Proving Damages In Wrongful Death and Survival Actions

By Attorney J. Whitfield Larrabee

Introduction

Because the harm caused by the wrongful death of any person normally has devastating effects on surviving family members, lawyers must exercise a great deal of diligence, creativity and compassion to successfully prove the full extent of their clients’ damages.

Most states currently provide that surviving family members in wrongful death actions can recover damages for loss of income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent in a wrongful death action. Many states also provide for recovery of punitive damages where defendants have acted intentionally or recklessly. With so many different types of damages available, lawyers can often prove damages using a large number of witnesses and with a great quantity of evidence. Managing and developing this evidence can thus require a great deal of skill and experience.

In addition to wrongful death actions, most states also provide for “survival actions.” Survival actions are often brought in conjunction with wrongful death claims to recover money for the fatal injuries, conscious pain and suffering and medical expenses leading to an individual’s death. Damages in these cases are normally proven with standard medical evidence and through the testimony of witnesses to an accident or to the suffering of the decedent.

Although the right to sue for wrongful death is universally recognized today, early in the 19th century such suits were prohibited in most states. All fifty states now provide for recovery of money damages in wrongful death actions. The federal government also provides for damages in wrongful death in cases falling under the jurisdiction of the federal government. Because laws vary from state to state (for example, some states assess damages based on survivors losses, while others assess damages based on losses to the estate), every case requires an individualized analysis of the applicable law concerning proof of damages.

In every wrongful death or survival action, the plaintiff (usually an immediate family member) has the burden of proving both liability and damages. Proof of liability often requires a great deal of tenacity and ingenuity on the part of the plaintiff’s attorneys. To prove liability, it is often necessary to force disclosure of information from recalcitrant defendants or biased and reluctant witnesses. Proving damages, on the other hand, can usually be done through cooperative witnesses, such as family members, friends, employers, medical doctors and other experts. The plaintiff’s attorney must spend a great deal of time with family members learning about their losses and about the history of the family, the individual clients and of the decedent. Other witnesses who knew the decedent and can describe what losses the family members have experienced must be located and interviewed. Photographs and videotapes that can clearly illustrate the life of the decedent and the losses suffered by family members must be located or developed. Economists, occupational experts, and medical experts must be identified in a timely manner and provided with the information they need to assess the plaintiffs’ losses. By investing the time and working hard, the plaintiff’s attorney will be able to prepare a strong case for damages.

Loss of Income

In most wrongful death cases, the loss of the decedent’s income that supported the spouse and children is a major component of damages. This includes future earnings, wages, salary, benefits and other compensation of the decedent. Increasingly, the loss of fringe benefits is becoming an important element of damages. The value of retirement plans, medical and dental benefits, and other common fringe benefits previously provided by the decedent often can be recovered for survivors.

In assessing damages involving loss of income, evidence of the deceased’s actual earnings, as well as the ability to earn money in the future, are important factors which the jury must consider. A wide range of factors may be relevant to determining what the future earning capacity of the deceased would have been, including life expectancy, health, occupation, age, work habits, and business skills. The calculation of these damages is normally performed by an economist, often with the assistance of an occupational expert.

Evidence concerning loss of income is limited or adjusted by at least three factors: 1) the likely time of retirement for the decedent, 2) the deduction for the prospective personal expenses of the decedent, and 3) the requirement that the jury adjust its award to reflect the net present value of the loss of income. Because earnings normally cease or are greatly reduced by retirement, a claim for lost income is normally limited by a reasonable projection of when the deceased likely would have retired. This projection can be based on statistics regarding retirement generally as well as on evidence of the individual preferences and characteristics of the decedent. Because survivors would not have benefited from income used for the personal consumption of the decedent, courts have universally held that the personal expenses that the decedent would have spent had he lived from the estimated lost earnings in calculating the loss of income to the survivors.

Finally, an award for loss of income must be adjusted to reflect the present value of the damages. Depending on the interest rate which is assumed, the present value can vary greatly. It is the job of the plaintiff’s economist to persuade the jury to adopt reasonable assumptions concerning future interest rates so that the survivors are able to realize the actual present value of their income losses.

Loss of Expected Inheritance

The loss of income and benefits can also effect another important element of damages in wrongful death cases, family members’ loss of an expected inheritance. When a person dies prematurely, their estate is often smaller than it would have been had they been able to accumulate wealth until they suffered a natural death. In such cases, family members can recover damages for their loss of an expected inheritance if their life expectancy was longer than the decedents and it was probable that they would have received an inheritance.

