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DAMAGES RECOVERABLE IN A MINOR’S

PERSONAL INJURY ACTION AND AMINOR’S WRONGFUL DEATH CLAIM

February 20, 2012

Lynne Jones Blain

Dannel C. Duddy

Editors



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ALABAMA

Sean W. ShirleyJoseph 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 resultingfrom the negligent bodily injury of his minor child, medical expensesin treating such injuries...‖ Smith v. Richardson , 171 So. 2d 96, 100(Ala. 1965).

2. Future Medical Expenses. ―It is well established in this jurisdictionthat future medical expenses are a proper element of damages in

personal injury actions.‖ Ensor v. Wilson By and Through Wilson , 519So. 2d 1244, 1273 (Ala. 1987).

3. Nursing Services. ―When a parent loses time from his work or dutiesin caring for an injured child, the measure of damages recoverable forthe parent is the value of the services in nursing or caring for thechild.‖ 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. 2d1358, 1363 (Ala. 1987) (jury award upheld where minor son and fatheralleged permanent disability sufficient to imply impairment of earningcapacity); Ensor v. Wilson , 519 So.2d 1244 (Ala. 1987) (upholding

jury award for minor, including loss of earning capacity, where experttestimony established her injury, her highest earnings at minimumwage, her limited ability to work in a sheltered environment at one-half 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 minorchild…compensation for loss of services.‖ Smith v. Richardson , 171So. 2d 96, 100 (Ala. 1965) ―[Loss of services] means the labor andassistance of a child rendered for the [parent], and impl[ies] a lossmeasured by pecuniary standards of value.‖ Id . See also Hannon v.

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



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value of the services and holding that because plaintiff failed todemonstrate the pecuniary value of minor‘s chores around the houseand 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 ofrecoverable 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 sufferingand 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. 2d1252, 1254 (Ala. Civ. App. 1998) (upholding $20,000 jury award forminor with head injury noting that ―the law is clear that there is noyardstick to measure the amount of recompense which should beawarded for pain or mental suffering.‖)

2. Punitive Damages. Like an adult, punitive damages are available ifthe defendant acted with fraud, malice, or wantonness which causedthe 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 punitivedamages where plaintiff daughter, by and through her mother,established the skating rink‘s willful and wanton conduct causing herinjury).

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 thefuture.

The measure of damages for medical expenses is:

All reasonable expenses for medical care, treatment, and servicesthat [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 theexpenses for it are reasonable, and the need for the treatment iscaused by [name of defendant]‘s conduct.



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

b. Parent’s Nursing Services for Child APJI § 11.25 (2011Supp.).

[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 minorchild] is the reasonable monetary value of the services

You must decide if the services to [name of minor child] werenecessary, the reasonably monetary value of the services, and if theneed for the services was caused by [name of defendant‘sconduct].

*Note on Use – A parent‘s lost time from work and lost wages arenot compensable.

c. Loss of Services – Minor Child Temporary Disability APJI11.26 (2011 Supp.)

[Name of plaintiff] says [he/she] lost the services of [name ofminor 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 ofchild]‘s services, and if the loss was caused by [name ofdefendant]‘s conduct.

*Note on Use – Use this instruction when a parent claims loss ofthe minor child‘s servi ces.

d. Loss of Services – Minor Child Permanent Disability APJI11.27 (2011 Supp.).

[Name of plaintiff] says that [name of minor child] is permanentlyharmed 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, thereasonable monetary value of the child‘s services, and if the lo sswas caused by [name of defendant]‘s conduct.

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

Who ―owns‖ the right to sue for medical expenses? Parent or child? Ifparent 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 aredivorced or separated, and custody is vested in one parent over the other, or if athird party has legal custody of the child, the parent or individual with legalcustody 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 havetwo years to file. The statute of limitations for a negligence action is two years inAlabama. See Ala. Code § 6-2-8.

In cases where the minor‘s parent claims damages extending beyond theage of majority the damages are split between the child and the parent. SeeWilliston v. Ard. , 611 So.2d 274 (Ala. 1992). The parent is covered for expensesincurred prior to the age of majority and the minor receives damages for lossesextending beyond the age of majority. In Williston the minor suffered irreversible

brain damage during a routine appendectomy. Id . at 276. The minor sued by andthrough 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 herfuture lost wages. Id . at 283. The Court affirmed a separate damage award forthe 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 failureto prove the loss of her child‘s services. Id . The Court upheld the remainder ofthe 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 thedeceased 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 theservants or agents of either, the father, or the mother as specified inSection 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 monthsfrom the death of the minor, the personal representative of the minormay commence an action.

(b) An action under subsection (a) for the wrongful death of the minorshall 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 bedistributed 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 puni tive innature, 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 fromcommitting the same or similar wrongful conduct.‖ Estes Health Care Centers,

Inc. v. Bannerman , 411 So. 2d 109, 112 (1982). ―Ordinarily, in a wrongful -deathaction, 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 suchdamages as the jury may assess in a court of competent jurisdiction withinthe 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 berevived against his personal representative and may be maintained thoughthere has not been prosecution, conviction or acquittal of the defendant forthe wrongful act, omission, or negligence.

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

(d) Such action must be commenced within two years from and after the deathof 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 deteror discourage [name of defendant] and others from doing the sameor similar wrongs in the future.

The amount of damages must be directly related to [name ofdefendant]‘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 tocompensate [name of plaintiff] or [name of decedent]‘s familyfrom a monetary standpoint because of his or her death.

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

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



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ALASKABrian R. Cannon

Harman, Claytor, Corrigan & WellmanRichmond, Virginia

(804) 747-5200



1. Medical Expenses. The parents own the right of recovery for medicalexpenses of a minor, absent an implied waiver by failing to objectwhen the minor seeks the damages or by testifying on behalf of theminor. Alaskan Village, Inc. v. Smalley , 720 P.2d 945, 950 (Alaska1986).

2. Future Medical Expenses. Future medical expenses are appropriatefor compensation. Such damages must be proven with a ―reasonable probability‖ that they will occur in the future. Pluid v. B.K. , 948 P.2d981, 984 (Alaska 1997). Once the existence of future medicalexpenses (or any other damages) has been proven to that standard, thenthe amount of those damages need only be proven at a level thataffords the fact finder an ability to make a reasonable estimate of thedamages. Id .

3. Future Lost Wages. ―Impairment of earning capacity‖ is a moreaccurate calculation of damages for future lost wages than simply ―lost

earnings.‖ Morrison v. State of Alaska , 516 P.2d 402, 404 (Alaska1973). This category is also related to life expectancy estimates. Inthe same case, the Supreme Court of Alaska found that a mortalitytable is not binding on a court, but deviation from it must be accountedfor 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-economicdamages to the greater of $400,000 or $8,000 times the life expectancyof the injured/deceased. AS § 09.17.010(b). This cap applies to both

personal injury and wrongful death claims. This restriction was upheldin 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 capis greater of $1,000,000 or $25,000 multiplied by the plaintiff's lifeexpectancy. AS § 09.17.010(c).

2. Punitive Damages. Punitive damages are available to minor if theconduct was done with malice, was outrageous, or evidenced recklessindifference to the interest of another. AS § 09.17.20(b). Tort reform

placed limits on recovery for these damages in a complex fashion thatdepends 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 theaccident) to (insert date of trial)]. [In fixing this amount, "medical care"includes: (insert any claimed services or items which the Court determinesare "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 thereasonable expense of necessary medical care reasonably probable to bereceived in the future. In order to award damages for a future medicalexpense, 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 forestimating the amount of the expense.

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

[In fixing this amount, "medical care" includes: (insert any claimed servicesor 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 isthe value of (work time) (earnings) (profits) (salaries) lost by the plaintifffrom the (insert date of the accident) to (insert date of trial). To calculate



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

Use Note

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

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

Comment

In personal injury cases, AS 09.17.040(b) requires the fact finder to reducefuture economic damages to present value, and to consider the effect offuture anticipated inflation. This instruction is intended to convey theseconcepts to the jury.

20.06 NON-ECONOMIC LOSSES

The (first, second, etc.) item of loss claimed by the plaintiff is for non-economic 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 fromthe injury. Such an award should fairly compensate the plaintiff for the non-economic losses (he) (she) has experienced from the date of the injury untilthe date of trial [and for non-economic losses that (he) (she) is reasonably

probable to experience in the future]. [In deciding how long the plaintiffmay 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 ofcompensation for non-economic losses, and the law does not require that anywitness testify as to the dollar value of non-economic losses. You mustexercise your reasonable judgment to decide a fair amount in light of theevidence and your experience.

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



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20.07M LIMIT ON NON-ECONOMIC DAMAGES – SEVEREPERMANENT 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 lifeactivities include functions such as caring for one's self, performing manualtasks, walking, seeing, hearing, speaking, breathing, learning and working.

20.07N LIMIT ON NON-ECONOMIC DAMAGES – SEVEREDISFIGUREMENT

Plaintiff claims that he/she was severely disfigured because of thedefendant'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 orembarrassment.

20.10 FUTURE DAMAGES - NO REDUCTION TO PRESENTVALUE

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 mustdisregard the fact that any amount you award the plaintiff may be paid beforethe actual loss occurs. You must also disregard the fact that the value ofmoney may change over time.

20.11 AGGRAVATION OF PRE-EXISTING CONDITION ORDISABILITY

A person who has a condition or disability at the time of an injury cannotrecover damages for that condition or disability. However, (he) (she) isentitled to recover damages for an aggravation of such pre-existing conditionor 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) moresusceptible to the possibility of ill effects than a normally healthy personwould have been, and even if a normally healthy person probably would nothave suffered any substantial injury. In other words, the law provides that adefendant takes the plaintiff as (he) (she) (it) finds (him) (her) (it).

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

by the aggravation.



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20.12 ADDITIONAL HARM RESULTING FORM ORIGINALINJURY

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

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

2. [Aggravation of the original injury resulting from the failureof (insert name or the word "others") to use reasonable carein transporting the plaintiff to a place where medicaltreatment is available.]

20.13 LIFE EXPECTANCY

In fixing the amount of compensation for some items of loss you may haveto decide the life expectancy of the plaintiff, [either] [as it was prior to theaccident] [and] [or] [what it is now after the accident]. I will now explainhow 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 youthe 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 lifeexpectancy of the plaintiff unless there is other evidence such as (his) (her)occupation, health, family history, habits, and other activities from whichyou can reasonably conclude that the plaintiff's life expectancy is longer orshorter 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 haveimpliedly waived a claim to those damages. Alaskan Village, Inc. v. Smalley , 720P.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 theminor has no dependents). AS § 09.55.570. If there are no statutory beneficiariessurviving, 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 deathof a person is caused by the wrongful act or omission of another, the personalrepresentatives of the former may maintain an action therefor against the latter, ifthe former might have maintained an action, had the person lived, against thelatter for an injury done by the same act or omission. The action shall becommenced within two years after the death, and the damages therein shall be thedamages the court or jury may consider fair and just. The amount recovered, ifany, shall be exclusively for the benefit of the decedent's spouse and childrenwhen the decedent is survived by a spouse or children, or other dependents. Whenthe decedent is survived by no spouse or children or other dependents, the amountrecovered shall be administered as other personal property of the decedent butshall be limited to pecuniary loss. When the plaintiff prevails, the trial court shalldetermine the allowable costs and expenses of the action and may, in itsdiscretion, require notice and hearing thereon. The amount recovered shall bedistributed only after payment of all costs and expenses of suit and debts andexpenses of administration.

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

(c) In fixing the amount of damages to be awarded under this section, thecourt or jury shall consider all the facts and circumstances and from them fix theaward at a sum which will fairly compensate for the injury resulting from thedeath. In determining the amount of the award, the court or jury shall consider butis 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 thecontinued life of the deceased and without regard to probable accumulations orwhat the deceased may have saved during the lifetime of the deceased;

(2) loss of contributions for support;



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

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

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

(3) that these contributions would have continued, had thedeceased live. In deciding whether the contributions would havecontinued, you may consider, among other things, the length oftime 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) whenconsidering 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 thedeceased's estate. Then, if you find that the plaintiff is entitled towin this lawsuit, in calculating the amount of compensation, youshould refer only to Instruction No. _____ and not to Instruction

No. _____.]

04.05B WRONGFUL DEATH — RECOVERY BY

STATUTORY BENEFICIARIESIf you decide that the defendant is legally responsible for the deathof the deceased, you must decide what amount of money will fairlyand justly compensate (each)(the) beneficiary for the harm caused

by the death of the deceased. [You must state separately theamount 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 howto measure a particular loss that you are required to award damagesfor that loss. For each item of claimed loss, you must decidewhether 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 thedefendant which forms the basis of your verdict.

If both of these things are true, then you must decide how muchmoney 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 WRONGFUL DEATH DAMAGES – PAST LOSS OFSUPPORT

The first item of claimed loss is the past loss of contributions for supportthat (the) (each) beneficiary could have reasonably expected to receivefrom 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, theamount of money the deceased would have had available to providecontributions for support; the willingness of the deceased to providecontributions for support; the extent of the support contributionscustomarily provided by the deceased in the past; the support contributions

reasonably expected to be provided by a (insert relationship of deceased tothe beneficiary/ies, e.g., husband to his wife and children); and how long(the) (each) beneficiary would have received such contributions forsupport. You may consider the contributions for support (the) (each)

beneficiary would have received from the deceased even though thedeceased may not have been legally required to provide support.

To determine how much money the deceased would have had availablefrom which to provide contributions for support, you should do thefollowing: 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 willexplain in a few minutes how to compute the amount the deceased couldhave earned. Subtract from that figure the income taxes the deceasedwould have paid on those earnings. Then subtract the amount thedeceased would have spent on (himself) (herself) during that period, had(he) (she) lived. The remaining amount is what the deceased would havehad available to contribute for support.



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04.06B WRONGFUL DEATH DAMAGES — FUTURE LOSS OFSUPPORT

The second item of claimed loss is the future loss of contributions forsupport that (the) (each) beneficiary could have reasonably expected toreceived 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 thedeceased continued to live.

In fixing this amount, you may consider, along with other evidence, theamount of money the deceased would have had available to providecontributions for support; the willingness of the deceased to providecontributions for support; the extent of the support contributionscustomarily provided by the deceased in the past; the support contributionsreasonably expected to be provided by a (insert relationship of deceased tothe 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 thedeceased 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 oftrial, (insert date), to the end of (his) (her) natural life expectancy. I willexplain in a few minutes how to compute the amount the deceased couldhave earned. Do not subtract any amount for payment of future incometaxes. Do subtract the amount the deceased would have spent on (himself)

(herself) had (he) (she) lived to the end of (his) (her) natural lifeexpectancy. The remaining amount is what the deceased would have hadavailable 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 presentcash value and how to reduce to present cash value.]

04.07 WRONGFUL DEATH DAMAGES — LOSS OFASSISTANCE 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 thoughthe deceased was under no legal obligation to provide such assistance orservices.

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



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assistance or services; the nature of the assistance or services customarily provided by the deceased; the assistance or services reasonably expectedto be provided by a (insert relationship of deceased to the

beneficiar(y)(ies), e. g., husband to his wife, mother to her adult son); andhow long the deceased would have provided such assistance or services.

04.08 WRONGFUL DEATH DAMAGES – LOSS OFCONSORTIUM

The item of claimed loss is the fair value of society, comfort, care, protection, affection and companionship that the deceased reasonablycould have been expected to provide to (the) (each) beneficiary if thedeceased 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.04.09 WRONGFUL DEATH DAMAGES — LOSS OFPROSPECTIVE 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 toimpart such skill or knowledge to (the) (each) beneficiary.

04.10 WRONGFUL DEATH DAMAGES — MEDICAL ANDFUNERAL EXPENSES

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

04.11 WRONGFUL DEATH DAMAGES — PAIN ANDSUFFERING 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



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ARIZONAJohn Merrick

Harman, Claytor, Corrigan & WellmanRichmond, Virginia

(804) 747-5200



1. Medical Expenses. Both the minor and the minor‘s parents areentitled to recover pre-majority medical expenses, but doublerecovery is not permitted. Estate of Desala v. Prescott UnifiedSchool 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 post-

majority medical expenses. Id.

2. Future Medical Expenses. A child may recover for futuremedical expenses. See City of Yuma v. Evans , 85 Ariz. 229, 336P.2d 135 (1959).

3. Nursing Services. A child may recover for future hospital ornursing expenses. See City of Yuma v. Evans , 85 Ariz. 229, 336P.2d 135 (1959). A parent may recover for the lost time awayfrom work to care for an injured child, medical expenses incurredin 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 appropriatemeasure 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'sservices and earnings, infant suing for personal injuries cannotordinarily recover for impairment of his earning capacity duringinfancy. S. A. Gerrard Co. v. Couch , 43 Ariz . 57, 29 P.2d151(1934).

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=0000661&FindType=Y&SerialNum=1934117636











21


1. Physical Pain and Suffering. Children may recover pain andsuffering. 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 , 85Ariz. 229, 336 P.2d 135 (1959).

2. Loss of Consortium. Parents may maintain a cause of action forloss of their child's consortium when the child suffers severe,

permanent and disabling injury that substantially interferes withchild's capacity to interact with parents in a normally gratifyingway; however, the injury need not be the functional equivalent ofdeath or even be categorized as ―catastrophic.‖ Whether thethreshold 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 injuriesare sufficiently severe to warrant a cause of action for loss ofconsortium, the trier of fact determines the question of recovery orthe amount recoverable based on the degree of that interference.

Pierce v. Casas Adobes Baptist Church, 162 Ariz. 269, 782 P.2d1162 (1989). Cause of action for loss of consortium is limited tospouses, parents and children. Kaufman v. Langhofer , 223 Ariz.249, 222 P.3d 272 (2009). Parents can recover damages for loss oftheir 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.

III. Jury Instructions

Revised Arizona Jury Instructions (Civil) 4 th : Personal InjuryDamages 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 andfairly compensate [ name of plaintiff ] for each of the following elements ofdamages proved by the evidence to have resulted from thefault 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 probableto 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 beincurred 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 l ife, that is, the participation in life‘sactivities to the quality and extent normally enjoyed beforethe injury.

Revised Arizona Jury Instructions (Civil) 4 th : Personal InjuryDamages 4.

If you find [ name of defendant ] liable to [ name of plaintiff ], you mayconsider assessing additional damages to punish [ name of defendant ] or todeter [ name of defendant ] and others from similar misconduct in thefuture. Such damages are called ―punitive‖ or ―exemplary‖ damages.

To recover such damages, [ name of plaintiff ] has the burden of proving byclear andconvincing evidence, either direct or circumstantial, that [ name ofdefendant ] acted with an evil mind. This required state of mind may beshown by any of the following:

1. Intent to cause injury; or2. Wrongful conduct motivated by spite or ill will; or3. [ Name of defendant ] acted to serve his own interests,

having reason to know and consciously disregarding asubstantial risk that his conduct might significantly injurethe rights of others.]

4. [[ Name of defendant ] consciously pursued a course ofconduct knowing that it created a substantial risk ofsignificant 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 ishighly probable. This burden of proof is more demanding than thestandard of more probably true than not true, which applies to all otherclaims in this case, but it is less demanding than the standard of proof

beyond a reasonable doubt, which is used in criminal cases.



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The law provides no fixed standard for the amount of punitive damagesyou may assess, if any, but leaves the amount to your discretion.[However, if you assess punitive damages, you may consider the characterof [name of defendant ]‘s conduct or motive, the nature and extent of theharm 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. , 155Ariz. 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.2d565 (1986); Linthicum v. Nationwide Life Ins. Co. , 150 Ariz. 326, 723P.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 chi ld’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).


I. Who May Recover

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

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

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

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



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D. For the purposes of subsection A, "personal representative" includesany 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 deathwithout 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 ofdecedent.

In an action for wrongful death, the jury shall give such damages as itdeems fair and just with reference to the injury resulting from the death tothe surviving parties who may be entitled to recover, and also havingregard to the mitigating or aggravating circumstances attending the

wrongful act, neglect or default. The amount recovered in such actionshall not be subject to debts or liabilities of the deceased, unless the actionis brought on behalf of the decedent's estate.

Other

1. Loss of Consortium. In Arizona, parents may recover loss ofconsortium claims for the wrongful death of their child, as well aschildren for the loss of their parents. Reben v. Ely , 146 Ariz. 309, 705P.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.2d120 (App. 1965). Although no case has addressed the loss of

probability of inheritance from a minor under the wrongful deathstatutes, 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 byall statutory beneficiaries in a wrongful death action. Vasquez v. State ,

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



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III. Jury Instruction

Revised Arizona Jury Instructions (Civil) 4 th : Personal InjuryDamages 3

If you find [ name of defendant ] liable to [ name of plaintiff ], you must thendecide the full amount of money that will reasonably and fairlycompensate [name of each survivor] [separately] for each of the followingelements of damages proved by the evidence to have resulted from thedeath 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 mentalsuffering already experienced, and reasonably probable to

be experienced in the future.

3. The income and services that have already been lost as aresult of the death, and that are reasonably probable to belost in the future.

4. The reasonable expenses of funeral and burial.

5. The reasonable expenses of necessary medical care andservices 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 theelements in paragraphs 1 and 2 may be inapplicable or cumulative, and theelements listed in paragraphs 3, 4, and 5 may be inapplicable. Customizethe instruction to fit the case.



26

ARKANSASCharles Clay

Christopher BirdJennifer Harbaugh

Weinberg, Wheeler, Hudgins, Gunn & Dial

Atlanta, Georgia(404) 876-2700



1. Property Damages . Property damages are generally recoverable inArkansas.

2. Medical and Other Related Expenses . A party seeking medicaldamages 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 isnot essential in every case to prove the reasonableness and necessity ofmedical 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 pastand future earnings or profits lost because of personal injuries arerecoverable as damages. Ishie v. Kelley , 302 Ark. 112, 114, 788S.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 torecover for the minor's earning capacity during minority).


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

Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991) (the court, inaffirming an award of $8,000,000, referred to the victim's inability to

participate in activities, the change in life-style, the need for futuresurgery, 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 timesthe amount of special damages when the plaintiff testified that she stillcarried on with her normal activities and did everything that she did

before the accident).

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



27

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

3. Loss of Use of Limb . The loss of use of a limb is a recoverableexpense. See Perkins Oil Co. v. Fitzgerald, 197 Ark. 14, 121 S.W.2d877, 886 (1938) ("The recovery, of course, should compensate for painand suffering, for humiliation and the anguish on account of the loss oflimbs, the impaired earning capacity, as well as the increased expenseof living occasioned by the injury"); Gaster v. Hicks, 181 Ark. 299, 25S.W.2d 760, 765 (1930) (stating that the embarrassment andhumiliation from the maimed limb was an element of damages to beconsidered 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 liablefor compensatory damages and that either or both of thefollowing aggravating factors were present and related to theinjury for which compensatory damages were awarded:

(1) The defendant knew or ought to have known, in light of thesurrounding circumstances, that his or her conduct wouldnaturally and probably result in injury or damage and that he orshe 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 forthe purpose of causing injury or damage.

