 (Wyo.

2009).

III. Model Jury Instructions:

a. Measure of Damages – Personal Injury Wyoming Civil Pattern Jury

Instructions 4.01

[Regardless of how you decide on the question of liability][If you decide for the Plaintiff on the question of liability][If you find that the Plaintiff is

50% or less at fault], you must fix the amount of money that will reasonably and fairly compensate the Plaintiff for those elements of damage proved by the evidence, taking into consideration the nature, extent, and duration of the injury.

The claimed elements of damage are:

1. The pain, suffering, and emotional distress experienced as a result of the injuries [and those reasonably probable to be experienced in the future;

2. Disability and/or disfigurement;

369

3. Loss of enjoyment of life and any loss of enjoyment of life reasonably probable to be experienced in the future. The award for this specific element should not duplicate the award given or any other element of damage;

4. Loss of Earnings and Earning Capacity. The value of time, earnings, profits, salaries lost to this date, and the present cash value of any earnings reasonably probable to be lost in the future, taking into consideration any lost earning capacity of the plaintiff;

5. Medical expenses. The reasonable expense of necessary medical care, treatment, and services received to date and any medical expense reasonably probable to be incurred in the future;

6. Caretaking. The reasonable expense of necessary help in the home that has been required as a result of the injury and any such help that is reasonably probable to be required in the future.

Whether any of these elements have been proved is for you to determine.


Parents‘ claim for medical expenses is derivative of child‘s claim.

Thunder Hawk v. Union Pac. R. Co.

, 844 P.2d 1045 (Wyo. 1992). The parents‘ claim for medical expenses arising because of a tortious injury to their minor child is not required to be joined in a single action with the minor‘s claim for

I. personal injuries. See Grove v. Pfister , 110 P.3d 275 (Wyo. 2005).


Damages recoverable in a Wyoming wrongful-death action are proscribed by statute. W.S.A. § 1-38-102.


1.

Loss of Child Services, Loss of Support, Medical and Funeral

Expenses. Pecuniary damages are recoverable. W.S.A. § 1-38-102.

In Coliseum Motor Co. v. Hester , 3 P.2d 105 (Wyo. 1931), the

Wyoming Supreme Court held that fair and just damages included losses of a pecuniary nature, such as the loss of the child‘s services during minority; loss of support or services that the child was under no obligation to render, if the circumstances show that the services would probably be rendered; and attendant medical and funeral expenses.

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The statute does not limit the amount of recovery under the wrongfuldeath statute.

2.

―Investment.‖

The ―investment‖ of the money spent in birth and rearing of children is not a proper measure of damages under the wrongful-death statute. Danculovich v. Brown, 593 P.2d 187, 196

(Wyo. 1979).

II.


1.

Future Companionship, Society and Comfort, and Mental

Anguish of Survivors. Damages for loss of probable future companionship, society and comfort are recoverable. W.S.A. § 1-38-

102. On the other hand, damages for mental suffering or anguish of the survivors of the decedent are excluded as an element of damages under the statute. Coliseum Motor Co. v. Hester , 3 P.2d 105 (Wyo.

1931).

2.

Emotional Distress. However, emotional distress damages may now be recovered apart from a wrongful-death claim under theories of intentional or negligent infliction of emotional distress. R.D. v. W.H.

,

875 P.2d 26, 31 (Wyo. 1994).

3.

Punitive Damages . Punitive damages are recoverable. W.S.A. § 1-

38-102.


Measure of Damages – Wrongful Death Wyoming Civil Pattern Jury

Instructions 6.02

If you find for the Plaintiff on the question of liability, you shall determine

[without regard to any percentage you have allocated as to the loss of chance claim] the amount of damages, if any, sustained by [each] [the] claimant, taking into account the nature, extent, and duration of each of the following:

1.

The amount each such claimant has failed or will fail to receive from the decedent‘s earnings, as explained in the following instruction;

2.

The loss of probable future companionship, society and comfort, which shall not include any damages for claimant‘s mental anguish; and

371

3.

Any other monetary loss sustained and proved by any of the claimants resulting from the death of the decedent, including funeral expenses and other proper charges.