The decedent’s savings, investments and contributions to tax free or tax deferred retirement plans are important considerations in determining how large the decedent’s estate would have been and the extent of the loss of an expected inheritance. Other sources of assets may also be relevant. Would the decedent probably have received an inheritance if he had not been killed prematurely? Would the decedent have been the beneficiary of any gifts or life insurance policies? Once again, the plaintiff’s attorney must carefully explore the finances of the decedent’s family in order to effectively pursue a claim for loss of an expected inheritance.

Loss of Services

Relatives, most often the children and spouse of the decedent, have a right to recover for the value of the services that they would have received had the decedent not been killed. Courts have also permitted recovery by parents, siblings, and nieces and nephews where they can demonstrate a loss of services. These services can include managing the household, cooking, cleaning, shopping, transportation, and child care. Children can recover for the value of their lost parent’s training, advise and educational assistance to them. Home maintenance such as painting, carpentry, lawn and garden care are valuable services for which recovery can be obtained. The particular habits and characteristics of every family will result in numerous different categories of damages for loss of services. In order to maximize the recovery for the loss of services claim, the plaintiff’s attorney must have carefully examined these habits and characteristics until he or she fully understands every major type of services that the family has lost.

With a family member’s death, the law assumes that the family will need to hire outside help to perform the services previously provided by the decedent. The plaintiff’s attorney must work closely with an economist to prove the value of the lost services. The attorney must provide the economist with a complete description of the type of services which have been lost so that the economist can project the cost of the services based on the duration of time that the decedent would likely have provided the services to his or her family. Because services of the decedent would normally have been provided even beyond retirement, the projected loss is governed by life expectancy rather than expected retirement age. Where the decedent was a working spouse, the value of services which would have been provided after retirement can be significantly higher than the value of pre-retirement services.

Loss of Care, Guidance, Society, Love and Affection

Both the decedent’s spouse and children have a right to recovery for the loss of protection, care and affection, assistance, nurture, companionship, comfort, guidance, counsel, and advice. These damages are awarded to the children or spouse of a decedent for the loss of the decedent’s presence in their lives. Evidence concerning family activities and shared recreation, sports, or travel may be introduced to prove these damages. The guidance provided by the decedent in religious, spiritual or educational matters may also be offered in evidence. Testimony concerning loving or affectionate behavior of the decedent is highly relevant. Where the case involves loss of a spouse, damages for “loss of consortium” are available. This includes the loss of fellowship between a husband and wife, and the loss of enjoyment of the company, society, cooperation and affection of the spouse. Especially when the decedent was a caring spouse or parent, a skillful lawyer can effectively present evidence of these types of damages through the testimony of friends, neighbors and family members. Where available, photographs and videotape are highly useful in proving these damages.

Punitive Damages

Punitive damages are available in wrongful death cases in twenty seven states to punish defendants who have engaged in malicious, intentional or reckless behavior. In cases where these damages are available, they provide the plaintiff’s attorney with a powerful weapon if the attorney gathers the appropriate evidence. The key factors governing an award of punitive damages are the reprehensibility of the defendant’s conduct, the wealth of the defendant, as well as statutory or constitutional limits on the amount of punitive damages allowable. In response to “tort reform” efforts, many states have established caps on the amount of punitive damages that juries can award.

In building a strong case for punitive damages, the plaintiff’s attorney should thoroughly investigate the extent of the defendant’s wealth. The wealthier the defendant, the more punitive damages are necessary to effectively punish the defendant. It is important to determine the fair market value of the defendant’s assets and the amount of liquid assets that the defendant has on hand, including amounts that they can reasonably borrow. The defendant’s ability to generate income in the future is highly relevant. With corporate defendants, the existence of a parent company that can help to pay any judgment is generally admissible.

Conclusion

Because of wide variations in laws from state to state concerning the award of damages in wrongful death and survival actions, it is imperative that the plaintiff’s lawyer wisely choose the best venue in which to file suit. In many instances, plaintiffs have a choice of more than one state and locality in which to file a wrongful death action. Obviously, where the defendant is accused of malicious, intentional or reckless conduct, it is preferable to file suit in a jurisdiction that will permit the jury to award punitive damages.

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