The Plaintiff has the burden of proving these elements by clear andconvincing 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 morethan the greater of the following:

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

(2) Three (3) times the amount of compensatory damagesawarded in the action, not to exceed one million dollars($1,000,000).



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

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

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

(c) As to the punitive damages limitations established insubsection (a) of this section, the fixed sums of two hundredfifty thousand dollars ($250,000) set forth in subdivision (a)(1)of this section and one million dollars ($1,000,000) set forth insubdivision (a)(2) of this section shall be adjusted as of January1, 2006, and at three-year intervals thereafter, in accordancewith 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, thefinder of fact then shall determine whether and in what amount

punitive damages will be awarded.

(b) Evidence of the financial condition of the defendant andother evidence relevant only to punitive damages is notadmissible with regard to any compensatory damagesdetermination.

Ark. Code Ann. § 16-55-211.

5. Emotional Distress . A claim of negligent infliction of emotionaldistress 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 anguishcaused by negligence, where there is no physical injury.'‖ Id. at *7(quoting Erwin v. Milligan, 188 Ark. 658, 663, 67 S.W. 592, 594



29

(1934). ―'The reason that mental suffering, unaccompanied by physical injury, is not considered as an element of recoverabledamages is that it is deemed to be too remote, uncertain and difficult ofascertainment; and the reason that such suffering is allowed as anelement of damages, when accompanied by physical injury, is that the

two are so intimately connected that both must be considered becauseof 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 physicalimpact, 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 thetort of "outrage." To establish a claim for outrage, a plaintiff mustdemonstrate the following elements: (1) the actor intended to inflictemotional distress or knew or should have known that emotionaldistress was the likely result of his conduct; (2) the conduct wasextreme and outrageous, beyond all possible bounds of decency, andwas utterly intolerable in a civilized community; (3) the actions of thedefendant were the cause of the plaintiff's distress; and (4) theemotional distress sustained by the plaintiff was so severe that noreasonable person could be expected to endure it. Coombs v. J.B. HuntTransp., Inc., 2012 Ark. App. 24, ____ S.W.3d ____ (2012).Importantly, however, discomfort, upset, embarrassment, anxiety, lossof sleep, and depression do not meet the ―mental distress‖ element ofthe 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 ], youmust then fix the amount of money which will reasonably and fairlycompensate [him][her] for any of the following __________ elements ofdamage sustained [which you find were proximately caused by the(negligence)(or)(fault) of (or ) ]:

[Here insert the elements.]

[First:]

[Second:]

[Third:]

[etc.:]



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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, andPermanency 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 istemporary or permanent.

AMI 2203 Measure of Damages — Aggravation of Pre-existingCondition

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 alreadyexisted 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] wouldhave 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 andservices 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 inthe future].

AMI 2205 Measure of Damages — Pain, Suffering, and MentalAnguish — Past and Future

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

AMI 2206 Measure of Damages — Loss of Earnings or Profits — Pastand Future

The value of any [earnings][profits][salary][working time] lost [and the present value of any (earnings)(profits)(salary)(working time) reasonablycertain 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.



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AMI 2208 Measure of Damages — Scars, Disfigurement, and VisibleResults of Injury

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

AMI 2209 Measure of Damages — Caretaking Expense — Past andFuture

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

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

[If you decide for __________ (against any party [he][she] is suing) on[his][her] claim for damages resulting from injuries to __________,] [Ifan interrogatory requires you to assess the damages of __________resulting from injuries to __________,] you must then fix the amount ofmoney which will fairly and reasonably compensate [him][her] for any ofthe following elements of damage which you find were proximatelycaused by the [negligence][or][fault] of [or ] :

(a) [The reasonable expense of any necessary medical care, treatment andservices received by __________ (including[transportation][and][board][and][lodging] expenses necessarilyincurred in securing such care, treatment, or services) (and the presentvalue 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 andtreatment 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 inthe 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 thedamages of __________], you must then fix the amount of money which



33

(j) [If property damage is involved insert here appropriate clause fromAMI 2227 through 2229.]

Whether any of these elements of damage has been proved by theevidence 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 wrongdoerand to deter the wrongdoer and others from similar conduct. In order torecover punitive damages from __________, __________ has the burdenof proving [by clear and convincing evidence][either, first] :

[That __________ knew or ought to have known, in the light of thesurrounding circumstances, that [his][her][its] conduct would naturallyand probably result in (injury)(damage) and that [he][she][it] continuedsuch conduct (with malice or) in reckless disregard of the consequencesfrom 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 thefinancial condition of __________, as shown by the evidence.]

[―Clear and convincing evidence‖ is proof that enables you withouthesitation to reach a firm conviction that the allegation is true.]

You are not required to assess punitive damages against __________ butyou 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 distinctcauses 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 hisinjuries, which includes damages for pain and suffering, personal disfigurement,future medical expenses reasonably certain to be required after majority and



34

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 incurredduring his minority." Id. Rather, the parents own the right to recover for medicalexpenses 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 medicalinjury 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 anaction on behalf of a minor child for medical expenses incurred and to be incurredduring his minority, where he has not paid them and is not liable for them. By anoverwhelming 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 isunemancipated and not responsible for his own debts and has not paid the bill forsuch 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 forexpenses incurred and to be incurred by the parent on account of an injury to thechild. 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 ofanother, two causes of action arise: first, there is a cause of action for the estateunder 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. U nder Arkansas‘ Wrongful Death Statute, statutory beneficiaries may

recover for loss of the services and companionship of the decedent and any mentalanguish (including grief normally associated with loss of a loved one) resultingfrom his/her death. The Administrator of the Estate may also recover damages forthe decedent‘s loss of life, funeral expenses, pain and suffering and lost futureearnings.


1. Property Damages . Property damages are recoverable. See ArkansasCode Ann. 16-62-101.

2. Funeral, Medical and Other Related Expenses . Arkansas' SurvivalStatute allows the administrator of the estate of the deceased torecover, on behalf of the estate, expenses suffered by the decedent

prior to his death such as medical expenses, lost earnings andconscious pain and suffering. The administrator may also recover forfuneral expenses. Meredith v. Buchman, 101 F. Supp. 2d 764, 766(E.D. Ark. 2000).



35

3. Life Expectancy . Arkansas courts consider age and life expectancy ofthe decedent in determining lost earning capacity. See Lowe v. U.S.,662 F. Supp. 1089 (W.D. Ark. 1987). Future damages must bereduced to present value by the jury. The jury will consider the factthat money recovered and invested or saved will earn interest to pay

for future losses. The jury must therefore reduce any award ofdamages 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, includingmental anguish associated with the loss of a loved one, arerecoverable. Ark. Code Ann. § 16-62-102(f)(1). Accordingly, mentalanguish suffered by the surviving parents of a minor child, includinggrief 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.2d569, 572 (1974). Loss of probable future contributions are alsorecoverable. See id.

2. Pain and Suffering . Pain and Suffering experienced by the Decedent between the time of injury and his/her subsequent demise isrecoverable. 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 ofdamages provided by law, a decedent's estate may recover for thedecedent's loss of life as an independent element of damages. Ark.Code Ann. 16-61-101(b). Loss-of-life damages seek to compensate adecedent for the loss of the value that the decedent would have placedon his or her own life. Durham v. Marberry , 356 Ark. 481, 492, 156S.W.3d 242, 248 (2004).

5. Emotional Distress . Arkansas's wrongful-death statute allows forstatutory beneficiaries, who have suffered no physical injury as a resultof a tortfeasor's negligence, to recover for mental anguish. See Ark.Code Ann. § 16-62-102(f)(2). The proximity of relationship betweenthe deceased and the survivors is the most significant factor indetermining whether recovery is allowable. Distant relatives generallyhave no more than normal grief and will not be allowed to recoverwithout establishing something more. Martin v. Rieger, 289 Ark. 292,711 S.W.2d 776 (1986). Arkansas courts consider the followingfactors in evaluating the relationship between the decedent and



36

survivors: (1) The duration and intimacy of the relationship and theties of affection between decedent and survivor; (2) Frequency ofassociation and communication between an adult decedent and anadult 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 ortroubled sleep over an extended period; (8) Obvious extreme orunusual nervous reaction to the death; (9) Crying spells over anextended period of time; (10) Adverse effect on survivor's work orschool; (11) Change of personality of the survivor; (12) Loss of weight

by survivor and other physical symptoms; and (13) Age and lifeexpectancy 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 thedamages 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 providingfor the child. You should then fix an amount that would fairly andreasonably 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 earninganything or rendering services of any value, the value of its probablefuture services to the parent during its minority is necessarily a matter ofconjecture, and may be determined by you without the testimony ofwitnesses.]

[You should also determine an amount from the evidence that wouldreasonably 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 anguishincludes the mental suffering resulting from emotions, such as grief anddespair, associated with the loss of a loved one.]

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



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(and mental anguish) of the deceased prior to death][and][the reasonablevalue of medical expenses attributable to the fatal injury][and][propertydamage][and][the value of any (earnings) (profits) (salary) (workingtime) 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 isfor 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][lossof earnings][or][loss of earning capacity][or][loss of contributions] , youmust determine the amount of these damages.

If these damages are of a continuing nature, you may consider how longthey will continue. [If they are permanent in nature, then in computingthese 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 notand that a person's earnings may remain the same or may increase ordecrease in the future.]

Mortality tables are evidence of an average life expectancy of a personwho has reached a certain age, but they are not conclusive. They may beconsidered 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 livelonger 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 withrespect to certain elements of damage which you may find that

__________ will sustain in the future. This simply means that if you findthat __________ is entitled to recover any elements of damage whichrequire you to determine their present value, you must take intoconsideration 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 forthe reasonable earning power of money.



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CALIFORNIAMerton A. HowardShannon M. Nessier

Hanson Bridgett LLC(415) 777-3200


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


1. Medical Expenses: Past medical expenses reasonably incurred fortreatment of injuries can be recovered by both the minor child and the

parents. White v. Moreno Valley Unified School District (1986) 181Cal.App.3d 1024, 1030. Future medical expenses may also berecovered, including medical monitoring costs, but there must be areasonable degree of certainty for the need for such monitoring. Potterv. Firestone Tire and Rubber Company (1993) 6 Cal.4th 965, 1004.Keep in mind that recovery for these expenses, to the minor orotherwise, is still subject to reduction under principles of comparativefault under California law. Hasson v. Ford Motor Company (1977) 19Cal.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 hislost future earnings and the impairment to his earning capacity, withthe parents' rights to such future awards bounded by the injured child'sreaching the age of majority. Heiner v. Kmart Corp. (2000) 84Cal.App.4th 335, 348; Cal. Family Code § 7500.

3. Service to Parents: Parents may also recover for any services theminor 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 acompensable 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



39

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 capof $250,000.00 for pain and suffering damages in medical professionalnegligence cases brought against a health care provider. Thesedamages may only be recovered by the injured person and not a

parent.

2. Disfigurement: Usually awarded with humiliation andembarrassment, as a pain and suffering damage, disfigurement could

be considered a separate compensable detriment even if it does notgive rise to those injuries.

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

However, most courts view these damages as properly a component ofthe damages for pain and suffering, and cannot be separately instructedon 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 hisharm involves oppression, fraud, or malice.


3903A. Medical Expenses — Past and Future

To recover damages for past medical expenses, plaintiff must provethe reasonable cost of reasonably necessary medical care that[he/she] has received.

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

3903C. Past and Future Lost Earnings

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

To recover damages for future lost earnings, plaintiff must prove theamount of income/earnings/salary/wages [he/she] will be reasonablycertain 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 householdservices, plaintiff must prove the reasonable value of the services [he/she]would have been reasonably certain to provide to [his/her] household ifthe injury had not occurred.

3903D. Lost Earning Capacity

To recover damages for the loss of the ability to earn money as a result ofthe 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 areasonable amount based on the evidence and your common sense.

To recover for future [ physical pain/ mental suffering/ loss ofenjoyment of life/ disfigurement/ physical impairment/inconvenience/ grief/ anxiety/ humiliation/ emotional distress ],

plaintiff must prove that [he/she] is reasonably certain to sufferthat harm.

For future [ insert item of pain and suffering ], determine the amountin current dollars paid at the time of judgment that will compensate

plaintiff for future [ insert item of pain and suffering ]. This amountof noneconomic damages should not be further reduced to presentcash value because that reduction should only be performed withrespect to economic damages.

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

If you decide that defendant ‘s conduct caused plaintiff harm, you mustdecide whether that conduct justifies an award of punitive damages. The

purposes of punitive damages are to punish a wrongdoer for the conductthat 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, orfraud. To do this, plaintiff must prove one of the following by clear andconvincing evidence:

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



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defendant , who acted on behalf of defendant ; or

(2)That the conduct constituting malice, oppression, or fraud wasauthorized by one or more officers, directors, or managing agents ofdefendant ; or

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

―Malice‖ means that defendant acted with intent to cause injury or thatdefendant ‘s conduct was despicable and was done with a willful andknowing disregard of the rights or safety of another. A person acts withknowing disregard when he or she is aware of the probable dangerousconsequences of his or her conduct and deliberately fails to avoid thoseconsequences.

―Oppr ession‖ means that defendant ‘s conduct was despicable andsubjected plaintiff to cruel and unjust hardship in knowing disregard of[his/her] rights.

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

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

An employee is a ―managing agent‖ if he or she exercises substantialindependent authority and judgment in his or her corporate decisionmaking such that his or her decisions ultimately determine corporate

policy.

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

(a) How reprehensible was defendant ‘s conduct? In deciding howreprehensible defendant ‘s conduct was, you may consider, among otherfactors:

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 orvulnerable and took advantage of [him/her/it];



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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 damagesand 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 necessaryto punish [him/her/it] and discourage future wrongful conduct? You maynot increase the punitive award above an amount that is otherwiseappropriate 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.

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

The right to recover past medical expenses belongs to both the minor childand the parents. White v. Moreno Valley Unified School District (1986) 181Cal.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 someinstances. 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 thedeceased minor's estate, several items of damages survive the minor's death, andcan be recovered not by the parents as individuals, but possibly by a parent actingon behalf of the minor's estate ( e.g. , punitive damages otherwise unrecoverable ina wrongful death action, under a survival statute are recoverable if proven).


1. Financial Support: Parents can recover the value of the financialsupport, 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 thatthey could have expected to receive from the minor. Sails v. General

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



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3. Funeral and burial expenses: Parents may recover all expendituresrelated 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 oflove, companionship, comfort, affection, society, solace, moralsupport, and protection that the child could have been expected togive. Tyson v. Rome (1948) 88 Cal.2d 752, 758. Note however, thatthis 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 inwrongful death actions, Cortez v. Macias (1980) 110 Cal.App.3d 640,657, punitive damages may awardable to the decedent‘s estate in anaction by the estate representative based on the cause of action thedecedent 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 defendantfor the death of the minor, you also must decide how much money willreasonably compensate plaintiff for the death of the minor. Thiscompensation 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 calledeconomic damages and noneconomic damages. You will be asked to statethe 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 minorwould have contributed to the family during either the lifeexpectancy that the minor had before [his/her] death or the lifeexpectancy of Plaintiff, whichever is shorter;



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

(3) Funeral and burial expenses; and

(4)

The reasonable value of household services that the minorwould 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 theminor ‘s love, companionship, comfort, care, assistance, protection,affection, society, and moral support.

No fixed standard exists for deciding the amount of noneconomicdamages. You must use your judgment to decide a reasonable amount

based on the evidence and your common sense. For these noneconomicdamages, determine the amount in current dollars paid at the time of

judgment that will compensate Plaintiff for those damages. This amountof noneconomic damages should not be further reduced to present cashvalue because that reduction should only be performed with respect tofuture 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 ofthe probable costs of the minor‘s support and education.

In deciding a person‘s life expectancy, cons ider, among other factors, that person‘s health, habits, activities, lifestyle, and occupation. Lifeexpectancy tables are evidence of a person‘s life expectancy but are notconclusive. In computing these damages, consider the losses suffered byall plaintiffs and return a verdict of a single amount for all plaintiffs. I willdivide the amount among/between the plaintiffs.



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II. Noneconomic Damages

1. Noneconomic Loss or Injury : Defined as nonpecuniary harmincluding pain and suffering, inconvenience, emotional stress, andimpairment 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 recoverdamages for loss of consortium arising solely from injury to theirchild. Elgin v. Bartlett , 994 P.2d 411 (Colo. 1999).

3. Damages Cap : Pursuant to § 13-21-102.5, C.R.S, noneconomicdamages are capped at $250,000 but this amount is adjusted forinflation. 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 currentlyinflation-adjusted cap of $732,500. § 13-21-203.7(1), C.R.S. In casesinvolving more than one defendant, the cap on noneconomic damagesis applicable to the amount of noneconomic damages that a plaintiffcan recover from each defendant, rather than to the total amount ofnoneconomic damages awarded. General Elec. Co. v. Niemet , 866P.2d 1361 (Colo. 1994).

4. Damages for Impairment and Disfigurement: Damages forimpairment and disfigurement are separate from noneconomicdamages 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 thewrongful conduct is attended by circumstances of fraud, malice, orwillful 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. Itmay be asserted by amendment to the pleadings only after thesubstantial completion of discovery and only after the plaintiffestablishes prima facie proof of a triable issue. 1 Punitive damagesmust 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 casethe court may increase the award to not more than a 3:1 ratio. SeeCoors 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 healthcaremalpractice, though a plaintiff may not initially seek punitive damages in those cases either, under§ 13-64-302.5, C.R.S.



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


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

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

In determining such damages, you shall consider the following:

1. Any noneconomic losses or injuries which plaintiff has had tothe 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 otherrecoverable nonecomonic losses for which there is sufficient evidence).(In considering damages in this category, you shall not include actualdamages for [physical impairment] [or] [disfigurement], because thesedamages, if any, are to be included in a separate category.)

2. Any economic losses or injuries which plaintiff will probablyhave in the future after (he) (she) reaches the age of 18 (or is otherwise

emancipated), including: loss or damage to (his) (her) ability to earnmoney in the future, any (reasonable and necessary) medical, hospital, andother expenses the plaintiff, as a minor, has paid for (or for which [he][she] is personally responsible), and (insert any other recoverableeconomic losses of which there is sufficient evidence). (In consideringdamages 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 consideringdamages in this category, you shall not include damages again for lossesor injuries already determined under either numbered paragraph 1 or 2above.)

(In determining the plaintiff's, (name of minor child), damages you shouldnot 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



48

damages, if any, are recoverable by the plaintiff's parents.) (For the samereason, 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’ DamagesColorado 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] ofdefendant[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 thedefendant(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 designatednonparties).


1. Any (reasonable and necessary) expenses the plaintiff(s) (has)(have) had on (name of minor child)'s behalf to the present time and anyexpenses 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 (oris emancipated) for (insert appropriate description, using separatelylettered 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 tothe 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 andthe time when (name of minor child) reaches the age of 18 (or isemancipated);

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

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



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c. Personal Injuries – Minor Child – Loss of Earnings – DistinctionBetween Parents’ and Child’s Claims Colorado Jury Instructions 6:4

Earnings of a minor child before emancipation belong to the parents.Earnings after emancipation or after reaching the age of 18 belong to thechild.


Parents may pursue their own claims to recover for medical expensesincurred 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 bringsan action as the next friend of the minor is not necessarily evidence that the parentreleased 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 an d turns upon the right of the injured person to recover, but that the statute tolling the limitations for a minor‘s actiondid 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 forthe death of a minor child, in addition to funeral expenses. ―Net pecuniary loss‖ includes the parent‘s loss of the services and earningsthat they could have reasonably expected from their child during his orher minority, but for the untimely death, less their expenditures formaintenance, in addition to the loss of services and support that theycould reasonably have anticipated when their child was an adult andthey 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 Actallows a ―maximum‖ recovery of up to $250,000 for noneconomicdamages (e.g., grief), § 13-21-203(1), C.R.S., although that amount isadjusted for inflation. As of January 2012, the inflation-adjusted capis $341,250. See § 13-21-203.7, C.R.S. Importantly, that $250,000cap applies on a collective and not an individual basis, and is the mostthat 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 conductcausing 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 aconviction was or could have been obtained and, instead, may showthat the conduct in question constitutes the statutory elements of a

"felonious killing." Estate of Wright v. United Servs. Auto. Ass'n , 53P.3d 683 (Colo.App. 2001), cert. denied (2002).

In lieu of establishing noneconomic damages, those persons entitled tosue 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 forinflation, and as of January 2012, the number is $68,500. A party thatseeks only solatium recovery and proves any liability on thedefendant‘s part, recovers the entire amount for solatium, because thisrecovery is exempt from any reduction by virtue of the comparative-negligence statute, B.G.’s, Inc. v. Gross , 23 P.3d 691 (Colo. 2001), orany liability allocable to a nonparty tortfeasor, Smith v. Vincent , 77P.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 toamend the complaint must wait until at least 60 days following theexchange of initial disclosures, and there must be ―prima facie proof ofa triable issue.‖ P unitive damages may be imposed at 1:1 ratio toactual damages, though the court may increase the award to not morethan a 3:1 ratio. The court may reduce the award if the deterrent effecthas been accomplished, the subject conduct has ceased, or the purposeof such damages has otherwise been served. The award may be

increased if the subject conduct has continued or the defendant actedin a willful and wanton manner while the action was pending.

II. Model Jury Instruction

a. Damages for Wrongful Death. Colorado Jury Instructions 10:3

Plaintiff, (name), has the burden of proving, by a preponderance of theevidence, the nature and extent of (his) (her) damages (and the damages ofthose the plaintiff represents). If you find in favor of the plaintiff, youmust determine the total dollar amount of the damages, if any, of plaintiff(and those that plaintiff represents), that were caused by the (insertappropriate 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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CONNECTICUTJonathan CiottoneAngelina IoannouCheryl A. Possenti

Goldberg Segalla LLPHartford, 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 reasonableand necessary medical care, rehabilitative services, custodial care andlost earnings and loss of future earnings capacity. Connecticut GeneralStatute §52-572h

2. Parents’ Expense s. The parent has a right to file an independentaction 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 collateralsource 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 collateralsource 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 andemotional suffering, along with the loss of the ability to enjoy life‘s

pleasures.