There is no formula that the court can give you for the determination of damages for loss of probable future companionship, society, and comfort. However, this amount may not include damages for mental anguish and/or suffering. It is not necessary that any witness shall have expressed any opinion as to the dollar amount of damages. Your award, if any, should be such sum as will fairly and adequately compensate the claimants. The amount awarded, if any, rests within your sound discretion, and it is up to you to determine taking into consideration all the evidence in this case and from your knowledge, observation, and experience in life. Your award, if any, should be for what damages are reasonable and just.

372

CANADA

Lindsay Lorimer

McMillan LLP

5

Toronto, Ontario

(416) 865-7000


I.


1 . Property Damages . Property damages are recoverable.

2.

Medical and Other Related Expenses . Canada has a comprehensive system of public health care administered by provincial health authorities. Provincial statutes authorize subrogated claims by these bodies to recover health care costs attributable to the tortious conduct of third parties.

6

The health authorities can recover from at-fault parties (and their insurers) the cost of any publicly-insured health services provided up to the time of settlement or judgment. The authorities may also recoup the cost of future health care services that an injured person may need as a result of the tortious conduct. These subrogated claims must generally be addressed as part of any settlement. In some provinces, legislation prohibits a liability insurer from settling any personal injury claim without advance notice to the public health authority so that the authority‘s subrogated claim can be properly addressed.

7

Most provinces, however, bar their authority from launching subrogated claims in motor vehicle accident cases where the injured health-plan beneficiary is insured.

8

Past and future medical costs not covered by a province‘s health insurance program,

5

I would like to thank Simon Kupi, Articling Student at McMillan LLP, for his assistance in the preparation of this overview.

6

See Ontario Health Insurance Act , R.S.O. 1990, c. H.6, s. 30; British Columbia Health Care

Costs Recovery Act, S.B.C. 2008, c. 27, s. 7; Alberta Hospitals Act , R.S.A. 2000, c. H-12, s. 62;

Saskatchewan Department of Health Act , R.S.S. 1978, c. D-17, s. 19(3); The Health Services

Insurance Act (Manitoba), C.C.S.M., c. H-35, s. 98.2(1); Quebec Health Insurance Act , R.S.Q., c.

A-29, s. 18; New Brunswick Health Services Act , R.S.N.B. 1973, c. H-3, s. 5(3); Nova Scotia

Health Services and Insurance Act , R.S.N.S. 1989, c. 197, s. 18(3); Prince Edward Island Health

Services Payment Act , R.S.P.E.I. 1988, c. H-2, s. 22(4); Newfoundland Medical Care Insurance

Act, S.N.L. 1999, c. M-5.1, s. 19(3); Yukon Health Care Insurance Plan Act, R.S.Y. 2002, c. 107, s. 9; Northwest Territories Hospital Insurance and Health and Social Services Administration Act,

R.S.N.W.T. 1988, c. T-3, s. 19; Nunavut Hospital Insurance and Health and Social Services

Administration Act, R.S.N.W.T. (Nu) 1988, c. T-3, s. 19.

7

See e.g. Ontario Health Insurance Act , R.S.O. 1990, c. H.6, s. 35; Saskatchewan Department of

Health Act, R.S.S. s. 19(6); P.E.I. Health Care Costs Recovery Act , R.S.P.E.I. 1988, c. H-2, s. 13;

8

See e.g. Ontario Health Insurance Act , R.S.O. 1990, c. H.6, s. 30(5); Alberta Hospitals Act ,

R.S.A. 2000, c. H-12, s. 62(3)(b); Nova Scotia Health Services and Insurance Act , R.S.N.S. 1989, c. 197, s. 18(10); Prince Edward Island Insurance Act , R.S.P.E.I. 1988, c. I-4, s. 65.1(7); Medical

Care Insurance Act , S.N.L. 1999, c. M-5.1, s. 19(1).

373

however, such as physiotherapy expenses, are recoverable as pecuniary damages.

3.