2. Fear of Risk of Complications. Fear of increased risk of futuremedical 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 inmotor vehicle claims, allow for recovery of double or triple damages.Conn. Gen. Stat. § 14-295


a. Civil Jury Instruction 3.4-1 Damages – General

The rule of damages is as follows. Insofar as money can do it, the plaintiffis to receive fair, just and reasonable compensation for all injuries andlosses, past and future, which are proximately caused by the defendant's

proven negligence. Under this rule, the purpose of an award of damages isnot to punish or penalize the defendant for (his/her) negligence, but tocompensate the plaintiff for (his/her) resulting injuries and losses. Youmust attempt to put the plaintiff in the same position, as far as money cando it, that (he/she) would have been in had the defendant not beennegligent.

Our laws impose certain rules to govern the award of damages in any casewhere liability is proven. Just as the plaintiff has the burden of provingliability by a fair preponderance of the evidence, (he/she) has the burdenof proving (his/her) entitlement to recover damages by a fair

preponderance of the evidence. To that end, the plaintiff must prove boththe 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 orspeculate as to the nature or extent of the plaintiff‘s losses or injuries.

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



54

in the future as a proximate result of the defendant's negligence. Negligence, as I previously instructed you, is a proximate cause of a lossor 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 isfair, just and reasonable compensation for those injuries and losses. Thereis often no mathematical formula in making this determination. Instead,you must use human experience and apply sound common sense indetermining the amount of your verdict.

In a personal injury action, there are two general types of damages withwhich you must be concerned: economic and noneconomic damages.Economic damages are monies awarded as compensation for monetarylosses and expenses which the plaintiff has incurred, or is reasonablylikely to incur in the future, as a result of the defendant's negligence. Theyare awarded for such things as the cost of reasonable and necessary

medical care and lost earnings. Noneconomic damages are moniesawarded as compensation for non-monetary losses and injuries which the

plaintiff has suffered, or is reasonably likely to suffer in the future, as aresult of the defendant's negligence. They are awarded for such things as

physical pain and suffering, mental and emotional pain and suffering, andloss of diminution of the ability to enjoy life's pleasures.

I will now instruct you more particularly on economic damages. In thiscase, the plaintiff seeks to recover economic damages for each of thefollowing types of monetary losses or expenses: <Here list each type ofmonetary loss or expense for which the plaintiff seeks, and the evidence

potentially supports, an award of economic damages. Then, proceed toinstruct on each such claim under the appropriate paragraph(s) below. >

The plaintiff is entitled to recover the reasonable value of medical care andexpenses incurred for the treatment of injuries sustained as a result of thedefendant's negligence. The plaintiff must prove that the expenses(he/she) claims were reasonably necessary and proximately caused by thedefendant's negligence.

The plaintiff is also entitled to recover any loss of earnings or earningcapacity that (he/she) proves to have been proximately caused by thedefendant's negligence. With respect to lost earnings up to the presenttime, the plaintiff must prove that the defendant's negligence has

prevented (him/her) from receiving the earnings for which (he/she) seekscompensation. (He/She) must do so by establishing a reasonable

probability that (his/her) injury brought about a loss of earnings. Theevidence must establish a basis for a reasonable estimate of that loss.



55

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 seeksto recover noneconomic damages for each of the following types of non-monetary losses or injuries: <Here list each type of non-monetary loss orinjury 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 becompensated for all physical pain and suffering, mental and emotionalsuffering, loss of the ability to enjoy life's pleasures, and permanentimpairment 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 forsuch injuries and their consequences, you must award a fair, just, andreasonable sum. You simply have to use your own good judgment inawarding damages in this category. You should consider the nature andduration of any pain and suffering that you find.

A plaintiff who is injured by the negligence of another is entitled to becompensated for mental suffering caused by the defendant's negligence forthe 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 thiscase, the length of time the plaintiff was, or will probably be, disabledfrom 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 isentitled 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) isreasonably expected to endure its negative consequences. <Here it may beappropriate to instruct the jury as to the use of any evidence of lifeexpectancy 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 thoseinjuries and losses are more serious than they otherwise would have been

because of a pre-existing condition. You may not compensate the plaintifffor the pre-existing injury itself. However, the aggravation of such an



56

injury, proximately caused by the defendant's negligence, is a proper itemof 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 thetrier of fact, may award double or treble (triple) damages if the plaintiffhas proved that the defendant has:

1. deliberately or with reckless disregard, operated a motor vehiclein violation of statute < insert appropriate statute and describeelements, 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 recklessdisregard involves conduct that is more than negligence. It is conduct thatindicates a reckless disregard of the just rights or safety of others or of theconsequences of the action. It is conduct that tends to take on the aspectof highly unreasonable conduct, involving an extreme departure fromordinary 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, justand reasonable damages that you award by either two or three. You arenot obliged to do so but you may do so. That is solely within yourdiscretion.

c. Civil Jury Instruction 3.4-6 Damages - Compensation forIncreased 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 resultingfrom a failure to exercise reasonable care. If the failure to exercisereasonable care increases the risk that such harm will occur in the future,the plaintiff is entitled to compensation for the increased risk. In order toaward this element of damages, you must find a breach of duty that was asubstantial factor in causing a present injury which has resulted in anincreased risk of future harm. The increased risk must have a basis in theevidence. Your verdict may not be based on speculation. The plaintiff isentitled to compensation to the extent that the future harm is likely tooccur as measured by multiplying the total compensation to which the

plaintiff would be entitled if the harm in question were certain to occur bythe 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 (orMinimize)

You should also consider what efforts the plaintiff took to minimize theeffects of (his/her) injury. One who has been injured by the negligence ofanother must use reasonable care, such as following doctor‘s instructionsregarding the treatment of (his/her) injuries, to promote recovery and

prevent any aggravation or increase of the injury. The plaintiff is notentitled to be compensated for any injury or aggravation of injury caused

by (his/her) failure to minimize damages. Thus, you should reduce thedamages awarded to the plaintiff to the extent you find that the plaintiffmade (his/her) condition worse by not taking reasonable care to promote(his/her) recovery or prevent any aggravation or increase of the injury. It isthe defendant‘s burden to prove by a preponderance of the evidence thatthe plaintiff has failed to minimize (his/her) damages.


Conn. Gen. Stat. § 52-555 is the sole basis to bring a claim for wrongfuldeath. 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.2d675 (1970); Tulin v. Tulin , 124 Conn. 518, 522, 200 A. 819 (1938).


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

2. Funeral Costs. Also allowed are funeral expenses and any otherreasonable or necessary expenses incurred as a result of the death suchas 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. , 144Conn. 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 thedecedent's lost earning capacity less deductions for (his/her) necessaryliving expenses taking into consideration that a present cash paymentwill be made. Carrano v. Yale-New Haven Hospital , 279 Conn. 622,651 (2006). "Personal living expenses" do not include recreational



58

expenses, nor that proportion of living expenses properly allocable tothe furnishing of food and shelter to members of the decedent's familyother 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, 196Conn. 134 (1985).

III. Jury Instructions :

In addition to the model jury instructions above, these apply as towrongful 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 treatmentof injuries sustained by the decedent as a result of the defendant'snegligence. The plaintiff must prove that the expenses (he/she) claimswere reasonably necessary and legally caused by the defendant'snegligence.

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, weaddress 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 ofdecedent> 's earning capacity over (his/her) probable lifetime, it is properfor you to consider the salary or wages (Mr./Ms.) <name of decedent> had been earning before the injury which caused (his/her) death. This isnot 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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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 .>



61

DELAWAREChristopher ViceconteStephen J. Finley, Jr.

Gibbons P.C.Wilmington, Delaware

(302) 295-4875


I. Economic Damages

1. Medical Expenses. Medical expenses and other related costs, actuallyincurred, resulting from a defendant‘s liability -producing conduct arerecoverable. A minor-plaintiff may also recover estimated futuremedical expenses upon a showing of a reasonable probability that suchexpenditures will be necessary. Expert testimony is typically requiredto establish the amount of estimated future medical expenses andrelated costs. See Weiner v. Wisniewski , 213 A.2d 857 (Del. 1965).An award of future medical expenses should be reduced to its presentvalue. 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 ismore likely to be an issue in a case involving a minor, loss of futureearning capacity, is a recoverable element of damages in a minor-

plaintiff‘s personal injury action. In order to prove a claim for loss offuture earning capacity, a plaintiff must present sufficient evidence asto the ―reasonable probability‖ that his or her future earnings will bediminished because of an injury. See Henne v. Balick , 146 A.2d 394(Del. Super. Ct. 1958). Expert testimony is required to support such aclaim. See Jardel Co. v. Hughes , 523 A.2d 518 (Del. 1987). Theimpact of income taxes, deemed too speculative, should not beconsidered in determining an award for lost future earnings. SeeGushen v. Penn Central Transp. Co. , 280 A.2d 708 (Del. 1971). Anaward 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 thatwould reasonably compensate him or her for any past and future painand suffering incurred by reason of the injuries sustained. There must

be a reasonable probability that the pain and suffering was or will becaused by the injuries. Pain and suffering damages may includemental as well as physical suffering, and are to be determined based



62

upon the particular facts of each case. See Prettyman v. Topkis , 3 A.2d708 (Del. Super. Ct. 1938).

2. Compensation for Permanent Nature of Injury. A minor plaintiffmay recover damages for limitations relating to the permanent natureof the claimed injury. A plaintiff seeking such damages must show areasonable probability of the permanence of the injury. See Laskowskiv. Wallis , 205 A.2d 825 (Del. 1964). In assessing these damages, a

jury may consider the life expectancy of the plaintiff, as well as theactivities which the impairment impedes or prevents. See, e.g., Winterv. Pennsylvania R. Co. , 68 A.2d 513 (Del. Super. Ct. 1949).

3. Punitive Damages. Punitive damages are recoverable in personalinjury actions where a tortfeasor‘s conduct is dete rmined to beintentional, reckless, wanton, willful or undertaken with a disregard forthe 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 ofcompensatory damages is a predicate to a punitive damages award,and such an award should be reasonably proportionate to the amountof compensatory damages awarded. See Stephenson v. Capano Dev.,

Inc. , 462 A.2d 1069 (Del. 1983). Evidence relating to a defendant‘sfinancial 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 towhich [ he/she ] is entitled.

The purpose of a damages award in a civil lawsuit is just and reasonablecompensation for the harm or injury done. Certain guiding principlesmust 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 areasonable probability that an injury exists. While pain and suffering are

proper elements on which to determine monetary damages, the damagesfor pain and suffering must be fair and reasonably determined and may not

be determined by a fanciful or sentimental standard. They must bedetermined from a conclusion about how long the suffering lasted, thedegree of suffering, and the nature of the injury causing the suffering.



63

If you find for [ plaintiff 's name ], you should award to [ him/her ] the sumof money that in your judgment will fairly and reasonably compensate[him/her ] for the following elements of damages that you find to exist bya preponderance of the evidence:

(1) compensation for pain and suffering that [ he/she ] hassuffered 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 medicalexpenses incurred to date;

(5) compensation for reasonable and necessary medicalexpenses that it is reasonably probable that [ plaintiff'sname ] 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 thefuture.

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 accompanyany deprivation of usual pleasurable activities and enjoyments.

In evaluating impairment or disability, you may consider all the activitiesthat [ plaintiff ' s name ] used to engage in, including those activities forwork and pleasure, and you may consider to what extent these activitieshave been impaired because of the injury and to what extent they willcontinue 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 alife expectancy of ___ years.]

The law does not prescribe any definite standard by which to compensatean injured person for pain and suffering or impairment, nor does it requirethat 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 tocompensate [ 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



64

earnings and long-term pain and suffering. In such circumstances, it maybe necessary to emphasize that the jury use its common sense and do thebest it can with criteria enumerated in Jury Instr. No. 21.1. A specialinstruction, however, should not be necessary .}

c. Punitive Damages. DPJI 22.27.

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

Punitive damages are different from compensatory damages.Compensatory damages are awarded to compensate the plaintiff for theinjury suffered. Punitive damages, on the other hand, are awarded inaddition to compensatory damages.

You may award punitive damages to punish a party for outrageousconduct and to deter a party, and others like [ him/her/it ], from engaging insimilar 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 mereinadvertence, mistake, errors of judgment and the like, which constituteordinary negligence.

Intentional conduct means it is the person‘s conscious object to engage inconduct of that nature. Reckless conduct is a conscious indifference thatamounts to an "I don't care" attitude. Reckless conduct occurs when a

person, with no intent to cause harm, performs an act so unreasonable anddangerous that [ he/she/it ] knows or should know that there is an eminentlikelihood of harm that can result. Each requires that the defendantforesee 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 thenature of [ defendant’s name ]‘s conduct and the degree to which theconduct was reprehensible. Finally, you may assess an amount ofdamages that will deter [ defendant' s name ] and others like [ him/her/it ]from similar conduct in the future. You may consider [ defendant'sname ]'s financial condition when evaluating deterrence. Any award of

punitive damages must bear a reasonable relationship to [ plaintiff'sname ]'s compensatory damages. If you find that [ plaintiff ' s name ] isentitled to an award of punitive damages, state the amount of punitivedamages separately on the verdict form.

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



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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 inassessing 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 aresult 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 Acti on

A survival action allows the executor or administrator of the decedent‘sestate 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

1. Medical Expenses. As in the case of a personal injury action,medical expenses and other related costs, actually incurred, fromthe date of the injury until the date of death, resulting from adefendant‘s liability -producing conduct are recoverable in asurvival 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, lostearnings from the time of injury to the time of death is arecoverable element of damages in a survival action.

B. Non-Economic Damages

1. Pain and Suffering. A decedent‘s conscious pain and sufferingfrom the time of injury until death is a proper element of recoveryin a survival action. It is the plaintiff‘s burden to prove, by a

preponderance of the evidence, an appreciable interval ofconscious pain and suffering after the time of injury and beforedeath. 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 thehedonic value of the portion of the decedent‘s life extinguished bythe defendant‘s tortious conduct are not recoverable in a survivalaction. However, a plaintiff may offer evidence of the hedonicvalue of the decedent‘s life to t he extent relevant to a measure ofthe decedent‘s pain and suffering in the time between the injury



66

and death. See Sterner v. Wesley College, Inc. , 747 F. Supp. 263(D. Del. 1990).

2. Physical Impairment. Compensation may be awarded for physical impairme nt resulting from a defendant‘s tortious conductfor 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).

3. Punitive Damages. Punitive damages are available in a survivalaction (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, punitivedamages are not available where there is no award ofcompensatory damages for a decedent‘s conscious pain andsuffering. 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 forthe benefit of the spouse, parent, child and siblings of the deceased person. 10Del. C. §3724. In determining the amount of damages to be awarded, ―the courtor jury shall consider all the facts and circumstances and from them fix the awardat suc h sum as will fairly compensate for the injury resulting from the death.‖ 10Del. C. §3724(d).

A. Economic Damages

1. Loss of Pecuniary Benefits. Damages are recoverable for the beneficiaries‘ ―deprivation of the expectation of pecuniary benefitsto the beneficiary or beneficiaries that would have resulted fromthe continued life of the deceased.‖ 10 Del. C. §3724(d)(1). Thisis measured as the portion of the decedent‘s likely earnings duringhis or her lifetime that would have been left as an estate and whichwould 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 thewrongful death of a child of tender years is the jury‘s estimate ofthe 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. Thissea of pure conjecture may be otherwise described as the jury‘sestimate of the present money value of the child‘s life to theestimated prospective estate of the chil d.‖ 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 consequencesshould not be considered by the jury is assessing this element of



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wrongful death damages. See High v. State Highway Dep’t , 307A.2d 799 (Del. 1973).

2. Loss of Support. Damages are recoverable for the beneficiaries‘―loss of contributions for support‖ that would have resulted fromthe continued life of the deceased. 10 Del. C. §3724(d)(2).

3. Loss of parental, marital and household services, including thereasonable cost of providing for the care of minor children. 10Del. C. §3724(d)(3).

4. Reasonable funeral expenses. Reasonable funeral expenses notto exceed $7,000, or the amount designated in § 5546(a) of Title29 , 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), damagesfor mental anguish resulting from the decedent‘s death to thesurviving spouse and next of kin of such deceased person areavailable. However, when mental anguish is claimed as a measureof damages, such claim ―will be applicable only to the survivingspouse, children and persons to whom the deceased stood in loco

parentis at the time of the injury which caused the death of thedeceased, parents and persons standing in loco parentis to thedeceased at the time of the injury which caused the death of thedeceased (if there is no surviving spouse, children or persons towhom the deceased stood in loco parentis ), and siblings (if there is

no surviving spouse, children, persons to whom the deceased stoodin loco parentis at the time of the injury, parents or personsstanding in loco parentis to the deceased at the time of the injurywhich cause d the death of the deceased).‖ A claimant may

potentially recover damages for his or her mental anguish withouta showing of physical injury. See Spencer v. Goodill , 2009 Del.Super. LEXIS 425 (Del. Super. Nov. 13, 2009). Hedonic damagesare not available in a wrongful death action, and evidence of thehedonic value of the decedent‘s life is inadmissible as either adistinct 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 awrongful death action. Reynolds v. Willis , 209 A.2d 760 (Del.1965).



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III. Pattern Jury Instructions

a. Measure of Damages - Wrongful Death. DPJI 22.8.

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

(1) the loss of the expectation of monetary benefits that wouldhave resulted from the continued life of [ decedent’s name ]; that is, theexpectation of inheritance that [ name of fami ly beneficiari es ] have lost;

(2) the loss of the portion of [ decedent’s name ]‘s earnings andincome that probably would have been used for the support of [ names offamil y benefi ciaries ];

(3) the loss of [ deced ent’s name ]‘s parental, marital, andhousehold services, including the reasonable cost of providing for the careof minor children;

(4) the reasonable cost of funeral expenses, not to exceed$7000; and

(5) the mental anguish suffered by [ names of eligi ble famil ybeneficiaries ] as a result of [ decedent’s name ]‘s death.

The term ―mental anguish‖ encompasses the grieving process associatedwith the loss of a loved one. You may consider that the grieving process,accompanied by its physical and emotional upheaval, will be experienceddifferently 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 fairand adequate award through the exercise of your judgment and experienceafter 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 ] notrequired to claim and prove with mathematical precision exact sums ofmoney representing their damages for mental anguish. It is required only



69

that [ plaintiff’s name ] furnish enough evidence so that you, the jury, canmake a reasonable determination of those damages.



70

FLORIDAH. Hamilton Rice, III

Courtney L. RiceBush Graziano & Rice, P.A.

Tampa, Florida

(813) 228-7000



1. Property Damages . Property damages are recoverable.

2. Medical Expenses and other Pecuniary Losses . Medical expensesincurred as a result of such wrongful or negligent act or omission arerecoverable. 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 futureeconomic 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 andLoss of Capacity for the Enjoyment of Life. This recovery right

belongs to the minor. Florida courts have specifically held that there isno recovery by a parent in a personal injury action for the suffering,

pain, embarrassment and/or humiliation caused the parent by injuriesof 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 firstrecognized the right of the parent of an injured child to recover for

permanent loss of filial consortium in United States v. Dempsey , 635So.2d 961 (Fla. 1994), which is separate from the common law right torecover loss of support and services. This cause of action only existswhere there is loss of filial consortium ―as a result of a significant



71

injury resulting in the child‘s permanent total disability.‖ Id. at 965.The Florida Supreme Court defined ―consortium‖ to include ―the lossof companionship, society, love, affection, and solace of the injuredchild, as well as ordinary day-to-day services that the child would haverender ed.‖ 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 , 800So.2d 213 (Fla. 2001)

3. Punitive Damages . § 768.72, Fla. Stat. (2011). In Florida, before aclaim for punitive damages can be asserted in a pleading, there must

be a ―reasonable showing by evidence in the record or proffered by theclaimant which would provide a reasonable basis for recovery of suchdamages .‖ § 768.72(1), Fla. Stat. Punitive damages are permissibleonly where the trier of fact, based on clear and convincing evidence,

finds that the defendant was personally guilty of intentionalmisconduct or gross negligence. § 768.72, Fla. Stat. (2011)―Intentional misconduct‖ is defined so as to require actual knowledgeof the wrongfulness of the conduct and knowledge of the highlikelihood of harm as a result of the conduct. There is a higherstandard for imposing punitive damages on an employer, principal oran entity. A finding of intentional misconduct or gross negligence byan individual must be made, as well as a finding by the trier of fact thatthe employer/principal/entity actively participated in the conduct,ratified/condoned/consented to the conduct, or that theemployer/principal/entity itself engaged in conduct that was grosslynegligent and contributed to the claimant‘s injury. § 768.72(3), Fla.Stat. (2011). A greater weight of the evidence standard applies to theaward of damages, while the clear and convincing evidence standardapplies to the issue of entitlement to punitive damage . § 768.725, Fla.Stat. (2011).


Negligence – General Instruction – Personal Injury. Florida SupremeCourt 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 anamount of money that the greater weight of the evidence shows will fairlyand 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:



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a. Any bodily injury sustained by Plaintiff and any resulting painand suffering, disability or physical impairment, disfigurement,mental anguish, inconvenience, or loss of capacity for theenjoyment of life experienced in the past or to be experiencedin the future. There is no exact standard for measuring such

damage. The amount should be fair and just in the light of theevidence.b. The reasonable value or expense of hospitalization and medical

and nursing care and treatment necessarily or reasonablyobtained by (claimant) in the past or to be so obtained in thefuture.

c. The reasonable value or expense of hospitalization and medicaland nursing care and treatment necessarily or reasonably to beobtained 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 aguardian 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 toassert independent, individual claims to recover loss of support and services oftheir minor child through the age of majority, as well as medical expenses ―ineffecting a cure‖ through the age of majority. See, L.H. Youngblood v. Taylor, 89So.2d 503 (Fla. 1956); See also , Wilkie, 109 So. at 227 (Fla. 1926). However, theright to recover future medical expenses past the age of majority belongs to theminor. 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 madethat the minor child will be unable to support himself, due to mental or physicaldeficiency, past the age of majority. Id. at 289.


In Florida, the Florida Wrongful Death Act sets out the damagesrecoverable in a wrongful death action. See, § 766.16, et seq . A ―survivor‖ of adeceased 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 definedwithin the statute as ―children under 25 years of age.‖ Fla. Stat. § 768.18. AFlorida wrongful death action, however, must be brought by the personalrepresentative of the deceden t‘s estate, who shall recover damages for thedecedent‘s ―survivors‖ and the estate. Fla. Stat. § 768.20.