Loss of Wages or Wage-Earning Capacity . Pre-trial lost earnings are recoverable as special damages in Canada. The Supreme Court of

Canada has also held loss of wage-earning capacity to be recoverable, not ―based on a fixed value that has been assigned to an abstract capacity to earn,‖ but rather on ―the value of the earnings that she or he would have received over time, had the tort not been committed‖:

M.B. v. British Columbia, [2003] 2 S.C.R. 477 at paras. 47-50.


1. General Damages . In Canada, a composite award of general damages is given in respect of all non-pecuniary losses suffered by a plaintiff, including pain and suffering, loss of amenities and loss of expectation of life. This award aims at providing a plaintiff with ―reasonable solace for his misfortune‖ in the form of physical arrangements which can make his life more endurable, as ―no money can provide true restitution‖: see

Andrews v. Grand & Toy Alberta Ltd.

, [1978] 2

S.C.R. 229. Throughout Canada, general damages are subject to an inflation-adjusted $100,000 ―cap‖ set in 1978 (and standing at about

$350,000 today) by the Supreme Court of Canada in a trilogy of cases.

See Andrews , above; Thornton v. Prince George School District 57 ,

[1978] 2 S.C.R. 267; and Arnold v. Teno , [1978] 2 S.C.R. 287. Awards in the neighborhood of the cap are generally reserved for the most serious injury cases, such as those involving quadriplegia or severe brain damage.

2. Aggravated Damages

. Canadian courts do not view ―aggravated damages‖ and ―punitive damages‖ as synonymous. Unlike punitive damages, aggravated damages are compensatory in nature. They may augment a general damages award where the plaintiff‘s harm has been aggravated by the manner in which it was inflicted. See Vorvis v.

Insurance Corp. of British Columbia , [1989] 1 S.C.R. 1085 at 1098-

99. Aggravated damages may take into account circumstances such as humiliation, degradation, violence, oppression, inability to complain, reckless conduct which displays a disregard of the victim and postincident conduct which aggravates the harm to the victim: T.W. v. Seo

(2005), 256 D.L.R. (4th) 1 (Ont. C.A.) at paras. 69-70.

3. Punitive Damages . In Canada, punitive damage awards are relatively rare, generally modest and limited to ―high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour‖: Hill v. Church of

Scientology of Toronto , [1995] 2 S.C.R. 1130. The highest punitive damage award to date has been a $1 million sum awarded against an

374

insurer acting in bad faith in Whiten v. Pilot Insurance Co.

, 2002 SCC

18.

4. Disfigurement . Disfigurement, including burns or scarring, is recoverable under Canadian law. Disfigurements to a child, affecting his or her lifelong appearance and self-esteem, may attract particularly high damage awards as compared with an adult: see Webb v. Weiglein

(2006), 152 A.C.W.S. (3d) 842 (Ont. Sup. Ct. J.) at para. 48.

Disfigurement, however, cannot be separately-awarded and thus forms part of a ―capped‖ general damages award in respect of ―pain and suffering.‖

5. Loss of Use of Limb . The loss of use of a limb can be compensated for within an award for general damages. See Andrews , above.

6. Emotional Distress . Negligent infliction of nervous shock or

―psychiatric damage‖ has been recognized as compensable in Canada, but has been narrowly-circumscribed by courts. The harm must have been reasonably-foreseeable to the party whose negligence caused it.

Extraordinary, ―individualized‖ reactions to ordinary events are unlikely to be compensable. The damage in question must ―rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if reluctantly, accept.‖ See Mustapha v. Culligan

Canada Ltd.

, 2008 SCC 27. Finally, the award cannot be granted separately from general damages, and is thus subject to Canada‘s

―cap‖ over that head of recovery.

III.

Jury Instructions: a.

Damages – Personal Injury – General Damages

(British Columbia)

―Non-pecuniary losses are personal injury losses that have not required an actual outlay of money. The purpose of such an award is to provide solace to the plaintiff for such things as pain, suffering, disability, inconvenience, disfigurement, loss of enjoyment of life, and loss of expectation of life.

One purpose of an award for damages for non-pecuniary loss is to substitute other amenities for those that the plaintiff has lost—not to compensate the plaintiff for the loss of something with a money value. …

Your award should address such losses suffered up to the date of trial and also those [he/she] will suffer in the future. …

You should understand that the exercise of determining an appropriate award for non-pecuniary loss is not intellectual in the sense that it is taught as a course at law school. You can decide what is the correct figure. Your figure may differ from what I think is appropriate, but that does not

375

necessarily mean you are wrong and I am right. You bring to the law the common sense of the community. Your decision helps the courts keep in touch with the views of the citizens, whom the law is designed to serve. …

In this trial, you heard evidence that the plaintiff suffered [catastrophic, devastating, severe, serious] injuries as a result of the event of [date].

Whichever evidence you prefer, in a situation such as this there is a special direction I must give you. The law imposes an upper limit on the amount of money you may assess as damages for non-pecuniary losses in the nature of pain, injury, suffering and loss of enjoyment of life.

If you conclude that this is an instance where the plaintiff has suffered catastrophic or very severe injuries because of the event(s) of [date], there is a rough upper limit you may award the plaintiff for non-pecuniary damages because or [his/her] injuries. Examples of the kinds of injuries that warrant this description include, but are not limited to, quadriplegia, paraplegia, and total functional loss, but do not include cases where a person is unaware of their injuries because they are insentient or comatose.

[Read paragraph (1) or (2) as appropriate.]

(1) Evidence was given to the effect that the rough upper limit today is the sum of $ [amount].

(2) No evidence was led as to the amount of the limit. However, I can tell you that it was fixed by the Supreme Court of Canada in 1978 at $100,000. Since then, we have had inflation. Today it is somewhere around the figure of $ [amount].‖

(R. Dean Wilson et al., CIVJI: Civil Jury Instructions , 2d ed. (Vancouver,

BC: The Continuing Legal Education Society of British Columbia, 2010) at § 12.3-12.7)


In the province of Ontario, a parent has the right to sue to recover medical or other expenses paid in connection with injuries to his or her child. The parent may recover his or her actual expenses, loss of income and compensation for loss of guidance, care and companionship: see Family Law Act , R.S.O. 1990, c. F-3, s. 61. This right does not end once the minor reaches the age of majority. Other provinces, in contrast, allow no such ―derivative‖ claim outside of instances of fatal injury, as discussed below.

In all provinces, a minor has no standing to sue until he or she reaches the age of majority. Until then, a minor requires a litigation guardian to proceed with

376

a claim.

9

A parent can serve that role. However, in personal injury actions, unless the parent also joins the minor as a co-defendant, he or she will be without any entitlement to the expenses claimed for: Hamilton v. Berger , [1972] 3

W.W.R. 766 (B.C.S.C.).


In Canada, wrongful death claims, including those in respect of a minor, are governed by provincial legislation.

10

Entitlements to relief vary from province to province. All such claims, however, only stand if the deceased—had he or she not been killed by the wrongful act in question—would have been able to sue the putative defendant personally. Each statute sets out who may bring a claim for damages against those responsible for their family member‘s death, as well as the categories of recovery available.


1. Funeral, Medical and Other Related Expenses . The provincial fatal accidents acts, as well as Ontario‘s

Family Law Act , provide that expenses relating to the deceased‘s funeral and the disposal of the deceased‘s body are recoverable. The acts also provide for the recovery of expenses incurred for the care of the deceased between the time of his or her illness and death. Family members‘ transportation and accommodation costs related to visits are also typically included.

Some acts provide that grief counseling for immediate family

11 members is recoverable.

2. Lost Monetary Support . The fatal accidents statutes often also provide, more generally, for the recovery of family members‘

―pecuniary loss.‖ That includes lost financial support from the deceased. Claimants are entitled to receive the present value of what

9

Minors, so long as they have not appointed a litigation guardian, are not subject to Ontario‘s limitation period regime, which usually bars claims two years after they are ―discovered‖: see the

Ontario Limitations Act , R.S.O. 1990, c. L.15. However, once a minor appoints a litigation guardian, his or her limitation period begins running. This is in contrast to the rules governing in many U.S. states.