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Notably, the Florida Supreme Court has not yet recognized the right of asurviving parent to recover for the wrongful death of a stillborn child under theWrongful Death Act, as that stillborn child is not considered a ―person‖ within themeaning of the Act. Tanner v. Hartog , 696 So.2d 705, 706 (Fla. 1997). [TheCourt 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 ofa stillborn fetus. Tanner , 696 So.2d at 708.] On the other hand, if a fetussurvives after birth and subsequently dies, there is a right of action under theWrongful Death Ac t. In essence, a showing must be made of existence ―separateand independent from the mother‖ after birth before recovery under the WrongfulDeath Act is permitted. See Duncan v. Flynn , 358 So.2d 178 (Fla. 1978)


1. Medical and Funeral Expenses . Funeral and medical expenses due tothe 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 beha lfof 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 andServices . These damages are recoverable by each survivor. Factors to

be considered with respect to a loss of support and services award arethe survivor‘s relationship to the decedent, the amount of thedecedent‘s probable net income available for distribution to thesurvivor 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 exceedthe 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 theminor child‘s death, the parent who actually supported the minor child(without regard to any court order) has the right to recover for loss ofsupport 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 childcan recover damages for mental pain and suffering from the date ofinjury. See § 768.21(4), Fla. Stat.



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2. Punitive Damages . § 768.72, Fla. Stat. (2011). In Florida, before aclaim for punitive damages can be asserted in a pleading, there must

be a ―reasonable showing by evidence in the record or proffered by theclaimant which would provide a reasonable basis for recovery of such

damages .‖ § 768.72(1), Fla. Stat. Punitive damages are permissibleonly where the trier of fact, based on clear and convincing evidence,finds that the defendant was personally guilty of intentionalmisconduct or gross negligence. § 768.72, Fla. Stat. (2011)―Intentional misconduct‖ is defined so as to require actual knowledgeof the wrongfulness of the conduct and knowledge of the highlikelihood of harm as a result of the conduct. There is a higherstandard for imposing punitive damages on an employer, principal oran entity. A finding of intentional misconduct or gross negligence byan individual must be made, as well as a finding that theemployer/principal/entity actively participated in the conduct,

ratified/condoned/consented to the conduct, or that theemployer/principal/entity itself engaged in conduct that was grosslynegligent and contributed to the claimant‘s injury. § 768.72(3), Fla.Stat. (2011). A greater weight of the evidence standard applies to theaward of damages, while the clear and convincing evidence standardapplies 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 thematter of damages. But, if your verdict is for Personalrepresentative, you should award decedent‘s personalrepresentative an amount of money that the greater weightof the evidence shows will fairly and adequatelycompensate decedent‘s estate and decedent‘s survivors fortheir damages, including any damages that the estate andthe survivors are reasonably certain to incur or experiencein the future.

Damages for Estate

In determining the damages recoverable on behalf of(decedent‘s) estate, you shall consider the followingelements:



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a. Lost earnings:

The estate‘s loss of earnings of decedent from the date ofinjury to the date of death, less any amount of monetarysupport you determine a survivor lost during that period.

b. Lost accumulations:

The estate‘s loss of net accumulations: ―Netaccumulations‖ is the part of decedent‘s net income [fromsalary or business] after taxes, including pension benefits[but excluding income from investments continuing beyonddeath], which decedent, after paying his personal expensesand monies for the support of his/her survivors, would haveleft as part of his/her estate if he/she had lived a normal lifeexpectancy.

c. Medical or funeral expenses:

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

Damages for Surviving Parents

In determining any damages to be awarded decedent‘s personalrepresentative for the benefit of decede nt‘s surviving parent(s), you shallconsider certain additional elements of damage for which there is no exact

standard for fixing the compensation to be awarded. Any such awardshould be fair and just in the light of the evidence regarding the followingelements:

a. Mental Pain and Suffering of Parents

The mental pain and suffering of [parent(s)] as a result ofthe injury and death of (child). In determining the durationof mental pain and suffering, you may consider the lifeexpectancies of the surviving parent(s) together with theother evidence in the case.

b. Lost Support and Services

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



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

In evaluating past and future loss of support and services,you shall consider the survi vor‘s relationship to d ecedent,the amount of decedent‘s probable net income available fordistribution 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 ordeath paid by any survivor.



77

GEORGIA Charles L. Clay, Jr.Brannon J. Arnold

Weinberg, Wheeler, Hudgins, Gunn & Dial, LLCAtlanta, Georgia

(404) 876-2700


I. Economic/Special Damages:

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

1. Medical and Other Related Expenses. To recover past medicalexpenses in a personal injury action, a plaintiff must prove that suchexpenses arose from the injury sustained and were reasonable and

necessary. Barnes v. Cornett , 134 Ga. App. 120, 120-21, 213 S.E.2d703, 705 (1975); see also O.C.G.A. §51-12-7 (providing that a

plaintiff can recover for ―necessary expenses consequent upon aninjury‖). The plaintiff has the burden of proving the amount he isentitled 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 fromintroducing 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 medicalexpenses prior to judgment, the defendant is entitled to a set-offagainst those payments in order to prevent double recovery. Link andHertz, Georgia Law of Damages, § 13:3 (2009).

2. Future Medical and Other Related Expenses . In order to recoverfuture medical expenses, a plaintiff must prove both that the injury willrequire future medical attention and that the amount of medicalexpenses incurred can be proven with reasonable certainty. Bennett v.

Haley , 132 Ga. App. 512, 514-15, 208 S.E.2d 302, 306 (1974). Anyrecovery for future medical expenses must be reduced to present cashvalue. Hughes v. Brown , 109 Ga. App. 578, 136 S.E.2d 403 (1964).―Under Georgia law, it is conclusively presumed that an award ofcompensation 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



78

present value of any future earnings, annuity, or amounts, to reduce thesame 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 hasestablished that a five percent figure shall be used for reduction of

future expenses to present values‖). "The award must therefore bediscounted to reflect such interest." Id. However, because a plaintiff‘seconomist‘s will usually opine that the cost of medical expenses risemore than average inflation, there is usually little or no discountobtained for future medical expenses.

3. Loss of Earnings or Earning Capacity. An injured plaintiff mayrecover for diminished capacity to labor, lost earning capacity and/orloss 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 theamount. 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 evidencetending to show what the plaintiff was capable of earning both beforeand after the injury. Dept. of Human Resources v. Thomas , 217 Ga.App. 174, 178-79, 456 S.E.2d 724, 727 (1995). Recovery for theseparately recognized claim of ―loss of future earnings‖ is permittedwhere there is proof of loss of definite earnings that would have beenreceived 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 enlightenedconscience of fair and impartial jurors. City Council of Augusta v.

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

II. Non-Economic/General Damages:

General damages are those which the law presumes to flow from anytortious act. O.C.G.A. § 51-12-2. These damages may be recovered without

proof of any specific amount of damages. Id .

1. Pain and Suffering. An injured party can recover for pain andsuffering 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 questionanswered , 248 Ga. 18, 280 S.E.2d 345 (1981). Pain and suffering is ageneric name for several types of damages, including: mental and

physical pain and suffering; past anxiety or worry proximately



79

attributable to an injury; mental distress caused by impairment of theenjoyment of life; disfigurement and deformity; and loss of earningcapacity. Id . The measure of damage in such cases is the enlightenedconscience 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

subjectiv e standard and plaintiff‘s attorneys will often play on theemotions of the jury in order to inflate recovery of these damages.Future pain and suffering damages are not reduced to net presentvalue. Chancey v. Shirah , 96 Ga. App. 91, 99 S.E.2d 365 (1957).

2. Punitive Damages. An award of actual or compensatory damages isnecessary to support an award of punitive damages. Weprin v.

Peterson , 736 F. Supp. 1131, 1132 (N.D. Ga. 1988). Punitivedamages may be awarded only in tort actions in which it is proven byclear and convincing evidence that the defendant‘s actions showedwillful misconduct, malice, fraud, wantonness, oppression, or that

entire want of acre which would raise the presumption of consciousindifference to consequences. O.C.G.A. §51-12-5.1(b). For anyaction not involving product liability ( see O.C.G.A. §51-12-5.1(e)), ora 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 beawarded 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 canonly 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 aggravationof a preexisting mental illness. Underwood v. Atlanta & West Point

Railroad Co. , 105 Ga. App. 340, 124 S.E.2d 758 (1962). A mentalinjury is considered a physical injury. Nationwide Mutual Fire Ins.Co. v. Lam , 248 Ga. App. 134, 546 S.E.2d 283 (2001). A plaintiffmay 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 ofemotional 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). Georgiarejects the ―zone of danger‖ rule, which allows recovery for emotionaldistress by one who only witnesses an injury to another person. Burchv. Uokuni International, Inc. , 192 Ga. App. 861, 386 S.E.2d 889(1989).



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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 thatthe damages awarded are fair to both parties. If you believe from a

preponderance of the evidence that the Plaintiff is entitled to recover, youshould 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 mitigatehis damages as far as is practicable by the use of ordinary care anddiligence. 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 ofsuch care, the Plaintiff could have reduced the damages, you woulddetermine to what extent and reduce such damages to that extent.‖

Suggested Pattern Jury Instruction, Vol. 1: Civil Cases, 5 th ed. (2007),Charge 66.040.

"In all cases, necessary expenses resulting from the injury are a legitimateitem of damages. As to medical expenses, such as hospital, doctor, andmedicine 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 theenlightened conscience of fair and impartial jurors. Questions of whether,how much, and how long the plaintiff has suffered or will suffer are foryou 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. DublinCoca-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 MedicalCenter, Inc. , 184 Ga. App. 182, 361 S.E.2d 1 (1987)). The tolling provision for



81

minors under O.C.G.A. §9-3-90 does not apply, and thus, the claim is subject tothe two-year statute of limitations for personal injury actions. Id . at 184, 361S.E.2d at 2. A parent can properly maintain an action to recover the medicalexpenses incurred during the child‘s minority even after the child turns eighteenso 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 ownname 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 achild, 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 rationalefor Georgia‘s ―full value of the life‖ standard is to impose a civil penalty to deterhomicides. Roescher v. Lehigh Acres Development, Inc. , 125 Ga. App. 565, 408S.E.2d 818 (1991).

A. The Right to Bring a Wrongful Death Claim

The surviving parents, including adoptive parents, have the right to bring awrongful death claim for the death of a child in the event that the deceased childdoes 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 aredivorced, 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 theevent that the parents are not married or are living separately and one parent eithercannot be located or refuses to proceed, then the other parent has the right tocontract 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 hasnot been paid to the absent parent, the other parent can petition the court for thefunds. 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 administratoror executor of the deceased child may bring a wrongful death claim for the benefitof the next of kin. O.C.G.A. § 51-4-5. The fact that the child was born out ofwedlock does not bar recovery. O.C.G.A. § 19-7-1(5).



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B. Damages Recoverable in a Wrongful Death Action: Full Valueof the Life of the Decedent.

O.C.G.A. §51-4- 1(1) states that the ―‗[f]ull value of the life of thedecedent, as shown by the evidence‘ means the full value of the life of thedecedent without deduction for necessary or other personal expenses of thedeceased had the deceased lived.‖ The full value of the life of the decedentconsists of two elements – 1) the economic value of the deceased‘s normal lifeexpectancy as determined by his expected lifetime earnings, and 2) an ―intangibleelement incapable of exact proof‖ such as a person‘s society, advice, example andcounsel. Dept. of Human Resources v. Johnson , 264 Ga. App. 730, 738, 592S.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). Dependencyand economic loss to the beneficiary are not part of Georgia‘s wrongful deathelements because damages under Georgia‘s wrongful death statute are measuredfrom 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 bythe enlightened conscience of an impartial jury as applied to the evidence in thecase, including testimony as to such child‘s age, life expectancy, precocity, health,mental and physical development, family circumstances, and from the experienceand 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 wrongfuldeath action as pa rt of the full value of the decedent‘s life. South

Fulton Medical Center, Inc., v. Poe , 224 Ga. App. 107, 112, 480S.E.2d 40, 45 (1996); O.C.G.A. §19-7-1(a) (providing that until theage 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 basedupon averages. Georgia allows the introduction of facts which may bereliable indicators of what a deceased would have earned and thosefacts includes such things as a deceased‘s age, sex, education, and thedeceased‘s parents‘ education and profession. Woods v. Andersen , 145Ga. App. 492, 243 S.E.2d 748 (1978). Though this distinction doesnot 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, 223S.E.2d 237 (1976).

C. Damages Not Recoverable in a Wrongful Death Action:

1. Mental Anguish or Emotional Distress . Recovery for wrongfuldeath does not include recovery for mental anguish or emotional



83

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 ofdamages in a wrongful death action. Hudson v. Cole , 102 Ga. App.

300, 304, 115 S.E.2d 825, 829 (1960). It is common practice fordefense counsel to move in limine or otherwise object to excludeevidence 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 forloss of consortium arising from the death of a child. In the absence ofa statute to the contrary, a cause of action for loss of consortium islimited to and applicable only to two parties to a marital union, thespouses. 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 wrongfuldeath claim. Because wrongful death actions are by their nature

punitive, Georgia courts have determined that to allow punitivedamages would authorize a recovery in excess of the actual loss to thesurvivor, 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 ofaction 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 ofsurvivorship in any other person, shall survive to the personal representative ofthe 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 forthe medical and other necessary expenses incurred in caring for thedeceased 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 ofthe estate. O.C.G.A. §51-4-5(b).

2. Pain and Suffering. A survival action for pain and suffering underO.C.G.A. §§51-4-5(b) and 9-2-41 is separate and distinct from awrongful 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.



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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 awrongful death action, the jury must have some evidence that thedeceased 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. Punitive damages may be awarded in connectionwith 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.2d187, 290 (1987), overruled on other grounds , Brown v. State , 274 Ga.31, 549 S.E.2d 107 (2001).


Suggested Pattern Jury Instruction, Vol. 1: Civil Cases, 5 th ed. (2007),Charge 66.301

"You may determine the life expectancy of a person when the person's ageis shown without any other direct evidence on the subject. In deciding thismatter, you are also entitled to consider the evidence pertaining to the

person's health, habits, surroundings, and method of living."

Suggested Pattern Jury Instruction, Vol. 1: Civil Cases, 5 th ed. (2007),Charge 66.302

"There is another way in which you may determine the life expectancy ofthe plaintiff. There has been introduced into evidence a copy of the

__________ mortality tables. If you desire to determine from this table thelife expectancy of a person, look up that person's age in one column, andacross from the age column, you will find the life expectancy of a personof that age. Life expectancy shown on any such table is merely a guidethat you may follow while considering the evidence as a whole."



85

HAWAIIKatherine J. Sullivan, Esquire

DEASEY , M AHONEY , VALENTINI & NORTH , L TD .Philadelphia, Pennsylvania

215-587-9400

Dama ges Recoverable in a Minor’s Personal Injury Action

I. Economic Damages

1. Property Damages. Property damages are recoverable.

2. Medical and Other Related Expenses . Medical and related expensesare 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 arerecoverable where the defendant has acted with such an entire want ofcare as would raise a presumption of conscious indifference toconsequences. In determining whether punitive damages areappropriate, the court focuses primarily on the defendant's state ofmind and, to a lesser degree, the nature of his conduct. Punitivedamages are not awarded for mere inadvertence, mistake, or errors of

judgment. Further, a plaintiff must prove entitlement to punitivedamages 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 emotionaldistress are 1) that the conduct allegedly causing the harm wasintentional or reckless, 2) that the conduct was outrageous, and 3) thatthe conduct caused 4) extreme emotional distress to another. Plaintiffmay recover damages for negligent infliction of emotional distressonly if she proves that a reasonably prudent person in the samesituation and possessing the same knowledge as the defendant wouldhave foreseen that someone in Plaintiff's position would have sufferedserious mental distress because of their actions. "Serious mentaldistress" is found where a reasonable person, normally constituted,



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would be unable to adequately cope with the mental stress caused bythe 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/areentitled to damages in such amount as in your judgment will fairly andadequately compensate him/her/them for the injuries whichhe/she/they suffered. In deciding the amount of such damages, youshould 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, reasonablyrequired and actually given in the treatment of plaintiff(s) and thereasonable 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 lostincome 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/theyhas/have suffered and is/are reasonably probable to suffer in the future

because of the injuries, if any;



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d. Permanency

If you find for plaintiff(s) on the issue of liability, plaintiff(s) is/areentitled to damages in such amount as in your judgment will fairly andadequately compensate him/her/them for the injuries which

he/she/they suffered. In deciding the amount of such damages, youshould consider:

The extent and nature of the injuries he/she/they received, and also theextent to which, if at all, the injuries he/she/they received are

permanent;

e. Disfigurement

If you find for plaintiff(s) on the issue of liability, plaintiff(s) is/areentitled to damages in such amount as in your judgment will fairly and

adequately compensate him/her/them for the injuries whichhe/she/they suffered. In deciding the amount of such damages, youshould consider:

The deformity, scars and/or disfigurement he/she/they received, andalso the extent to which, if at all, the deformity, scars and/ordisfigurement are permanent;

f. Punitive Damages 8.92

If you award plaintiff(s) any damages, then you may consider whetheryou should also award punitive damages. The purposes of punitivedamages are to punish the wrongdoer and to serve as an example orwarning to the wrongdoer and others not to engage in such conduct.You may award punitive damages against a particular defendant onlyif 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 beawarded for mere inadvertence, mistake or errors of judgment.

The proper measure of punitive damages is (1) the degree ofintentional, willful, wanton, oppressive, malicious or grossly negligentconduct that formed the basis for your prior award of damages againstthat defendant and (2) the amount of money required to punish thatdefendant considering his/her/its financial condition. In determiningthe degree of a particular defendant's conduct, you must analyze thatdefendant's state of mind at the time he/she/it committed the conductwhich formed the basis for your prior award of damages against thatdefendant.



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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 damagesinstruction.



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IDAHO

John J. BurkeRobert 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 theinjury of the minor child. I.C. § 5-310; IRCP 17(c). In every such actiondamages 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 childrenarising from injuries to themselves are permitted for pecuniary as well as for non-

pecuniary damages. Id.

I. Economic Damages

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 relatedexpenses are recoverable. Lasselle v. Special Prods. Co. , 106 Idaho170, 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 toreceive from the earnings of such minor child until hismajority. 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 theability of that child to work, the parent entitled to the child's servicesduring minority is deprived of such services and, therefore, is entitledto damages to compensate him fo r such loss.‖)


1. Generally: Damages include contributions which the parents mightreasonably have expected to receive from the earnings of such, forwhich 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);



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2. Punitive Damages: Punitive damages are not favored and should beawarded in only the most unusual and compelling circumstances, andare to be awarded cautiously and within narrow limits. Payne v.Wallace , 136 Idaho 303, 308, 32 P.3d 695, 700 (Ct. App. 2001) citingWalston v. Monumental Life Ins. Co. , 129 Idaho 211, 221, 923 P.2d

456, 466 (1996) quoting Manning v. Twin Falls Clinic & Hosp. , 122Idaho 47, 52, 830 P.2d 1185, 1190 (1992) (emphasis added). Punitivedamages must be requested through the filing of a motion to amend toseek such a claim; punitive damages may not be requested in theoriginal complaint. I.C. § 6-1604(2). The court shall allow a motionto amend the pleadings, if after weight the evidence presented, thecourt concludes that the moving party has established at such hearing areasonable likelihood of proving facts at trial sufficient to support anaward 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 negligentor intentional tort.

Intentional infliction of emotional distress requires the followingelements: (1) the defendant‘s conduct was intentional or reckless; (2)the conduct was extreme and outrageous; (3) there was a causalconnection between the wrongful conduct and the plaintiff‘s emotionaldistress, 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 , 106Idaho 735, 741, 682 P.2d 1282, 1288 (Ct. App. 1984). The conductmust be not merely unjustifiable; it must rise to the level of ―atrocious‖and ―beyond all possible bounds of decency,‖ such that it would causean average member of the community to believe that it wasoutrageous. 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 thetort of negligence, requiring the elements of a common law negligenceaction.‖ 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 Na t’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 bemet: (1) a duty recognized by law requiring the defendant to conformto a certain standard of conduct; (2) a breach of that duty; (3) a causalconnection between the conduct and the plaintiff ‘s injury; and (4)



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actual loss or damage. Brooks v. Logan , 127 Idaho 484, 489, 903 P.2d73, 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. Inaddition to these elements, there must be some physical manifestationof the plaintiff ‘s emotional injury. Black Canyon Racquetball Club,

Inc. , 119 Idaho at 177, 804 P.2d at 906; Czaplicki v. Gooding JointSchool 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 thedefendant[s], the jury must determine the amount of money that willreasonably and fairly compensate the plaintiff[s] for any damages provedto 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 usualactivities;

4. The disfigurement caused by the injuries;

5. The aggravation caused to any preexistingcondition.

B. Economic damages

1. The reasonable value of necessary medicalcare received and expenses incurred as a result ofthe injury [and the present cash value of medical

care and expenses reasonably certain and necessaryto be required in the future];

2. The reasonable value of the past earningslost as a result of the injury;



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3. The present cash value of the future earningcapacity lost because of the injury, taking intoconsideration the earning power, age, health, lifeexpectancy, 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 [andthe present cash value of such services reasonablycertain to be required in the future];

5. [Any other specific item based upon theevidence.]

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 forexpenses 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, parentsmay waive or relinquish their rights in favor of the child so as to entitle the childto 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 bythe child in which the child claims damages properly belonging to the parent, orwhen he testifies in the child's action in regard to such damages. If a parent doesnot waive or relinquish the right to recover the full amount of damages, thismeans that the parent would have sued in their own individual capacity. As such,it does not appear that the plaintiff‘s righ t to sue for medical expenses wouldterminate 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 thedecedent's death. This statute does not allow a decedent's claims to survive, butcreates a new cause of action in favor of heirs or personal representatives. Craigv. Gellings , 148 Idaho 192, 194, 219 P.3d 1208, 1210 (Ct. App. 2009).




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action under the statute. Gavica v. Hanson , 101 Idaho 58, 608 P.2d861 (1980).


If the jury decides the plaintiff[s] [is/are] entitled to recover from thedefendant[s], the jury must determine the amount of money that willreasonably and fairly compensate the plaintiff[s] for any damages provedto be proximately caused by defendant[‘s/s‘] negligence.

The elements of damage the jury may consider are:

1. The reasonable cost of the de cedent‘s funeral.

2. The reasonable value of necessary medical care andexpenses incurred prior to the decedent‘s death.

3. The reasonable value to the plaintiff[s] of the loss of thedecedent‘s [services] [training] [comfort] [conjugal relationship] a nd[society] and the present cash value of any such loss that is reasonablycertain to occur in the future, taking into consideration the life expectancyof 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 thedecedent, and the present cash value of financial support the decedentwould have provided to the plaintiff[s] in the future, but for the decedent‘s

death, ta king into account the plaintiff[‘s/s‘] life expectancy, thedecedent‘s age and normal life expectancy, the decedent‘s earningcapacity, habits, disposition and any other circumstances shown by theevidence.

Death is inevitable. Although the law compensates for theuntimeliness of a death caused by another, no damages are allowed forgrief or sorrow.



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ILLINOISJohn S. Monical

Christina MermigasLawrence, Kamin, Saunders & Uhlenhop, LCC

Chicago, Illinois

(312) 372-1947

Damages Recoverable in a Minor’s Pe rsonal Injury Action


1. Medical Expenses. The reasonable expenses of necessary medicalcare, treatment and services received by the child, as well as the

present cash value of the reasonable expenses of necessary medicalcare, treatment and services reasonably certain to be received in thefuture are recoverable. I.P.I. Civil No. 32.05.

2. Child’s Lost Services and Earnings . A parent may recover thereasonable value of the services of an unemancipated minor. I.P.I.Civil No. 32. 06. The parent generally may recover the child‘s lostearnings during the child‘s minority, but the child generally mayrecover the current lost value of future earnings beyond the age ofmajority 18. See I.P.I. Civil No. 32.06 (comments); Wolczek v. PublicServ. Co. of N. Ill., 174 N.E. 577, 583 (Ill. 1930).

3. Caretaking Expenses and Parent Lost Wages. A parent may notrecover 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 orattendance which has been required as a result of the injury to a minorand the cash value of such help reasonably certain to be required in thefuture. 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 ofdamages. I.P.I. Civil No. 30.04; Holston v. Sisters of the Third Orderof St. Francis, 165 Ill.2d 150, 175 (1995). Illinois courts have defined

disfigurement as ―that which impairs or injures the beauty, symmetryor 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 refersto ―disability‖ and ―loss of normal life‖ as alternative mea sures ofdamage. Case law has defined ―disability‖ as an absence of competent

physical, intellectual, or moral powers caused by physical defect orinfirmity or the ―inability to pursue an occupation or perform services

for wages because of physical or men tal 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 normallife‖ to incl ude the temporary or permanent diminished ability to enjoylife, including a person‘s inability to pursue the pleasurable aspects oflife. Note: The nature, extent, and duration of an injury cannot becompensated for as a separate element of damages, but the jury maygenerally consider the nature, extent, and duration of the injury inconsidering 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 isrecoverable 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 reasonablycertain to occur where the Plaintiff proves an increased risk that theinjury will occur. In such cases, the jury is instructed to multiply thetotal amount that the plaintiff would be entitled to recover if the futureharm were certain to occur by the probability that it is actually likelyto 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 ofChicago v. Gilfoil, 99 Ill.App. 88, 89 (Ill. App. Ct. 1st Dist. 1901); seealso 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 distressexperienced 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 painand suffering of an injured minor, caregivers may, under somecircumstances, be able to recover in a direct claim for negligentinfliction of emotional distress to them if they were in the ―zone ofdanger‖ when a child was inju red. 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 notrecover for aggravation of a pre-existing condition as a separateelement of damages but the jury may take aggravation of a pre-existing condition into account when awarding other, recognized

damage claims. Luye v. Schopper, 809 N.E.2d 156 (Ill. App. Ct. 1stDist. 2004). The concept of ―aggravation of any pre -existing ailmentor 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 andonly when certain aggravated factors are present. As a general rule,

punitive damages may be awarded only when torts are committed withfraud, actual malice, or deliberate violence or oppression or when thedefendant acts willfully or with such gross negligence as to indicate awanton disregard of the rights of others. See I.P.I. Civil No. 35.01.


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 fixthe amount of money which will reasonably and fairly compensate him forany of the following elements of damages proved by the evidence to haveresulted 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 theevidence 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 aNormal Life

[The disability experienced (and reasonably certain to be experienced inthe 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‘sinability to pursue the pleasurable aspects of life.

I.P.I. Civil No. 30.04.03: Increased Risk of Harm - Measure ofDamages

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 bythe proven probability that [specify condition] will in fact occur. [You donot 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 LifeExpectancy

Shorted life expectancy.

I.P.I. Civil No. 30.05: Measure of Damages - Pain and Suffering - Pastand Future

The pain and suffering experienced and reasonably certain to beexperienced 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 beexperienced in the future].

I.P.I. Civil No. 30.06: Measure of Damages - Medical Expense - Pastand Future - Adult Plaintiff, Emancipated Minor, or Minor WhoseParent Has Assigned Claim to Minor

The reasonable expense of necessary medical care, treatment, and servicesreceived [and the present cash value of the reasonable expenses of medicalcare, treatment, and services reasonably certain to be received in thefuture].



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I.P.I. Civil No. 30.07: Measure of Damages - Loss of Earnings orProfits - Past and Future -Adult Plaintiff, Emancipated Minor, orMinor 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] reasonablycertain 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/medicalcare/treatment/ services]; reasonably certain to be lost [or incurred] in thefuture 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 MinorWhose Parent Has Assigned Claim to Minor

The reasonable expense of necessary help and the present cash value ofsuch 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 notdeny or limit the plai ntiff‘s right to damages resulting from thisoccurrence because any injury resulted from [an aggravation of a pre-existing 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 conditionof] 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 theefforts 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 certaincircumstances to award punitive damages. If you find that (Defendant'sname)'s conduct was [fraudulent] [intentional] [willful and wanton] and



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proximately caused [injury] [damage] to the plaintiff, and if you believethat justice and the public good require it, you may award an amount ofmoney which will punish (Defendant's name) and discourage [it/him/her]and others from similar conduct. In arriving at your decision as to theamount of punitive damages, you should consider the following three

questions. The first question is the most important to determine theamount 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 toeconomic;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 discouragedefendant and others from future wrongful conduct [in light of defendant'sfinancial condition]?

[In assessing the amount of punitive damages, you may not consider

defendant's similar conduct in jurisdictions where such conduct was lawfulwhen it was committed.] The amount of punitive damages must bereasonable [and in proportion to the actual and potential harm suffered bythe plaintiff.]


Under the Illinois family expense provision of the Rights of MarriedPersons 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 ofmajority (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 ofaction 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 tothe child, the child‘s claim for reimbursement still is subject to the same defensesthat could have been raised against the parent. Reimers , supra The minor child



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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 painand suffering of the decedent or the poverty or wealth of the next ofkin when measuring damages. I.P.I. Civil No. 31.07.

3. Punitive Damages . Neither punitive damages nor prejudgmentinterest is allowable in wrongful-death actions. Gardner v. Geraghty ,423 N.E.2d 1321 (Ill. App. Ct. 1st Dist. 1981). Punitive damagessimilarly are not recoverable under Illinois Survival Act. 755 ILCS5/27-6; Ballweg v. Springfield, 499 N.E.2d 1373, 1377 (Ill. 1986);

Froud v. Celotex Corp., 456 N.E.2d 131, 133 (Ill. 1983).


I.P.I Civil No. 31.01 Measure of Damages - Wrongful Death - MinorChild Decedent - Lineal Next of Kin Surviving

If you decide for the plaintiff on the question of liability, you must then fixthe 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 thedeath of the decedent.

―Pecuniary loss‖ may include loss of money, benefits, goods, services, andsociety.

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 begiven this presumption is for you to decide from the evidence in this case.

In determining pecuniary loss, you may consider what the evidence showsconcerning the following:

[ 1. What (money,) (benefits,) (goods,) (and) (services) thedecedent customarily contributed in the past;][ 2. What (money,) (benefits,) (goods,) (and) (services) thedecedent 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 thedecedent.]

[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 - MinorChild Decedent -Collateral Next of Kin Surviving

If you decide for the plaintiff on the question of liability, you must then fixthe amount of money which will reasonably and fairly compensate the[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 thedeath of the decedent. ―Pecuniary loss‖ may include loss of money,

benefits, goods, services, and society.


[1. What (money,) (benefits,) (goods,) (and) (services) thedecedent customarily contributed in the past;][2. What (money,) (benefits,) (goods,) (and) (services) thedecedent 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 [collateral next ofkin];][10. The relationship between [collateral next of kin] and[decedent].]

Whether pecuniary loss has been proved by the evidence is for you todetermine.

I.P.I. Civil No. 31.03 Measures of Damages -Wrongful Death - MinorChild Decedent -Lineal and Collateral Next of Kin Surviving

If you decide for the plaintiff on the question of liability, you must then fixthe amount of money which will reasonably and fairly compensate the[lineal and collateral next of kin, e.g. brother, parent, etc.] of the decedentfor the pecuniary loss proved by the evidence to have resulted to [thelineal 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, andsociety.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] ofthe decedent.


[ 1. What (money,) (benefits,) (goods,) (and) (services) thedecedent customarily contributed in the past;][ 2. What (money,) (benefits,) (goods,) (and) (services) thedecedent 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];][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 DeterminingPecuniary 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 ActionBrought By Personal Representative

The plaintiff administrator's or executor's name brings this action in arepresentative 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 thedeceased]. They are the real parties in interest in this lawsuit, and in thatsense are the real plaintiffs whose damages you are to determine if youdecide 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 fixthe amount of money which will reasonably and fairly compensate theestate for any of the following elements of damages proved by the

evidence to have resulted from the [negligence] [wrongful conduct] of thedefendant during the period between the time of the decedent‘s injuriesand the time of his death, taking into consideration the nature, extent, andduration 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 theevidence 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 continuedexistence, 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 considerhow long the [ names next of kin ] will be likely to sustain pecuniary lossesas a result of [ decedent's name ]'s death, considering how long [ decedent'sname ] was likely to have lived and how long [ names of widow and/or nextof 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 bythe annual losses. Instead, you must determine their present cash value."Present cash value" means the sum of money needed now which, togetherwith what that sum may reasonably be expected to earn in the future, will



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equal the amounts of those pecuniary losses at the times in the future whenthey will be sustained.

Damages for [loss of society] are not reduced to present cash value.



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INDIANAThomas H. Neuckranz

Jordan D. SheaWilliams Montgomery & John Ltd.

Chicago, Illinois

(312) 443-3200


A wrongful act resulting in injury to a minor child gives rise to two causesof 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). Indianacourts refer to the child‘s action as ―one for personal injury, while the cause ofaction to the parent is one for property damage.‖ Id. A parent of guardian‘s rightto 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 legalresponsibility 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 inflicteddirectly on the parents, and therefore the parents‘ right to recove r is aderivative right dependent upon the child‘s right to recovery.

Hockema, 832 N.E.2d at 542. Because of the derivative nature of theclaim for medical expenses, the child‘s comparative fault may reduceor bar the parents‘ recovery. Id.

Medical bills are admissible into evidence and constitute prima facieevidence that the charges are reasonable. Ind. R. Evid. 413; Burge v.Teter, 808 N.E.2d 124, 132 (Ind. 2004). Expert testimony is notrequired to establish reasonable expenses, but the defendant may rebutthe prima facie evidence of reasonableness through cross examinationor by introducing expert testimony. Stanley v. Walker, 906 N.E.2d 852,856 (Ind. 2009). An injured plaintiff may recover for the reasonablevalue 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 asa result of a contract with an insurer, the acceptance of the discountedrate may be admissible to establish that the bills are not reasonable.Stanley, 906 N.E.2d at 859. The existence of insurance is notadmissible. Id .; Ind. Code § 34-44-1-2.



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2. Loss of services. Forte v. Connerwood Healthcare, Inc., 745 N.E.2d796, 802 (Ind. 2001). The trier of fact measures the loss of servicesdamages from the date of the injury until the date the child attainsmajority, 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 notreduce recovery. See Hockema, 832 N.E.2d at 542. A parent may notrecover for loss of love, society or companionship resulting from aninjury to a child. Forte, 745 N.E.2d at 801.

3. The chil d’s lost earnings during his minority . Allen v. Arthur, 220 N.E.2d 658, 659-60 (Ind. Ct. App. 1966). Unless a minor isemancipated, 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 onthe plaintiff’s ability to function as a whole. Canfield v. Sandrock,563 N.E.2d 1279, 1282 (Ind. 1990). The Indiana Supreme Court hasapproved the model jury instruction directing the jury to consider ―thenature 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 shouldalso consider whether the injuries are temporary or permanent, andwhether 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 qualityand enjoyment of his life.‖ Id. at 1281-82. A plaintiff is entitled torecover for losses of pleasure or enjoyment that result from an injury.

Id. at 1282. Those losses are embodied in the instruction that the juryconsider the nature and extent of the injury, and the effect of the injuryon the plaintiff‘s ability to function as a whole. Id.

2. Impairment of earning capacity after the age of majority. Until theage of majority, the right to a child‘s earnings b elongs 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 recoverdifference between the amount he was capable of earning before theinjury 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.



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A plaintiff claiming loss of earning capacity need not show that he wasemployed at the time of the injury. Rieth-Riley Const. Co., Inc. v.

McCarrell, 325 N.E.2d 844, 848 (Ind. Ct. App. 1975). The plaintiffmust show more than proof of permanent injury and pain. Scott v.

Nabours, 296 N.E.2d 438, 441 (Ind. Ct. App. 1973). Through eitherexpert or lay testimony, the plaintiff must submit evidence tending toshow his injury had an adverse effect on vocation. Id. In awardingdamages for loss of earning capacity, the jury may consider evidenceof the ―plaintiff‘s age, life expectancy, health, training, experience,intelligence, and talents, as well as the na ture 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 toquantification. Weinberger v. Boyer , 956 N.E.2d 1095, 1113 (Ind. Ct.App. 2011).

4. Reasonable and Necessary Medical Expenses . Either the parent ofchild may claim reasonable and necessary medical expenses. Seediscussion below.

5. Punitive Damages. A minor plaintiff may receive a punitive damagesaward 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 actedwith malice, fraud, gross negligence or oppressiveness which was notthe 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). Compensatorydamages 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 ofthree times the compensatory damages or $50,000. Ind. Code § 34-51-3-4. The plaintiff receives 25% of the punitive damages award and theremaining 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 ] isliable to [ plaintiff ], then you must decide the amount of money that willfairly compensate [ plaintiff ].

In deciding the amount of money you award, you may consider:

(1) the nature and extent of the [injury][injuries], and the effectof the [injury][injuries] on the [ plaintiff ]'s ability tofunction 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 orimpairment 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 canreasonably be expected to lose) as a result of [ defendant's ][negligence][wrongful conduct];

(5) the physical pain and mental suffering [ plaintiff ] hasexperienced [and will experience in the future] as a resultof 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 reasonablemedical 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 actionagainst the tortfeasor to recover medical expenses as damages. Id. The IndianaSupreme Court has held, ―[h]owever parent and child divide their claim formedical expenses, that division is of no consequence to the tortfeasor, as long ashe is not subject to pay twice for the same expenses.‖ Id.

When the ch ild reaches the age of majority, the parents‘ obligation to paymedical 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 atortfeasor for medical expenses inc urred during the child‘s minority, despite thefact that the child is no longer a minor. However, the parents are not responsiblefor paying medical expenses incurred after the child attains majority. See

Hockema, 832 N.E.2d at 542. Claims against a tortfeasor for medical expensesincurred 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 ofWade v. U- Haul Int’l , 745 N.E.2d 755, 758 (Ind. 2001). Indiana‘s Child WrongfulDeath Statute (CWDS) provides the exclusive right of recovery in actionsresulting in the death of an unmarried person under age 20, or under age 23 ifenrolled 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 plaintiffmay recover. See Ind. Code § 34-23-2-1(f). Punitive Damages not available. Forev. 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 parentsmay recover for the loss of the child‘s services from the date of deathuntil the shorter of (1) the date the child would have reached the age of20, or age 23 if the child was enrolled in college, or (2) the date ofdeath 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, forexample, the fact that the child was healthy, helped with chores athome, and maintained a part-time job. Childs v. Rayburn , 346 N.E.2d655, 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 ofthe loss of the child‘s love and companionship. Randles, 860 N.E.2d at



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(5) reasonable cost of psychiatric and psychological counselingincurred by [ surviving parent(s) and minor siblings ] andrequired 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, includingreasonable 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 ofchild's last surviving parent's life expectancy.

In awarding damages other than for loss of love and companionship, youmay 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 educationalinstitution, 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.



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IOWAKevin M. Reynolds

Whitfield & Eddy, PLCDes Moines, Iowa

(515) 288-6041

Damages Recoverable in a Minor’s Personal Injury Action 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 ofCivil Procedure 1.206, formerly known as ―Rule 8.‖ Claims of this type areknown 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 actualloss of services, companionship and society resulting frominjury 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 caseinvolving personal injury, this claim can be made. See Iowa UniformCivil Jury Instruction No. 200.8 (2010)(Loss of time-earnings); 200.9(2010)(Loss of Future Earning Capacity). There are no reported Iowadecisions that address how a claim for loss of future earning capacitymay be proven, in the case of an injury to a minor. In practice, the

plaintiff‘s attorney retains an economist to make future projecti ons based on historical facts such as the parents‘ education, their workexperience, and income, and the education, work experience andincome of any older siblings, as well as any other relevant factors,such as school grades, part time work, and so forth. If the caseinvolves an injury to a very young minor is involved, it would seemthat such a claim would be overly speculative, and Iowa law is clearthat 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 CivilJury 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 FullMind 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 beawarded where ―by a preponderance of the clear, convincing andsatisfactory evidence, the conduct of the defendant from which theclaim arose constituted willful and wanton disregard for the rights orsafety 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 Instruction200.29.

―If you find (father and/or mother) is entitled to recover for damagesustained by [him][her] as the result of the injury to (minor), it is yourduty to determine the amount. In doing so you shall consider thefollowing items:

The reasonable value of [hospital charges][doctorcharges][prescriptions][other medical services] from the date of the injuryto the present time.

The present value of reasonable and necessary [hospitalcharges][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 damagesustained by [him][her] as the result of the injury to (minor), it is yourduty to determine the amount. In doing so you shall consider thefollowing items:

The reasonable value of the past loss of services, which include loss ofcompanionship 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 eighteenyears][marries]], minus the probable cost of the child‘s board andmaintenance during that time period.

The present value of the future loss of services, which includes loss ofcompanionship and society of the child, from the present time until thechild [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 orfinancial value of the child‘s labor where the child is not employed] aswell as the parents right to the intangible benefits of companionship,cooperation and affection of the child. They do not include mentalanguish 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 toanswer the special verdicts.‖

See also Gookin v. Norri s, 261 N.W.2d 692 (Iowa 1978); Wardlow v. Cityof 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 pursuemedical expenses once the child reaches the age of majority.

Damages Recoverable in a Minor Wrongful Death ClaimIn 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, formerlyknown as ―Rule 8.‖ Claims of this type are known generally in Iowa as ―Rule 8claims.‖

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 actualloss of services, companionship and society resulting frominjury to or death of a minor child.‖(emphasis added).

II. Wrongful Death Damages:

1. Medical and other related expenses. Pre-death medical expenses arerecoverable under the ―expense‖ element of Rule 1.206 . See IowaUniform Civil Jury Instruction No. 200.23 (2010).

2. Loss of earnings or wage earning capacity. As with any caseinvolving personal injury, this claim can be made. See Iowa UniformCivil Jury Instruction No. 200.8 (2010)(Loss of time-earnings).

3. Pain and suffering. Pre-death conscious pain and suffering isrecoverable. 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 theadditional amounts (minor) would reasonably be expected to haveaccumulated as a result of his/her own effort from the date he/shewould have [reached age eighteen years][married] until he/she had

lived out the terms of his/her life.‖ See Iowa Uniform Civil JuryInstruction No. 200.27 (2010).

5. Punitive Damages. These claims are governed by Iowa Code§668A.1 (2010). That statute provides that punitive damages may beawarded where ―by a preponderance of the clear, convincing andsatisfactory evidence, the conduct of the defendant from which theclaim arose constituted willful and wanton disregard for the rights orsafety of another.‖ See Iowa Code §668A.1(1)(a)(2010). Under Iowalaw there is no proscription or prohibition against a minor‘s claim for

punitive damages in a wrongful death case.


a. Wrongful Death. Iowa Uniform Civil Jury Instruction No. 200.26.

―If you find (name) as personal representative of the estate of (decedent) isto recover damages, it is your duty to determine the amount. In doing soyou 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][lossof function of mind and body] cannot be measured by any exact ormathematical standard. You must use your sound judgment based upon animpartial consideration of the evidence. Your judgment must not beexercised arbitrarily, or out of sympathy or prejudice, for or against the

parties. The amount you assess for any item of damage must not exceedthe amount caused by the defendant(s) as proved by the evidence.

A party cannot recover duplicate damages. Do not allow amountsawarded under one item of damage to be included in any amount awardedunder another item of damage. [Similarly, damages awarded to one partyshall 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 toanswer the special verdicts.‖

b. Present Worth of Value of Estate – Minor . Iowa Uniform Civil JuryInstruction No. 200.27

―The present value of additional amounts (minor) would reasonably beexpected to have accumulated as a result of [his][her] own effort from thedate [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 amounthe/she might have accumulated.‖

c. Elements – Death of a Minor – Rule 8 Claim . Iowa Uniform CivilJury Instruction No. 200.28.

―If you find(father and/or mother) is entitled to recover damages as aresult of the death of (minor), it is your duty to determine the amount. Indoing so you shall consider the following items:

1. The reasonable value of the past loss of services, whichinclude loss of companionship and society of the child, from thedate of death to [the present time][the date the child would have[reached age eighteen years][married]] minus the probable cost ofthe child‘s board and maintenance during that time period.

2. The present value of the future loss of services, whichinclude loss of companionship and society of the child from the

present time until the child would have [reached age eighteenyears][married]] minus the present value of the probable cost of thechild‘s board and maintenance during that time period .

3. The interest on the reasonable burial expenses of the childfrom the time of death until the time those expenses wouldnormally be paid. The amount cannot exceed the reasonable costof the burial.

4. The reasonable value of necessary [hospital charges][doctorcharges][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 monetaryvalue 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 andaffection of the child. They do not include the parent‘s mental anguishcaused by the child‘s death.

In determining loss of companionship and society, you may consider thecircumstances 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 bemeasured 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 itemof 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 amountsawarded under one item of damage to be included in any amount awardedunder another item of damage. [Similarly, damages awarded to one partyshall not be included in any amount awarded to another party.]‖

See also Gookin v. Norris , 261 N.W,.2d 692 (Iowa 1978); Wardlow v. Cityof 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).



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KANSASKara T. Stubbs

Michael J. SerraBaker Sterchi Cowden & Rice LLC

Kansas City, Missouri(816) 471-2121



1. Medical Expenses . The fundamental principle of the law of damagesis that a person who suffers personal injuries because of the negligenceof another is entitled to recover the reasonable value of medical careand expenses for the treatment of his or her injuries. See Bates v.

Hogg , 921 P.2d 249 (Kan. App. 1996). The reasonable valueof medical services is the measure used to determine damages to aninjured party in a personal injury matter. See Martinez v. Milburn

Enterprises, Inc. , 233 P.3d 205 (Kan. 2010). This value is notexclusively based on the actual amount paid or the amount originally

billed, though these figures certainly may constitute evidence as to thereasonable value of medical services. See id.