10

See Ontario Family Law Act , R.S.O. 1990, c. F-3, s. 61; British Columbia Family Compensation

Act , R.S.B.C. 1996, c. 126, s. 2; Alberta Fatal Accidents Act , R.S.A. 2000, c. F-8, s. 2;

Saskatchewan Fatal Accidents Act , R.S.S. 1978, c. F-11, s. 4; The Fatal Accidents Act

(Manitoba), C.C.S.M. c. F-50, s. 2; New Brunswick Fatal Accidents Act , R.S.N.B. 1973, c. F-7, s.

2; Nova Scotia Fatal Injuries Act , R.S.N.S. 1989, c. 163, s. 3; Prince Edward Island Fatal

Accidents Act , R.S.P.E.I. 1988, c. F-5, s. 4; Newfoundland and Labrador Fatal Accidents

Act , R.S.N.L. 1990, c. F-6, s. 3; Yukon Fatal Accidents Act , R.S.Y. 2002, c. 86, s. 2; Northwest

Territories Fatal Accidents Act , R.S.N.W.T. 1988, c. F-3, s. 2; Nunavut Fatal Accidents

Act , R.S.N.W.T. (Nu) 1988, c. F-3, s. 2. In Quebec, dependants‘ wrongful death flow from Article

1457 of the Civil Code of Quebec , S.Q. 1991, c. 64: see Augustus v. Gosset , [1996] 3 S.C.R. 268.

11

See e.g. Alberta Fatal Accidents Act , R.S.A. 2000, c. F-8, s. 7(d); Saskatchewan Fatal Accidents

Act , R.S.S. 1978, c. F-11, s. 4(2)(c).

377

was their expected future stream of economic benefits from the deceased, taking both positive and negative contingencies into account. Occasionally, where a reasonable basis exists to infer that a child would financially-support his or her parents in the future—often based on the family‘s cultural or economic circumstances—courts will award lost monetary support to the latter: see e.g. Ayeras v. Front

Runner Freight Ltd.

, 1998 CarswellBC 1644 (S.C.).


1. Loss of Care, Guidance and Companionship . Canadian provinces conflict in their recognition of loss of care, guidance and companionship as a ground of recovery on a minor‘s death. Many of the fatal accidents statutes provide that only ―pecuniary‖ damages may be recovered.

12

However, the Supreme Court has interpreted that statutory language not to preclude the ―loss of care, guidance and companionship‖ claims expressly set out in most 13

of the statutes: see

Ordon Estate v. Grail , [1998] 3 S.C.R. 437 at para. 101. The British

Columbia Court of Appeal has rejected any damages for ―love, affection or companionship,‖ which language is not present in its legislation: see Bianco v. Fromow (1998), 161 D.L.R. (4th) 765.

Alberta, Saskatchewan and Manitoba provide fixed sums to spouses, parents or children on the ground.

14

Most litigated claims, to date, have been modest in size. In one recent case, however, the Ontario

Court of Appeal upheld three $100,000 awards to the parents and brother of a two-year-old child who, due to the defendant‘s negligence, fell five stories out of an apartment window and suffered a severe frontal lobe injury: see Sandhu v. Wellington Place Apartments , 2008

ONCA 215. Those awards remain the largest of their kind in Canada.

2. General, Aggravated and Punitive Damages . Survivors may not claim non-pecuniary damages for pain and suffering, loss of amenities or loss of expectation of life, nor can they claim emotional suffering or

12

See Ontario Family Law Act , R.S.O. 1990, c. F-3, s. 61(1); The Fatal Accidents Act

(Manitoba), C.C.S.M. c. F-50, s. 3(2); New Brunswick Fatal Accidents Act , R.S.N.B. 1973, c. F-7, s. 3(2); Prince Edward Island Fatal Accidents Act , R.S.P.E.I. 1988, c. F-5, s. 6(2).