2. Economic Loss. A defendant in any action is allowed to have amountsallowed for future damages reduced to present worth where there arereasonable 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 tocompute present worth, either by way of expert testimony orappropriate mathematical tables or formulae, is admissible in anyaction in which substantial future damages are claimed. See id.Impairment of an injured party's capacity to earn is relevant incalculating 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 ofdamages to be awarded is determined by comparing what the injured

party was capable of earning at or before the time of the injury withwhat 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 themaximum allowable recovery for noneconomic loss to $250,000 inany action for personal injuries.



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2. Pain and suffering . In Kansas, the trial court can allow a plaintiff toargue loss of enjoyment of life and instructed the jury that such a lossis 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 economicloss. See Cott v. Peppermint Twist Mgt. Co. , 856 P.2d 906 (Kan.1993). If damages are awarded for pain and suffering based upon adisability, the disability is a noneconomic loss subject to a damagescap. See id. If the damages award is for diminished earning capacity

based on that disability, the loss is economic and not subject to adamages cap. See id.

4. Disfigurement . Disfigurement has been defined as that which impairsor injures the beauty, symmetry or appearance of a person or thing,

that which renders unsightly, misshapen or imperfect, or deforms insome manner. See Smith v. Marshall , 587 P.2d 320 (Kan.1978). Evidence of a locking elbow which occurred frequently andwithout warning meets the definition of disfigurement. See Ratterreev. Bartlett , 707 P.2d 1063 (Kan. 1985).


a. 171.02 Types of Damages Allowed — Personal Injury

When determining the amount of damages sustained by the plaintiff, youmust allow the amount of money that will reasonably compensate plaintifffor his/her injuries and losses resulting from the occurrence in question.These injuries and losses may include any of the following shown by theevidence:

1. MEDICAL EXPENSES. Medical expenses include the reasonableexpenses of necessary medical care, hospitalization and treatment receivedas a result of plaintiff's injuries to date (and the medical expenses plaintiffis reasonably expected to incur in the future) [reduced to present value].

2. ECONOMIC LOSS. Economic loss includes loss of time orincome and losses other than medical expenses incurred as a result of

plaintiff's injuries to date (and the economic loss plaintiff is reasonablyexpected to incur in the future) [reduced to present value].

3. NONECONOMIC LOSS. Noneconomic loss includes pain,suffering, disabilities, disfigurement and any accompanying mental



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anguish suffered as a result of plaintiff's injuries to date (and thenoneconomic loss plaintiff is reasonably expected to suffer in the future).

When determining the amount of damages owed to the plaintiff you mustconsider plaintiff's age and condition of health before and after the

occurrence in question. Also, you must consider the nature, extent andduration of the plaintiff's injuries. There is no unit value and nomathematical formula the court can give you for determining items suchas pain, suffering, disability, and mental anguish. You must establish anamount that will fairly and adequately compensate the plaintiff. Thisamount rests within your sound discretion.

You must itemize the amounts of damages awarded in this case on theverdict form that will be given to you.

b. 171.04 Damages for Increased Injury Resulting from

Rendering AidIf plaintiff sustained personal injury as a result of defendant's negligence,then plaintiff may recover damages from defendant for any additionalharm 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 — ShortForm

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 (injuriesand) damages you believe plaintiff sustained as a result of the occurrencecomplained of by plaintiff.

d. 171.42 Duty to Mitigate Damages

In determining the amount of damages sustained by plaintiff, you shouldnot include any loss which plaintiff could have prevented by reasonablecare 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, ordisability that existed prior to the occurrence. However, if the plaintiff hada preexisting physical ailment, defect or disability and you find thiscondition was aggravated or made active causing increased suffering or



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disability, then the plaintiff is entitled to recover for such increasedsuffering 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 plaintiffactual 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 parentdoes 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) theminor child has paid or agreed to pay the expenses; (2) the minor child is legallyresponsible 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 hisor her right to recover for damages properly belonging to the parent if thesedamages are awarded in the child's action. A waiver will be considered sufficientif 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 caneither be expressed formally or implied. See id.

A parent suing for consequential damages resulting to himself or herselffrom 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 deathstatute does not preclude recovery of pecuniary damages for loss offilial guidance, counsel, and similar services. See Cochrane v.Schneider Nat. Carriers, Inc ., 980 F.Supp. 374 (D. Kan. 1997). Indeath 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).



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2. Loss of earnings you find the child would have contributed to theparent(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 . Arecovery for the benefit of the next of kin against one whose wrongfulact has occasioned a death, the damages recovered by a father for thedeath of his minor son may include compensation for expendituresreasonably 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 medicaland funeral expenses as damages. See Denton by Jamison v. UnitedStates of America and Cushing Memorial Hospital , 1990 WL 98335(D. Kan. July 3, 1990). Compensable damages to the heirs in awrongful death action include pecuniary as well as nonpecuniarydamages, such as loss of support, loss of companionship, and mentalanguish, 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 mayaward such damages as are found to be fair and just under all the factsand circumstances, but the damages, other than pecuniary losssustained 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 arerecoverable under Kansas law only for pain and suffering which isconsciously experienced. See Sullivan v. U.S. Gypsum Co. , 862F.Supp. 317 (D. Kan. 1994). Award of damages for pain and sufferingwas proper in action brought against electric company allegingnegligence in installing and maintaining high power line which causeddeath of plaintiff's decedent; witness testified that decedent was



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breathing and audibly moaning immediately after injury from powerline and later squeezed his wife's hand in response to her questions,and officer testified that decedent was breathing and makingincoherent 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 . Indetermining damages for wrongful death of plaintiff's husband, juryhad right to consider mental anguish, suffering or bereavement, loss ofsociety, companionship, comfort or protection, loss of marital care,attention, advice, or counsel in addition to loss of potential earningcapacity. See Duran v. Mission Mortuary , 258 P.2d 241 (Kan. 1953).In passing upon adequacy of award to parent for death of child, notonly must pecuniary loss be taken into account, but consideration must

be given also to those intangibles of grief, anguish, suffering. SeeCorman v. WEG Dial Tel., Inc. , 402 P.2d 112 (Kan. 1965).


a. 171.32 Wrongful Death of a Child

If you find plaintiff is entitled to recover damages, you should allow theamount of money that will reasonably compensate plaintiff for the losscaused 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 believewould be equivalent to the benefit plaintiff could reasonably haveexpected 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.



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For noneconomic damages there is no unit value and no mathematicalformula the court can give you. You should allow an amount that you findto 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 awardedfor future losses.



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KENTUCKYSusan S. Wettle

FROST BROWN TODD LLCLouisville, Kentucky

(502) 589-5400


Personal injury to a minor child gives rise to two causes of action: 1) anaction on behalf of the child for pain and suffering, permanent injury, andimpairment of earning capacity after majority; and 2) an action by the parent forconsequential damages including the loss of services and earnings during minorityand 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).


1. Medical Expenses. Past compensatory damages including reasonableand 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 futuremedical 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 forloss of the services or earnings of their child during his minority,when the loss is occasioned by an injury wrongfully or negligentlyinflicted on the child. K.R.S 405.010. If either the father ormother is dead, or has abandoned the child, or has been deprived ofits custody by court decree, or refuses to sue, the other may suealone. Id.

b. Recovery of impairment of power to earn money afterreaching the age of majority . An injured child is entitled torecover for the permanent impairment of his power to earn moneyafter becoming of age. Louisville Metro Housing Authority v.

Burns, 198 S.W.3d 147 (Ky. App. 2006). In Burns, the Court ofAppeals acknowledged that evidence of a child victim‘s futureearnings may necessarily have some uncertainty, but questionsabout the reliability of such evidence are more evidentiary thansubstantive. ―It is a longstanding and well -established rule in thisCommonwealth that ‗[p]ermanent impairment of earning power is



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merely the test to be applied by the jury in determining thecompensation to be awarded for permanent inju ry….‘ [Citationomitted.] We know of no better vehicle for assisting the jury inthis regard than through the testimony of a qualified vocational andrehabilitation expert, whose credentials and methodologies went

unchallenged in this case. Testimony concerning the future prospects of a child victim necessarily involves some degree ofspeculation, 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 a namount equaling ten thousand dollars or less, exclusive of interest, the

person having custody of the child may settle the claim, subject to theapproval of the Court, without necessity of the appointment of aformal guardian. K.R.S. 387.280. Settlements that exceed tenthousand dollars require the appointment of a guardian pursuant toK.R.S. 387.020 to settle the claim on behalf of the minor.


1. Physical Pain and Suffering. Damages can be awarded for physicaland 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 t hatit is reasonably certain that pain and suffering will occur.‖ Id. at 128.―If future medical expenses are awarded by a jury, there is a strongindication that a corresponding award for future pain and suffering

must be considered. [Citation omitted.] However, there is no rule tosuggest that where no future medical expenses are indicated, the jury is precluded from making an award. The test is whether there isevidence to indicate that the plaintiff‘s pain and suffering are likely tocontinue to occu r.‖ Id. (Emphasis in original.)

2. Punitive Damages . K.R.S. 411.184(1) provides that a plaintiff shallrecover punitive damages only upon proving, by clear and convincingevidence that the defendant acted toward the plaintiff with oppression,fraud or malice. The Kentucky Supreme Court struck down that partof the statute found at K.R.S. 411.184(1)(c) to the extent the definitionof ―malice‖ required a finding of heightened subjective awareness bythe defendant. Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998). TheCourt held that the right to recover punitive damages for grossnegligence using an objective ―reasonable person‖ standard was a―jural right‖ preserved and protected by Section 14 of the KentuckyConstitution. Id. at 268-69.



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Kentucky does not have model instructions specific to damagesrecoverable 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 asum of money that will fairly and reasonably compensate him forwhatever physical or mental suffering you believe from the evidence hehas sustained or is reasonably certain to endure hereafter as a direct resultof [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 asum of money that will fairly compensate him for whatever necessary andreasonable expenses for medical services you believe from the evidence hehas incurred or is reasonably certain to incur hereafter as a direct result ofhis 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 asum 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 believefrom the evidence he has suffered directly by reason of [his injuries] [theaccident], 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 asum of money that will fairly and reasonably compensate him forwhatever loss of services and probable earnings of X [the child] prior toX‘s reaching the age of 18 you believe from the evidence P has sustainedand 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 , 465S.W.2d 288 (Ky. 1971).

Although K.R.S. 405.010 does not specifically provide for a parent‘s right torecover medical expenses incurred as a result of the child‘s injury, there is dictasuggesting 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 lossof the infant's services until he reaches his majority, and for nursing and takingcare 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 aseparate cause of action for loss of services and medical expenditures. This istrue.‖) 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 currentstatute and did not expressly provide for the parents‘ recovery of medicalexpenses. 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 beforethe child reaches the age of eighteen.



An action for wrongful death in Kentucky must be brought by the personalrepresentative of the deceased. K.R.S. 411.130. The parents of a minor childmay bring a separate action ―for loss of affection and companionship that wouldhave 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 mayrecover may recover damages consisting of ―loss to the estate.‖ Inaddition to funeral expenses, this loss is generally measured by thedestruction 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 tocompensate for damages caused by the death. K.R.S. 411.130. If thedeceased lived for some period of time between the injury andresulting death, the damages suffered during that period are also



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recoverable under a ―survival‖ statute that allows the personalrepresentative to join the personal injury claims that the deceasedwould have had with the wrongful death claim. K.R.S. 411.133. Thisclaim may include medical expenses, pain and suffering and lostwages for the time between the injury and resulting death. Vitale v.

Henchey, 24 S.W.3d 651 (Ky. 2000). Kentucky courts have held thatan award for pain and suffering includes the element of loss ofenjoyment of life and therefore no separate jury instruction on hedonicdamages should be given. Transportation Cabinet, Dept. of Highwaysv. Thurman, 897 S.W.2d 597 (Ky. Ct. App. 1995).

3. Punitive damages. The wrongful death statute specifically recognizesthe right to recover punitive damages if the death resulted from willfulor grossly negligent conduct. K.R.S. 411.130(1).

4. Loss of services of minor child. K.R.S. 411.135 allows parents torecover for the loss of ―affection and companionship‖ for the death ofa minor child. These damages are allowed for the period of time

between the injury and the time the child would reach the age ofmaturity. Id. This statute creates a separate claim to be brought by the

parents and is not affected by what the personal representative doeswith 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 believefrom the evidence will fairly and reason ably compensate X‘s estate forthe 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 ParentalRecovery under K.R.S. 411.135 2-24 Personal Injury; Loss of MinorChild 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 thefollowing damages as you believe from the evidence has beensustained 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 timeof the accident] and his death. $______.

AND a sum or sums of money that will fairly and reasonablycompensate P2 and P3 [X‘s mother and father] for such of thefollowing damages as you believe from the evidence they havesustaine d directly by reason of X‘s death:

(1) Loss of X‘s services [prior to his reaching 18 years of age], notexceeding $_______;

(2) Loss of affection and companionship that would have beenderived from X during his minority. $______



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LOUISIANAC. 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 damagesgenerally 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 anotherobliges him by whose fault it happened to re pair it.‖ Thus, underLa. 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 foran injury sustained.‖ Fogle v. Feazel, 201 La. 899, 909, 10 So.2d695, 698 (1942). In the delictual context, La. C.C. art. 2315authorizes *774 compensatory damages. Compensatory damagesencompass those damages ―designed to place the plaintiff in the

position in which he would have been if the tort had not beencommitted.‖ Frank L. Maraist & Thomas C. Galligan, Jr.,LOUISIANA TORT LAW § 7-1 (Michie 1996) (footnotesomitted).

Compensatory damages are further divided into the broadcategories of special damages and general damages. Specialdamage s are those which have a ―ready market value,‖ such thatthe amount of the damages theoretically may be determined withrelative certainty, including medical expenses and lost wages,while general damages are inherently speculative and cannot becalculated with mathematical certainty. Id. § 7-2 (footnotesomitted).‖ 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 anunemancipated minor who is born of the marriage of parents who are not divorcedor judicially separated. The mother is the proper plaintiff when the father ismentally incompetent, committed, interdicted, imprisoned, or an absentee. Withthe permission of the Court the mother may represent the minor whenever thefather 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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―zone of danger‖ who views an accident causing injury to another person or who may come upon the scene of the accident soon after theoccurrence of the accident. Bystander recovery is limited to specifiedclose relationships to the injured person, and which includes parents,grandparents, children, grandchildren, siblings, and spouses. (La Civil

Code Article 2315.6).Damages Recoverable in a Minor’s Wrongful Death Claim

I. Wrongful Death Statute

The right to assert a claim for the wrongful death of a minor is outlined inLouisiana Civil Code Art. 2315.2, which provides as follows:

If a person dies due to the fault of another, suit may be brought bythe following persons to recover damages which they sustained asa result of the death:

(1) The surviving spouse and child or children of the deceased, oreither the spouse or the child or children.

(2) The surviving father and mother of the deceased, or either ofthem if he left no spouse or child surviving.

(3) The surviving brothers and sisters of the deceased, or any ofthem, 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 siblingsurviving.

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 parentare 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 ofdamages for loss of enjoyment of life in the wrongful death claim for aminor‘s death. See, Mc Gee 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 forrecovery of exemplary damages under limited circumstances, but toinclude:

a. Proof that the injuries were caused by an act of pornography involving juveniles (La. Civil Code Article2315.3)

b. Damages caused by a defendant whose intoxication whileoperating a motor vehicle was a cause in fact of theresulting injuries. (La. Civil Code Article 2315.4)

c. Damages caused by criminal sexual activity occurringduring childhood - Exemplary (Punitive) damages can berecovered for criminal sexual activity which occurred whenthe victim was seventeen years or younger, regardless ofwhether 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―zone of danger‖ who views an accident causing injury to another

person or who may come upon the scene of the accident soon after theoccurrence of the accident. Bystander recovery is limited to specifiedclose relationships to the injured person, and which includes parents,grandparents, children, grandchildren, siblings, and spouses. (La CivilCode Article 2315.6)

II. Survival Action

If a person who has been injured by the tort of another dies, the right torecover all damages for injury to that person and his property shall survive for oneyear, and may be brought by the following classifications of individuals set forthin Louisiana Civil Code Art. 2315.1:

1. The surviving spouse and child or children of the deceased, oreither the spouse or the child or children.

2. The surviving father and mother of the deceased, or either of themif 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.



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grandparents, children, grandchildren, siblings, and spouses. (La CivilCode Article 2315.6).



141

MAINEMartha C. Gaythwaite

Marie J. Mueller Friedman Gaythwaite Wolf & Leavitt

Portland, Maine

(207) 761-0900


I. Economic Damages

1. Medical and Related Expenses . The minor‘s parent is entitled torecover for the reasonable value of medical and nursing servicesincurred 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 aninjury to a child. Roberts v. Tardif , 417 A.2d 444 (Me. 1980) (theevidence supported a finding that a child‘s injury during birth wouldresult in continued impairment in the use of her left arm). Maine hasnot outlined a specific standard that a minor plaintiff must satisfy to beentitled to such damages. However, in a case involving a plaintiffinjured at the age of 18, the court stated: ―Direct and specific evidenceof the extent of the impairment, measured in money, is notnecessary…the assessment of damages for impairment of earningcapacity rests largely upon the common knowledge of the jury or otherfact-finder, sometimes with little aid from evidence; helpful evidenceis admissible, although it does not furnish any mathematical valuationof 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 notautomatically entitle a plaintiff to a loss of earnings instruction; thequantum of evidence needed may vary from case to case, oftendepending on the vocation or circumstance of the plaintiff. Kaler , 348A.2d at 703.


1. Hedonic Damages. Under this general category, a plaintiff canrecover for ―fear, pain, discomfort, anxiety or other mental oremotional 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 WL1710708 (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 injuryduring birth would result in continued impairment in the use of her leftarm).

4. Loss of Services. The parents of a minor child jointly may maintainan action for loss of the services or earnings of that child when thatloss 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

5. Punitive Damages. Common law punitive damages may be available

in Maine for tortious conduct resulting in injury when the defendantacts with malice. Tuttle v. Raymond , 494 A.2d 1353 (see juryinstruction below for standard).

6. Loss of Consortium is NOT recoverable. Loss of consortiumdamages are not available to parents based on injuries suffered by theirchild. Maine limits loss of consortium damages to spousalrelationships. 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, aseparate claim for negligent infliction of emotional distress issubsumed in that award. Curtis v. Porter , 2001 ME 158, ¶ 19, 784A.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 servicesincluding; 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 intreatment and care of the plaintiff, plus a sum to compensate the plaintifffor any medical care, medicines and medical supplies which you find arereasonably 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 plaintiffhas lost because of the defendant‘s negligence, plus a sum to reasonablycompensate the plaintiff for any loss of wages [earnings], which you find

that the plaintiff is reasonably certain to suffer in the future because of thedefendant‘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 findthat the plaintiff is reasonably certain to suffer in the future because of thedefendant‘s negligence.

d. Permanent Impairment § 7-112

A sum which will compensate plaintiff reasonably for any permanentimpairment which you find to be proximately caused by the defendant‘snegligence. Permanent impairment is injuries which result in permanentloss, loss of use, restriction of motion or impairment of some member orsystem 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 anydetermination you make regarding permanent impairment. And you mayapply this life expectancy if you find the plaintiff meets the stipulatedcriteria 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 considerseparately 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 conductand 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 withmalice.

Malice means that the defendant‘s conduct was motivated by ill willtowards the plaintiff [or that the defendant engaged in deliberate conductwhich, while motivated by something other than ill will toward any



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particular person, is so reprehensible that malice toward a person injuredas a result of the conduct can be implied. To meet this standard of impliedmalice, the conduct at issue must be such that it would almost certainlyresult 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 originalliability claim]. To find facts proven by clear and convincing evidence,you must have an abiding conviction that it is highly probable that thefacts that the plaintiff must prove are the correct view of the events atissue.

If you find that plaintiff has proven, by clear and convincing evidence, thatdefendant acted with malice, then you must decide whether punitivedamages should be awarded and the amount of such damages. In decidingwhether 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 theevidence, including the reprehensibility of the defendant‘s conducttoward the plaintiff. In evaluating reprehensibility, you mayconsider 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 imposedfor the conduct in question. When a criminal punishment has beenimposed, it may be considered as mitigating the amount ofdamages].

The amount of punitive damages that you award must be reasonablyrelated to the harm to the plaintiff, including the harm caused by thereprehensibility of the defendant‘s conduct [and the ability of thedefendant to pay such an award].


―[A] parent or guardian [is entitled] to recover for medical expensesincurred 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.2d444 (Me. 1980). A parent is entitled to recover for reasonable medical andnursing expenses incurred in treating the child‘s injury, even if they aregratuitously 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 inwhich 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 pre-

majority medical expenses (and therefore recover for their payment) if they candemonstrate that their parent is either unable or unwilling to pay for necessaryexpenses. 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 compensatethe 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 ofthe 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 thedeceased, including any damages for emotional distress arising fromthe 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 theaccident 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 makeseparate emotional distress claims arising from the same facts.―Plaintiffs may not circumvent the statute‘s damage cap by bringing aseparate emotional distress claim.‖ Carter v. Williams , 792 A.2d1093, 1098- 9, 2002 ME 50, ¶ 14, 19. One parent‘s claim of loss ofconsortium based on the other‘s emotional injur ies from the accidentwas also precluded, as the emotional distress arose from the same facts



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as the wrongful death claim. Carter , 792 A.2d at 1100, 2002 ME 50, ¶25.

2. Punitive Damages. The jury may give punitive damages notexceeding $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 ofconscious suffering, as a result of personal injuries due to the wrongfulact, 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 recoverabletherein, be liable in damages in a separate count in the same action forsuch death, brought, commenced and determined and subject to thesame limitation as to the amount recoverable for such death andexclusively for the beneficiaries in the manner set forth in subsection

(b), separately found, but in such cases there shall be only onerecovery for the same injury. 18-A M.R.S.A. § 2-804(c). Damagesfor pain and suffering and for loss of enjoyment of life are limited tothe period of survival that may exist between the alleged negligentevent 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 lifeexpectancy is not a recoverable element of damages under thewrongful death statute. Phillips v. Eastern Maine Medical Center , 565A.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 determinethat the facts that [she] must prove are more likely true than not true.In this case, in addition to [the plaintiff‘s] negligence and dama ges claimsthat must be proven more likely than not, [the defense] contends thatnegligence by [the deceased] was a cause of the collision. [The defendant]must prove that it is more likely than not that [the deceased] was negligentand that [the deceased ‘s] negligence was a cause of the collision. Indeciding whether any fact has been proven more likely than not, youshould consider the testimony of all witnesses, regardless of who

presented them, and all exhibits received in evidence, regardless of who produced them.



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To the extent the same types of damages are available, the instructionslisted in Part III above are also applicable in a Wrongful Deathaction.



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MARYLANDSidney G. Leech

Christopher R. CorchiarinoGoodell, DeVries, Leech & Dann, LLP

Baltimore, Maryland

(410) 783-4000



1. Medical and other related expenses . The parents or guardians ofthe child may pursue a claim for medical expenses incurred whiletreating the mi nor‘s injuries. Id. at 693-94. However, the childmay bring a claim to recover the medical expenses on his ownaccord 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) asnecessaries 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 oftenthan not, juries will have to decide with the aid of expert and laytestimony when necessary, whether and to what extent an injuredchild's medical necessaries exceed the financial ability of the

parents. Johns Hopkins Hosp. v. Pepper , 346 Md. 679, 701, 697A.2d 1358, 1369 (1997). Medical expenses may include necessaryand reasonable expenses for hospital services, medical attention,

medicine, and nurses. Plank v. Summers , 203 Md. 552, 562, 102A.2d 262 (1954). A plaintiff may also recover future medicalexpenses. Naughton v. Bankier , 114 Md. App. 641, 657-58, 691A.2d 712 (1997).

Damages for medical expenses require evidence that the medicalservices provided were necessary and caused by the negligence ofthe 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 thatthe amount charged for the medical services was fair andreasonable. Desua , 768 A.2d at 58 – 59 (citing Shpigel v. White ,741 A.2d 1205, 1211 (1999)). Mere evidence of the amountcharged or payment tendered for the medical services isinsufficient to establish the reasonableness of the value of themedical services. Desua , 768 A.2d at 59 (quoting Kujawa v.

Baltimore Transit Co. , 167 A.2d 96, 102 (1961)).



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2. Lost wages or impairment of earning capacity. A plaintiff canrecover 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 aconsequence of his injury. Anderson v. Litzenberg , 115 Md. App.549, 572, 694 A.2d 150 (1997). Impairment of earning capacity ismeasured by the lost capacity to earn, rather than what a personwould have earned, i.e. , lost wages. Id. Moreover, ―‗[b]ecauseimpairment of earning capacity is not measured by what theclaimant actually earned . . . a plaintiff can recover for impairmentof earning capacity without establishing a prior track record ofearnings.‘‖ Lewin Realty III, Inc. v. Brooks , 138 Md. App. 244,282, 771 A.2d 446 (2001) (quoting Anderson , 115 Md. App. at575). 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 , 428A.2d 80, 85 (Md. App.1981), modified on other grounds sub. nom.

Blanchfield v. Dennis , 438 A.2d 1330 (Md. 1982) (personal injuryaction). It is a defendant's burden to ensure the foundation has beenlaid 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 economicevidence for an upward adjustment of a damage calculation, forexample an adjustment for inflation. Lewin Realty III , 771 A.2d at477. No instruction to modify the value of the award can be given,however, if there is no testimony in the case to support it. Baublitzv. 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 recoveryof all provable damages, ―regardless of the amount ofcompensation which the person has received for his injuries fromsources 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 andJudicial Proceedings § 11-108, governs the statutory cap onnoneconomic damages related to personal injury or wrongful deathclaims. Effective October 1, 1994, the cap on noneconomic damagesin personal injury cases was raised to $500,000 and the cap was also



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amended to apply to wrongful death cases. The cap has increased$15,000 per year since October 1, 1995. The effective date for theMaryland Cap Statute is when a cause of action arises. A cause ofaction arises when the facts to support each element of the cause ofaction exist and not when the cause of action is discovered. The

burden of proof to show that the statutory cap is inapplicable rests withthe plaintiff. John Crane, Inc. v. Scribner , 800 A.2d 727, 742 (Md.2002). The cap is inapplicable to intentional torts and punitivedamages.

2. Medical Injury Cap. The Maryland Patients' Access to QualityHealthcare Act of 2004 provides that an award of noneconomicdamages for a cause of action arising between January 1, 2005 andDecember 31, 2008 may not exceed $650,000. Since January 1, 2009,the limitation on noneconomic damages increases annually byincrements of $15,000. Md. Code Ann., Cts. & Jud. Proc. § 3 -2A-09.

3. Physical pain and suffering. Physical or bodily pain and sufferingmay constitute a proper element of damages and in awarding suchdamages, a jury may take into consideration the effect on the health ofthe person injured, the future effect on the health of the person injured,and any resulting inconvenience that person may suffer. BaltimoreCity Passenger Ry. Co. v. Kemp , 61 Md. 74 (1883).

4. Disfigurement. Disfigurement may be considered as an element ofdamages 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 emotionaldistress 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 mayaward punitive damages only upon a showing of actual malice, pleadand proven by clear and convincing evidence. French v. Hines , 182Md. App. 201, 248-49, 957 A.2d 1000 (2008). The Maryland Court ofSpecial Appeals has defined actual malice as, ―an act ‗intentionally

performed without legal justification or excuse, but with an evil orrancorous motive influenced by hate, the purpose being to deliberatelyand willfully injure the plaintiff.‘‖ Id. at 249 (quoting Shoemaker v.Smith , 353 Md. 143, 163, 725 A.2d 549 (1999) (internal quotationsomitted)). Actual malice encompasses only conscious and deliberatewrongdoing 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



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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 thedefendant consciously or deliberately disregarded the potential harm to

consumers. See Bowden v. Caldor, Inc. , 710 A.2d 267, 276-77 (Md.1998).


a. Compensatory Damages for Bodily Injury MPJI-Cv 10:2

In an action for damages in a personal injury case, you shallconsider the following:

(1) The personal injuries sustained and their extent andduration;

(2) The effect such injuries have on the overall physical andmental health and well-being of the plaintiff;

(3) The physical pain and mental anguish suffered in the past and which with reasonable probability may beexpected to be experienced in the future;

(4) The disfigurement and humiliation or embarrassmentassociated 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 orreduction in earning capacity which with reasonable

probability may be expected in the future.

In awarding damages in this case you must itemize your verdict oraward to show the amount intended for:

(1) The medical expenses incurred in the past;

(2) The medical expenses reasonably probable to beincurred in the future;

(3) The loss of earnings and/or earning capacity incurred inthe past;

(4) The loss of earnings and/or earning capacity reasonably probable to be expected in the future;



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(5) The ―Noneconomic Damages‖ sustained in the past andreasonably probable to be sustained in the future. Alldamages which you find for pain, suffering, pre-impactfright, 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 forthe injuries (losses) suffered, you may go on to consider whether tomake an award for punitive damages. A claim for punitivedamages 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 othersfrom similar conduct.

(2) Proportionate to the wrongfulness of the defendant'sconduct and the defendant's ability to pay.

(3) But not designed to bankrupt or financially destroy adefendant.

c. Third Party’s Liability to Parent for Tortious Injury toChild MPJI-Cv 21:6

A person who injures a child is responsible to the child‘s parent forthe parent's loss of the child‘s services and the parent's expensesincurred in treating the child until the child attains the age ofeighteen or is otherwise emancipated. The parent may not recoverfor the pain and suffering sustained by the child.

d. Third Party’s Liability to Parent for Child’s ServicesMPJI-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 beenemancipated.


I. Wrongful Death of a Minor (who may sue)



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A tortious injury to a minor child gives rise to a cause of action for thechild, brought on behalf of the child by a parent, guardian, or next friend, forinjuries 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 , 410Md. 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) providetwo 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 thedeath of the victim, and a survival action measures the harm to the victim after theinjury 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 basedupon the victim‘s pre -tort life expectancy and may take intoconsideration the decedent‘s age, health, and occupation, and thecomfort and support afforded his or her family at the time of death.Damages for loss of future earnings are not recoverable in a survivalaction 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 beneficiariesmay recover, in addition to pecuniary loss, solatium damages formental anguish, emotional pain and suffering, loss of society,companionship, comfort, protection, marital care, parental care, filialcare, attention, advice, counsel, training, guidance or education whereapplicable. Md. Code Ann., Cts. & Jud. Proc. § 3 -904(d). Thestatutory cap on noneconomic damages applies to wrongful deathactions. 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 awrongful death action because the rights of the plaintiff in such anaction 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).



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4. Pre-Impact Fright. The victim's estate may recover pre-impactfright damages in a survival action because the victim would beentitled to recover such damages had he or she survived. See

generally University of Maryland Med. Sys. Corp. v. Malory , 795 A.2d107 (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 adequatelycompensate each parent as a result of the death of their child youshall 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 thedeceased 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 willexperience in the future.



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2. Hedonic Damages . While loss of enjoyment of life is an element ofhedonic damages that is recoverable in a minor‘s personal injuryaction, loss of enjoyment of life is not available to plaintiffs who arenot 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 ashowing that the plaintiff has actually experienced or will actuallyexperience that item of damages in the future. Consistent with thatapproach is the [Massachusetts court‘s] conclusion that to be entitledto this item of damage, the plaintiff must possess a cognitiveawareness of his loss.‖). In addition, to the extent that various aspectsof hedonic damages overlap ( i.e. , to the extent that the categories of

pain and suffering or permanent disability overlap with loss ofenjoyment of life experiences), duplicative damages must be avoided.

Id.

3. Disfigurement . The right of a minor to recover for disfigurement issettled 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 recoverableexpense. See Mirageas v. Massachusetts Bay Transp. Authority , 391Mass. 815 (1984).

5. Punitive Damages . Except where authorized by statute, punitivedamages are not recoverable in a negligence or breach of warrantyaction. International Fidelity Ins. Co. v. Wilson , 387 Mass. 841, 856 n.

20, 443 N.E.2d 1308, 1317 n. 20 (1983). However, punitive damagesare recoverable under G.L. c. 93A, the Massachusetts ConsumerProtection Act, which encompasses claims for breach of warranty.The statute allows for double or treble damages when the defendant‘sconduct has been willful and knowing. Recovery under c. 93A isdecided by the Court, often with an ―advisory‖ but not binding verdictfrom the jury.

6. Emotional Distress . Recovery for emotional distress in personalinjury cases is permissible, but absent a physical injury, emotionaldistress recovery is limited to cases where defendant‘s conduct wasextreme and outrageous and was either intentional or reckless. Agin v.

Howard Johnson Co. , 371 Mass. 140 (1976). In a claim of negligentinfliction of emotional distress, proof of some physical manifestationof the emotional distress is required such that the existence of theemotional distress can be verified by objective evidence. Payton v.

Abbott Labs , 386 Mass. 570 (1986).



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Any scarring or disfig urement caused by the defendant‘snegligence, 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 tocompensation for physical and mental pain and suffering that the plaintiffhas actually experienced and will experience in the future.


Because a parent is legally obligated to provide medical care to a minor upuntil the age of majority, the recovery for medical expenses incurred as the resultof an injury to a child rests with the parent to the extent such medical expenseshave 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 wouldthereafter be responsible for his own medical expenses. See Restatement, Second,Torts, § 703(b) (Right of recovery for medical expenses suffered by a minor restswith 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 recoverfor 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 ofthe particular damages sought and recovered will govern who is entitled torecover for the damages.

Recovery under the wrongful death statute for the ―fair monetary value ofthe decedent to the persons entitled to recover‖ as compensation for the loss of thereasonably expected net income, services, protection, care, assistance, society,companionship, comfort, guidance, counsel, and advice of the decedent‖ islimited to those persons entitled to recover under M.G.L. c. 229, § 1 (the intestacystatute) regardless of whether the decedent had a will, and awards are made

individually for each person entitled to recover. In other words, the intestacystatute will govern w hich individuals are ―presumptive takers‖ entitled torecovery for such wrongful death damages, but will not govern how the award isto be distributed as this determination will be made individually by the jury basedupon 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 recoverunder wrongful death statute, but the recovery is for each individual entitled to



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recover based on individual losses and is distributed in accordance with individualfindings 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 deathaction, 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 thedecedent‘s estate and will be distributed according to the decedent‘s will or perthe intestacy statute if the decedent dies intestate. See, e.g., Burt v. Meyer , 400Mass. 185 (1987) (punitive damages are recovered for estate) and Poyser v.United States , 602 F Supp. 436 (D. Mass. 1984) (recovery for conscious pain andsuffering of a decedent is for the benefit of the decedent‘s estate).

1. Funeral, Medical and Other Related Expenses . Funeral, medical, orother related expenses incurred by or for the deceased as a result ofsuch 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 thedecedent‘s reasonably expected net income are recoverable under thewrongful death statute for amounts that the decedent would haveearned to the extent that those entitled to recover under the intestacystatute 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 beno recovery for the loss of earning capacity of the decedent when thedecedent is a minor.

3. Services, Protection, Care and Assistance . A person entitled torecover under the wrongful death statute is also entitled to recover thefair monetary value of any services, protection, care or assistance thata minor provides. M.G.L. c. 229, § 2. This type of recovery would bemore likely than a recovery for loss of earnings as a parent wouldmore often be dependent upon a minor for services or assistance thanfor reasonably expected net income. See, e.g., Poyser v. United States ,602 F. Supp. 436 (1984) (a wrongful death action, mother of decedententitled to recover value of services that decedent minor providedthrough babysitting younger siblings).

4. Loss of Society, Companionship, Comfort, Guidance, Counsel, andAdvice . The wrongful death statute provides for recovery by thoseentitled to recover under the intestacy statute for the fair monetaryvalue of the society, companionship, comfort, guidance, counsel andadvice 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



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recoverable by the estate, to be distributed in accordance with thedistribution of the assets of the estate. Poyser v. United States , 602 FSupp. 436 (D. Mass. 1984).

6. Punitive Damages . Punitive damages in a wrongful death case arerecoverable in an amount of not less than five thousand dollars in suchcase a s the decedent‘s death was caused by the malicious, willful,wanton, or reckless conduct of the defendant or by the grossnegligence of the defendant. See M.G.L. c. 229, § 2. Such a recoverywill be for the estate of the decedent and will be distributed inaccordance with the proper distribution of the assets of the estate. Burtv. Meyer , 400 Mass. 185 (1987).

7. Loss of Enjoyment of Life . Under M.G.L. c. 229, § 2, damages arenot recoverable for the loss of the decedent‘s life itself. See Keene v.

Brigh am & Women’s Hospital, Inc. , 56 Mass. App. Ct. 10, 27-28(2002).

8. Grief, anguish and bereavement . Grief, anguish and bereavement ofsurvivors 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 ofdamages if you find that the defendant was negligent and that the

defendant‘s negligence was a proximate cause of the decedent‘s death. Ifyou find that the plaintiff is entitled to damages, then, as with all the otherelements, the plaintiff bears the burden of proving [his/her] damages by afair preponderance of the evidence. The purpose of the law in awardingdamages is to reasonably and fairly compensate for the losses incurred

because of another‘s negligent conduct. Recovery for wrongful deathrepresents damages to the survivors for the loss of value of the decedent‘slife.

There is no special formula under the law to assess the plaintiff‘sdamages.

It is your obligation to assess what is fair, adequate and just based on theevidence presented to you. You must use your wisdom and judgment totranslate into dollars and cents the amount which will fully, fairly, andreasonably compensate the next of kin for the death of the decedent.



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MICHIGANDarren VanPuymbrouck

Deborah Bone

Schiff Hardin LLPChicago, Illinois(312) 258-5500

Dama ges Recoverable in a Minor’s Personal Injury Action


Michigan law does not limit the amount of compensation available foreconomic damages. See MICH . COMP . LAWS § 600.2946a. Availableeconomic 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 plaintiffhas 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 suitto recover parents‘ loss of services and expenses incurred. SeeGumienny v. Hess , 280 N.W. 809, 810 (Mich. 1938).


Michigan law limits compensation for noneconomic losses in a productsliability action to $280,000. M ICH. COMP . LAWS § 600.2946a (2011). Ifthe 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 factdetermines by a preponderance of the evidence that the loss was the resultof the defendant‘s gross negligence. Id. Available noneconomic damagesinclude 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 alsorecoverable. Beath v. Rapid R. Co , 78 N.W. 537, 540 (Mich. 1899);Grenawalt v. Nyphuis , 55 N.W.2d 736, 741 (Mich. 1952).



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2. Disability and Disfigurement. Minor‘s disability and disfigurementis 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 ascompensation 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 awardexemplary damages, the trier of fact must find the defendant‘s conductto be malicious or so willful and wanton as to demonstrate a recklessdisregard of plaintiff's rights; negligence is not sufficient to recoverexemplary damages. See Veselenak v. Smith , 327 N.W.2d 261, 265(Mich. 1982).


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 dutyto determine the amount of money which reasonably, fairly andadequately compensates [him / her] for each of the elements ofdamage which you decide has resulted from the [negligence /

professional negligence or malpractice] of the defendant, takinginto account the nature and extent of the injury.

You should include each of the following elements of damagewhich you decide has been sustained by the plaintiff to the presenttime:

[Here insert the appropriate elements of damage, such as: M Civ JI50.02 Pain and Suffering, Etc.; M Civ JI 50.03 Disability andDisfigurement; M Civ JI 50.04 Aggravation of Preexisting Ailmentor Condition]

You should also include each of the following elements of damagewhich you decide plaintiff is reasonably certain to sustain in thefuture:

[Reinsert applicable elements of damages as specified above.]

If any element of damage is of a continuing nature, you shalldecide how long it may continue. *(If an element of damage is



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permanent in nature, then you shall decide how long the plaintiff islikely to live.)

Which, if any, of these elements of damage has been proved is foryou to decide based upon evidence and not upon speculation, guess

or conjecture. The amount of money to be awarded for certain ofthese 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 JI50.02

… the [Insert applicable element(s).] *(physical pain andsuffering) *(mental anguish) *(fright and shock) *(denial of social

pleasure and enjoyments) *(embarrassment, humiliation ormortification)

c. Element of Damage – Disability and Disfigurement M CivJI 50.03.

… the *(disability including the loss or impairment of [Describe.])*(and the) *(disfigurement of [Describe.])

d. Element of Damage – Aggravation of Preexisting Ailmentor Condition M Civ JI 50.04.

… the *(increase in [Describe.] arising fr om 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, treatmentand 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 theage of eighteen)

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



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Under Michigan common law, parents of an injured minor have the rightto recover the loss of services and expenses incurred as a result of the minor‘sinjury. See Gumienny v. Hess , 280 N.W. 809, 810 (Mich. 1938).

If the minor‘s injury involved an automobile accident, however, the minormay 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 .‖ MICH. COMP . LAWS § 500.3112. The statuteconfers a cause of action on the injured party to collect medical and otherexpenses 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).


I. Wrongful Death of a Minor (who may bring suit) Under Michigan law, the deceased minor‘s parents, grandpa rents, orsiblings may bring a wrongful death claim for damages suffered. M ICH. COMP . LAWS § 600.2922(3). In the event none of these persons survivethe deceased minor, then any person to whom the estate of the deceasedwould pass under the laws of intestate succession may bring suit. Id.


Economic Damages:

1. Medical and Burial Expenses . Michigan statute provides for thecompensation of medical, funeral, and burial expenses. M ICH. COMP . LAWS § 600.2922(6).

2. Loss of Support of Services . Michigan statute provides forcompensation 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 atleast as great as the amount expended by the parent on the child'ssupport, maintenance, and education.‖).

Noneconomic Damages:

In wrongful death suits arising from a products liability action, the amountof damages for noneconomic losses is limited to $500,000.00. M ICH . COMP . LAWS § 600.2946a. This limitation does not apply where the trierof fact determines by a preponderance of the evidence that the loss was the



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result of the defendant‘s gross negligence. Id. Available noneconomicdamages include compensation for:

1. Pain and Suffering . Michigan statute provides for the compensationof 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 forthe compensation for the loss of the society and companionship of theminor. Id. In order to award compensation for the loss of society andcompanionship, the claimant must show a family relationship fromwhich damages for the loss of the child‘s society and companionshipcould result. McTaggart v. Lindsey , 509 N.W.2d 881, 884 (Mich. Ct.App. 1993).

3. Punitive and/or Exemplary Damages . Michigan does not permit theaward 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).

III. Model Jury Instruction:

Wrongful Death – Damages M Civ JI 45.02.

If you decide the plaintiff is entitled to damages, you shall givesuch amount as you decide to be fair and just, under all thecircumstances, to those persons represented in this case. Suchdamages may include the following items, to the extent you findthey have been proved by the evidence:

1. *(reasonable medical, hospital, funeral and burialexpenses)

2. *(reasonable compensation for the pain and sufferingundergone by [name of decedent] while [he / she] wasconscious 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;



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b. loss of service, which shall be at least as great asthe amount spent by the pare nt on the child‘ssupport, 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 foryou 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 precisedollar amount. The law leaves such amount to your sound judgment. Your verdict must be solely to compensate for thedamages and not to punish the defendant.



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MINNESOTAJohn S. Monical

Christina MermigasLawrence, Kamin, Saunders & Uhlenhop, LCC

Chicago, Illinois

(312) 372-1947

Damages Recover able in a Minor’s Personal Injury Action


1. Medical Expenses. Costs of medical supplies, hospital services, andhealth 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 servicesup to the date of trial and the loss of future services reasonably certainto be lost up to the age of 18 are recoverable by the parent. CIVJIG91.55. The loss of the child‘s working time and the reduction of thechild‘s future earnings capacity reasonably certain to be lost up to theage 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, whichdoes not require specific proof of actual earnings either before or afterthe injury. Kwapien v. Starr , 400 N.W.2d 179 (Minn. Ct. App. 1987).Recovery for future loss of earning capacity is based on factorsincluding the plaintiff‘s age, health, skill, training, experience, workhabits, length of loss of earnings capacity, and years of earningscompared 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 futuredamages for disability, disfigurement, and embarrassment arerecoverable. CIVJIG 91.10, 91.25. These damages are taken under theconsideration of the inflationary trend of the economy. Dawydowycz v.Quady , 220 N.W.2d 478 (Minn. 1974). The jury should consider thenature, extent, and severity of the injuries in determining the amountof disfigurement damages, and the Minnesota Supreme Court has notand cannot set a limit to these damages. Id.

2. Loss of Life Expectancy . Loss of life expectancy and the effect thatthe injury has had on the minor child‘s enjoyment of amenities of life



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In answering question(s) __, __, __, and __, you are to decide theamount 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 evidenceshows 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 considerwhether (plaintiff) has received or may receive payment from othersources.]

c. Damages — Burden of Proof - Definition of ―burden ofproof‖ 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, andaward only the present cash value. This is called ―adjusting,‖ andis based on inflation and the fact that invested money earnsinterest.