13

See Ontario Family Law Act , R.S.O. 1990, c. F-3, s. 61(2)(e); Alberta Fatal Accidents

Act , R.S.A. 2000, c. F-8, s. 8(2); The Fatal Accidents Act (Manitoba), C.C.S.M. c. F-50, s. 3(4);

New Brunswick Fatal Accidents Act , R.S.N.B. 1973, c. F-7, s. 3(4); Nova Scotia Fatal Injuries

Act , R.S.N.S. 1989, c. 163, s. 5(2)(d); Prince Edward Island Fatal Accidents Act , R.S.P.E.I. 1988, c. F-5, s. 6(3)(c).

14

See e.g. Alberta Fatal Accidents Act , R.S.A. 2000, c. F-8, s. 8(2) ($45,000 for children, $75,000 to partners and parents); Saskatchewan Fatal Accidents Act , R.S.S. 1978, c. F-11, s. 4.1 ($30,000 for children and parents, $60,000 to spouses) ; The Fatal Accidents Act (Manitoba), C.C.S.M. c. F-

50, s. 3.1(2) ($30,000 for spouses, common-law partners, support recipients, parents and children, and $10,000 to other family members).

378

punitive damages: Campbell v. Read , [1988] 3 W.W.R. 236

(B.C.C.A.).

III. Jury Instructions: a.

Damages – Wrongful Death – Child

(British Columbia)

―In the case of an event that causes the death of a child, our law provides that damages may be awarded to the plaintiffs in proportion to the pecuniary loss suffered by them. In this case the plaintiffs are the mother and father of the deceased child (and counsel have agreed that you need not divide the loss which the mother or father have suffered separately, but you may award the damages to them jointly).

The measure of damages is the financial or pecuniary loss suffered by the parents as a result of the death of their child. You must not give damages for mental suffering or by way of comfort for the injured feelings.

Damages must not be given for the loss of the comfort and society of the child, nor for grief and sorrow.

Pecuniary loss means the actual or anticipated financial benefit of which the parents have been deprived by the death of their child. In considering this you can take into account the present loss that might reasonably have been expected in the future. In other words, it is the amount of financial benefit which the parents might reasonably have expected their child had

[he/she] remained alive. This may include an amount for the services which [the deceased child] may have provided in the home, as well as direct monetary contributions. The parents are not required to prove a loss in dollars and cents, but only that they have suffered real injury capable of pecuniary compensation.

As an offset against the factors of loss that I have mentioned, you should take into consideration what it would have cost the plaintiff(s) to educate and support [the deceased child] had [he/she] lived.

In weighing the matters that I have mentioned, you should consider the ages of [the deceased child] and of the plaintiff(s), the states of health and physical condition of [the deceased child] and of the plaintiff(s) at the time of the death or immediately prior thereto, and the respective life expectancies as shown by the evidence. You should also consider the disposition of [the deceased child], whether [he/she] followed any family or cultural traditions of support or filial piety, and whether or not [he/she] showed a likelihood of contributing to the support of the plaintiff(s). You should consider the earning capacity of [the deceased child], if any, and all other facts and evidence which throw light on the question of pecuniary loss.

379

As in the case of all awards of damages, the amount you arrive at should be fair and reasonable to all parties to this lawsuit. Do not attempt to give perfect compensation—that would be impossible. In assessing damage you will not consider any division of liability that you have made under question number [number].

Please remember that this is the only time you can award compensation.

The parties cannot return. Therefore, the amount awarded should be reasonable, not oppressive or extravagant. On the other hand, it should not be inadequate. You should endeavour to the best of your ability to strike a fair balance.

I will now review for you some of the relevant evidence.

[Review evidence regarding child‘s age, education, future plans, and apparent health.]

You will consider all of these facts and ask yourself what actual or anticipated financial benefit these parents have lost as a result of the death of [the deceased child], and you will fill in that amount in answer to the question number [number].‖

(R. Dean Wilson et al., CIVJI: Civil Jury Instructions , 2d ed. (Vancouver,

BC: The Continuing Legal Education Society of British Columbia, 2010) at § 13.14)

380

damages recoverable in a minor`s personal injury action and a

DAMAGES RECOVERABLE IN A MINOR’S

PERSONAL INJURY ACTION AND A

MINOR’S WRONGFUL DEATH CLAIM

Lynne Jones Blain

Dannel C. Duddy

Editors

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