Steps in adjustingThe 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 intoday‘s dollars. In doing this, you may also considerwhether 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]

http://www.westlaw.com/Link/Document/FullText?findType=Y&pubNum=111038&cite=MINNPRACJURYINSTRGUIDESCIVILs91.10&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Default)
















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[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 adjustedYou 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 andMental Harm - Past damages for bodily and mental harmCIVJIG 91.10

Items to include for past damages for bodily and mental harm:1. Pain2. Disability3. [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 notnecessarily decided on a daily or hourly basis.

Factors to consider. You should consider:1. The type, extent, and severity of the injuries2. How painful the injuries were3. The treatment and pain involved in that treatment4. The length of time the injury or harm lasted5. Any other factors you think are relevant.

[No consideration of other sources of payment. Do not considerwhether (plaintiff) has received or may receive payment from othersources.]



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f. Items of Personal Damage - Past damages for health careexpenses CIVJIG 91.15

Past damages for health care expenses may include:1. Medical supplies

2. Hospitalization3. Health care services of every kind necessary fortreatment up to the time of your verdict.[Include the reasonable value of the services of attendants ifneeded for name) ‘s care.] [Determine the amount for diagnostic x-rays separately.]

g. Items of Personal Damage - Past damages for loss ofearnings CIVJIG 91.20

Past damages for loss of earnings may include:

1. Earnings2. Salary3. Value of working time lost as a result of the injury, fromthe 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) ‘slost working time.]

h. Items of Personal Damage - Future damages for bodily andmental harm CIVJIG 91.25

Future damages for bodily and mental harm may include:1. Pain2. 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 notnecessarily decided on a daily or hourly basis.

Factors to consider. You should consider:1. The type, extent, and severity of the injuries2. How painful the injuries are3. The treatment and pain involved in that treatment4. The length of time the injury or harm is likely to last5. Any other factors you think are relevant.



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i. Items of Personal Damage - Parent’s Damages for Injury toChild 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, hospitalservices, and health care services necessary in caring forthe child2. The loss of (child) ‘s services the (father) (mother) wouldhave received up to the date of trial3. The value of the child‘s working time lost as a result ofthe injury from the time of injury to date

[Do not consider the fact that (child) actually received his or hersalary for all or part of the time in deciding lost value of the

earning capacity.]4. The value of the services the (father) (mother) isreasonably certain to lose in the future until (child) reachesthe age of 18 years5. The value of the loss or reduction of (child) ‘s futureearning capacity the (father) (mother) is reasonably certainto experience until (child) reaches the age of 18 years.

Parent‘s future damages for the loss or reduction of a child‘searning capacity. In deciding the amount of future damages for theloss or reduction of the child‘s future earning capacity until age 18,you should consider:

1. Age2. Health3. Skill4. Training5. Experience6. Work habits7. Length of loss of earning capacity (temporary or

permanent) .

*Note on Use - If the child reached the age of 18 years or wasemancipated before trial, recovery is limited to that date. If theevidence shows the child has been emancipated or could beemancipated before reaching the age of 18 years, this factor must

be added to the instruction in limiting the period of time for whichthe parent can recover future damages. An instruction onemancipation of a minor should also be given if the evidence raisesa fact question on this issue.



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See Authorities to CIVJIG 91.20, concerning loss of earnings,CIVJIG 91.30, dealing with future medical expenses, and CIVJIG91.35, 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 earningcapacity of (name of child) that (he) (she) is reasonably certain tolose after (he) (she) reaches age 18.

In deciding the amount of future damages, you should consider:1. Age2. Health3. Skill4. Training

5. Experience6. Work habits7. 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 beenemancipated or is likely to be emancipated before the age of 18years, this factor must be added to the instruction in fixing the

beginning of the period of the loss or impairment of future earningcapacity. An instruction on emancipation of a minor should also begiven if the evidence raises a fact question as to this issue.

k. Items of Personal Damage - Child’s damages for healthcare expenses CIVJIG 91.65

Damages for health care expenses may include:1. Medical supplies2. Hospitalization3. 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 ifneeded for (name of child) ‘s care in the future.]

*Note on Use - If the child reached the age of 18 years or wasemancipated before trial, recovery is for the period from that date.











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The parent has the right to recover past and future damages for medicalexpenses of an injured minor up to the age of 18. CIVJIG 91.55. The minor hasthe 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 recoverableexcept those suffered by the child. To such extent, the minor has no right torecover medical expenses or lost time for his or her own injuries. Instead, thechild‘s parent has the right to recover those medical expenses during the minorityof 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 broughton behalf of the minor child, the judgment is a bar to subsequent actions by thechild, 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 omissionof another, the trustee appointed pursuant to the statute to prosecute the actionmay maintain an action for the death if the decedent might have maintained anaction, had the decedent lived, for an injury caused by the wrongful act oromission. Minn. Stat. § 573.02. Once the trustee is appointed, the trustee has theexclusive right to maintain the action or to negotiate a settlement for the benefit ofthe next of kin. In re Appointment of Trustee for Heirs of Bodeker , 661 N.W.2d271 (Minn. Ct. App. 2003). If an action for the injury was commenced by thedecedent and not finalized while the decedent was living, the action may becontinued by the trustee for recovery of damages for the exclusive benefit of thenext 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 jurydeems fair and just in reference to the pecuniary loss resulting from the death andthat is of the exclusive benefit of the next of kin or surviving spouse,

proportionate to the pecuniary loss severally suffered by death. M INN . STAT . §573.02 (1).

Economic Damages:

1. Money Value of Damages or Pecuniary Loss. Although the Minnesotawrongful death act provides for the re covery of ―pecuniary loss‖,



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Minnesota does not use that term in its pattern jury instructions. CIVJIG91.75; Muehlhauser v. Erickson, 621 N.W.2d 24 (Minn.Ct.App. 2000).The jury instruction refers instead to the ―money that will fairly andadequately comp ensate 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 lossthat has monetary value. Ferguson v. Orr , 427 N.W.2d 732 (Minn. Ct.App. 1988).

2. Medical Expenses. ―Reasonable expenses for support due to the lastsickness, including necessary medical and hospital expenses incurred afterand 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 includedin the factors to consider for calculating pecuniary loss. CIVJIG 91.75.

Along with support/aid that the decedent would have provided, funeralexpenses are the first damages deducted and paid to the minor child undermonetary judgments of a wrongful death claim. Minn. Stat. § 573.02.

4. Loss of Past and Future Earnings . The factors considered indetermining pecuniary loss specifically include past earnings and likelyfuture earnings capacity, as well as past contributions, life expectancy,health, age, habits, talents and success, occupation, and personal livingexpenses. 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, andsuccess; occupation; personal living expenses, obligation to supportchildren 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 ifshe had lived).

5. Special Damages. In addition to the above, ‗special damages‘ arising outof the injury causing death are recoverable if the minor could have

pursued these claims. Special damages have been defined by theMinnesota courts to mean damages ―which are the natural, but not thenecessary and inevitable result of t he 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).



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Non-economic Damages :

1. Loss of Support and Companionship. ―Counsel, guidance, and aid‖ and―advice, comfort, assistance, companionship, and protection‖ that wouldhave been given if the minor had lived are included within the factors

considered in calculating pecuniary damages. CIVJIG 91.75; Youngquistv. 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. Punitive Damages. In appropriate cases, punitive damages are availablein wrongful death cases. M INN. STAT . § 573.02.


a. Measure of Damages - Wrongful Death - Money value ofdamages CIVJIG 91.75

When you consider damages for (claimant)(s) , determine anamount of money that will fairly and adequately compensate(claimant)(s) for the losses (he) (she) (they) suffered as the resultof this death.

You should consider what (name of deceased) would have provided to the (claimant)(s) if (he) (she) (they) had lived.Factors to consider. You should consider:

1. (His) (Her) contributions in the past2. (His) (Her) life expectancy at the time of (his) (her) death3. (His) (Her) health, age, habits, talents, and success4. (His) (Her) occupation5. (His) (Her) past earnings6. (His) (Her) likely future earning capacity and prospectsof bettering (himself) (herself) had (he) (she) lived7. (His) (Her) personal living expenses (cost of supportingthe child)8. (His) (Her) legal obligation to support the (surviving

spouse) (next of kin) and the likelihood that (he) (she) would have fulfilled that obligation9. 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 andhospital expenses incurred after and as a result of theinjuries causing death



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10. [The probability of (name of decedent) ‘s paying thedebt owed by ________ to ________]11. The counsel, guidance, and aid (he) (she) would havegiven (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 tosurvive together. You should compare the life expectancy of (nameof decedent) with the life expectancy of each claimant.

Take into account only the amount of time the two being comparedwould be expected to survive together.

Base your money damages for each claimant on the shorter lifeexpectancy 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 andthe next of kin], or3. [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) (hascollected) insurance or workers‘ compensation benefits

because of (name)‘s death], or 3. [The surviving spouse has remarried], or4. [The minor children have been emancipated], or5. [There is no legal obligation to support the next of kin].



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You must determine the total amount of money that will fairly andadequately compensate the (claimant)(s) for the damages sufferedas the result of this death.

[I will divide the damages among the (claimants) .]

b. Life Expectancy Tables - Calculate life expectancy CIVJIG91.85

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 expectancyof (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 longeror shorter period than that given in these tables.

Consider this figure along with evidence of the health, physicalcondition, habits, occupation, and surroundings of (name) andother 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) actedwith deliberate disregard for the rights or safety of others, you canaward (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 withdeliberate 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.



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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 ofothers, and2. Deliberately acted

a. with conscious or intentional disregard, or b. with indifference to the high probability of injuryto the rights or safety of others.

Factors to consider for punitive damages

If you decide to award punitive damages, consider, among otherthings, the following factors:

[1. The seriousness of the hazard to the public that mayhave 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 inanother state][2. The profit (defendant) made as a result of themisconduct][3. The length of time of the misconduct and if (defendant)it][4. The amount (defendant) knew about the hazard and ofits danger][5. The attitude and conduct of (defendant) when themisconduct was discovered][6. The number and level of employees involved in causingor hiding the misconduct][7. The financial state of (defendant)][8. The total effect of other punishment likely to beimposed on (defendant) as a result of the misconduct. Thisincludes compensatory and punitive damage awards to(plaintiff) and other persons][9. The severity of any criminal penalty (defendant) mayget].

* Note on Use - This instruction should only be given once it has been decided by the judge or the jury that plaintiff is entitled tocompensatory damages.



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MISSISSIPPISean W. ShirleyMark E. Bond

Balch & Bingham LLPBirmingham, Alabama

(205) 251-8100



1. Medical and Other Related Expenses . Medical, or other relatedexpenses incurred as a result of such wrongful or negligent act oromission or breach of warranty are recoverable. Medical expensesinclude the cost of medicine, cost of initial medical treatment, cost ofhospitalization, cost of surgical procedures, cost of follow-up medicaltreatment, 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 orWage-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 aseparate element of damages apart from pain and suffering damages,and there shall be no instruction given to the jury which separates lossof enjoyment of life from pain and suffering. The determination of theexistence and extent of recovery for pain and suffering and loss ofenjoyment of life shall be a question for the finder of fact, subject toappellate review, and the monetary value of the pain and suffering andloss of enjoyment of life shall not be made the subject of experttestimony. Miss. Code Ann. § 11-1-69.

2. Disfigurement . The right to recovery for disfigurement is settledunder 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 recoverableexpense. See Woods v. Nichols , 416 So. 2d 659, 671 (Miss. 1982).



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4. Punitive Damages . Miss. Code Ann. § 11-1-65. Punitive damagesmust be shown by clear and convincing evidence that the defendantagainst whom punitive damages are sought acted with actual malice,gross negligence which evidence willful, wanton or reckless disregardfor the safety of others, or committed actual fraud. Miss. Code Ann. §

11-1-65(1)(a). Furthermore, the trier of fact shall first determinewhether compensatory damages are to be awarded and in whatamount, 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 trialcourt shall ascertain that the award is reasonable in its amount andrationally related to the purpose to punish the actions of the injuring

party considering the following factors: (1) whether there is areasonable relationship between the punitive damage award and theharm likely to result from the defendant‘s conduct as well as the harm

that actually occurred; (2) the degree of reprehensibility of thedefendant‘s conduct, the duration of that conduct, the defendant‘sawareness, any concealment, and the existence or frequency of similar

past conduct; (3) the financial condition and net worth of thedefendant; and (4) in mitigation, the imposition of criminal sanctionson the defendant for its conduct and the existence of other civil awardsagainst the defendant for the same conduct. Miss. Code Ann. § 11-1-65(1)(f). In any civil action where entitlement to punitive damages isestablished, no award of punitive damages shall exceed the statutorycaps provided for in Miss. Code Ann. § 11-1-65(3).

5. Emotional Distress . If there is outrageous conduct, no injury isrequired for recovery for intentional infliction of emotional distress ormental anguish. One who claims emotional distress need only showthat the emotional trauma claimed was a reasonably foreseeableconsequence of the negligent or intentional act of another. If theconduct is not malicious, intentional or outrageous, there must be somesort of demonstrative harm, and said harm must have been reasonablyforeseeable by the defendant. See Adams v. U.S. Homecrafters, Inc .,744 So. 2d 736, 743-44 (Miss. 1999).


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, youmust confine your verdict to reasonable compensation for the injuriesactually sustained, if any, by the plaintiff as a result of _______ (specifywrongful act or conduct in question). Plaintiff‘s reasonable compensation,



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if any, does not include attorney‘s fees, nor does it allow a monetaryaward which constitutes a penalty against the defendant, nor are youlimited by the estimates of damages made by the attorneys representingthe 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 ormental problem that is not related to an injury the plaintiff might havesuffered as a result of _______ (specify wrongful act or conduct inquestion).

b. Negligence – Professional Malpractice. Miss. Civ. Jury InstructionCompanion Handbook § 6:6 – Instruction P-5. pg. 328-329 (2011-2012).

―If you find by a preponderance of the evidence in this case and underinstructions of law previously given to you that Defendants [hospital ororganization], collectively or individually are liable for the injuriessuffered by [Plaintiff] then you must return a verdict in favor of the

Plaintiff in the amount which will reasonably compensate him for hisdamages.

These damages are called compensatory damages and are awarded for the purpose of making [Plaintiff] whole again in so far as a money verdict canaccomplish that purpose.

In determining the amount of damages to be awarded to [Plaintiff] youmay consider and award monetary damages for the following:

1. [Plaintiff‘s] past and future mental and emotional distress; 2. [Plaintiff‘s] past physical p ain and suffering;3. [Plaintiff‘s] past medical expenses incurred; 4. [Plaintiff‘s] loss of enjoyment of life; 5. [Plaintiff‘s] scarring and physical disfigurement.‖

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

Mississippi imposes a legal obligation upon both parents to pay for theirchild‘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 of1972 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 evidencethat such bills so paid or incurred were necessary and reasonable.

A minor child is not legally liable for his or her medical expenses, andrecovery for medical expenses associated with a child‘s injury are properlyrecoverable by his or her parents. See Cook v. Children’s Med. Group , 756 So. 2d734, 740 (Miss. 1999). In the event a minor child has a cause of action for



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injuries sustained by the negligent or wrongful conduct or another, the parents ofthe minor child have a derivative claim to recover any medical expenses paid bythem on behalf of their minor child. Stated differently, the parent may bring acause of action individually or as next friend of his or her minor child. SeeClardy 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 theminor child will be allowed to recover medical expenses. See Cook , 756 So.2d at740.


Survival claims described in Miss. Code Ann. § 11-7-13, the wrongful-death statute, are by specific statutory language, limited to damages which adeceased 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, orother related expenses incurred by or for the deceased as a result ofsuch wrongful or negligent act or omission or breach of warranty arerecoverable. See Miss. Code Ann. § 11-7-13.

3. Life Expectancy . Present Net Cash Value of the Work LifeExpectancy of the Decedent is recoverable. This figure represents thetotal earnings the Deceased would have realized throughout his/herlifetime, based on average life expectancy, reduced to present valueand reduced further by the amount which the Decedent would havespent 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 andCompanionship 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 beneficiariesare entitled to claim their respective claims for loss of society andcompanionship. See Bridges v. Enter. Prods. Co ., 551 F. Supp. 2d549, 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



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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 damagesmust 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 disregardfor the safety of others, or committed actual fraud. Miss. Code Ann. §11-1-65(1)(a). Furthermore, the trier of fact shall first determinewhether compensatory damages are to be awarded and in whatamount, 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 trialcourt shall ascertain that the award is reasonable in its amount andrationally related to the purpose to punish the actions of the injuring

party considering the following factors: (1) whether there is areasonable relationship between the punitive damage award and theharm likely to result from the defendant‘s conduct as well as the harmthat actually occurred; (2) the degree of reprehensibility of thedefendant‘s conduct, the duration of that conduct, the defendant‘sawareness, any concealment, and the existence or frequency of similar

past conduct; (3) the financial condition and net worth of thedefendant; and (4) in mitigation, the imposition of criminal sanctionson the defendant for its conduct and the existence of other civil awardsagainst the defendant for the same conduct. Miss. Code Ann. § 11-1-65(1(f). In any civil action where entitlement to punitive damages isestablished, no award of punitive damages shall exceed the statutorycaps provided for in Miss. Code Ann. § 11-1-65(3).

5. Loss of Enjoyment of Life . When the Mississippi Legislatureenacted, Miss. Code Ann. § 11-1-69(2), the section flatly rejected theawarding of hedonic damages in a wrongful death lawsuit. In anywrongful death action, there shall be no recovery for loss of enjoymentof 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 enlargedon account of the horror and terrible shock of a tragedy. Bridges v.

Enter. Prods. Co. , 551 F. Supp. 2d 549 (S.D. Miss. 2008).



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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 wrongfuldeath beneficiaries of [the decedent], Deceased, you are instructed that theform of the verdict should be as follows:

‗We the jury find for [Plaintiff], individually and on behalf of thewrongful 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]; and4. $_______ 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 formof your verdict should be as follows:

‗We the jury find for the [Defendant company].‘‖



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MISSOURIKara T. Stubbs

Jonathan E. BenevidesBaker Sterchi Cowden & Rice, LLC

Kansas City, Missouri

(816) 471-2121



1. Medical and Other Related Expenses. Medical and other relatedexpenses incurred as a result of a wrongful or negligent act arerecoverable. See e.g. Sommers v. Hartford Acc. & Indem. Co. , 277S.W.2d 645 (Mo.App.1955); Butler v. Metropolitan Street Ry. Co., 93S.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 earningcapacity in a minor during minority is a loss to his parents whoare 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 mayrecover for his/her impairment of earning capacity afterattaining majority. Farmers Elevator Co. , 147 S.W.2d at 601.


1. Hedonic Damages. In any civil action for personal injury there may bea 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).

2. Disfigurement. Missouri‘s medical malpractice statute defines non -economic damages that are recoverable as damages arising from non-

pecuniary harm including, without limitation, pain, suffering, mentalanguish, inconvenience, physical impairment, disfigurement, loss ofcapacity 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-economicdamages. RSMo. § 538.205(7).

4. Punitive Damages. Punitive damages may be awarded for conductthat is outrageous, because of the defendant's evil motive or reckless



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indifference to the right s of others.‖ Burnett v. Griffith , 769 S.W.2d780, 789 (Mo. banc 1989). It is not the commission of the tort thatmatters, but the conduct or motive that provides the basis for punitivedamages. 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)) . Punitivedamages are so extraordinary and harsh that reckless indifference must be proven by clear and convincing evidence. Id. Thus, to make asubmissible case for punitive damages, it must be proven by clear andconvincing 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 beenmade whole for his injuries by compensatory damages, so punitivedamages should only be awarded if the defendant‘s culpability, after

having paid compensatory damages, is so reprehensible to warrant theimposition 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 directvictim of the defendant's negligence and seeks damages for emotionaldistress, the plaintiff is required to prove two additional elements: (1)the defendant should have realized that his conduct involved anunreasonable risk of causing the distress and (2) the emotional distressor mental injury must be medically diagnosable and must be ofsufficient 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 satisfiedupon demonstration of any medically provable mental distress orharm.‖ 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 todetermine 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 asyou believe will fairly and justly compensate plaintiff for any damagesyou believe plaintiff sustained [and is reasonably certain to sustain in thefuture] as a direct result of the occurrence mentioned in the evidence. [Ifyou find that plaintiff failed to mitigate damages as submitted inInstruction Number, in determining plaintiff's total damages you must notinclude those damages that would not have occurred without such failure.]

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M.A.I. 21.01[1998 Revision]. Verdict Directing — Actions AgainstHealth 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 toset plaintiff's broken leg bones in natural alignment,‖ or ―left a sponge in

plaintiff's chest after performing an operation,‖ or ―failed to adminis tertetanus antitoxin‖), and Second, defendant was thereby negligent, andThird, 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 directinginstruction based on negligence) , and if you believe the conduct ofdefendant as submitted in Instruction Number ____________ (here insertnumber of plaintiff's verdict directing instruction based on negligence) showed complete indifference to or conscious disregard for the safety ofothers, then in addition to any damages to which you may find plaintiffentitled under Instruction Number ____________ (here insert number of

plaintiff's damage instruction) you may award plaintiff an additionalamount 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'sconduct showed complete indifference to or conscious disregard for thesafety of others. However, in determining the amount of any punitivedamage award, you must not include damages for harm to others who arenot parties to this case.]

Who "owns" the right to sue for medical expenses? Parent or child? Ifparent 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 recoverher medical expense is in the parents, and not in the minor. Evans v. FarmersElevator Co., 147 S.W.2d 593, 601 (1941); Clark v. Martin , 650 S.W.2d 699, 701



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(Mo.App.1983). The reason for this rule is that in the ordinary case the primaryobligation to defray all such expense rests upon the parents who are charged withthe 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 lossdirectly sustained. Sommers , 277 S.W.2d at 649. Consequently, where it is shownthat the minor actually paid the medical expenses necessitated by the injuriessustained, 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 atthe 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, orother related expenses incurred by or for the deceased as a result ofsuch wrongful or negligent act or omission are recoverable. RSMo. §537.090.

2. Life Expectancy. ―A factor to be considered in evaluatingdamages under the Wrongful Death Act (RSMo. § 537.090) is

potential financial aid by the decedent, which can be shownthrough evidence of the decedent's health, character, talents,earning capacity, life expectancy, age and habits.‖ Barnett v. LaSociete Anonyme Turbomeca France , 963 S.W.2d 639, 657(Mo.App.1997).


1. Loss of Society and Companionship. Loss of Companionship of theDecedent is recoverable. Missouri‘s wrongful death statutespecifically provides for recovery of the reasonable value of theservices, 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 timeand date of his fatal injury and the time and date of his death, anaward for such suffering is proper. Coggins v. Laclede Gas Co. , 37S.W.3d 335, 343 (Mo. Ct. App. E.D. 2000); RSMo. § 537.090.



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3. Punitive Damages. Damages for aggravating circumstances are akinto punitive damages and are permissible only if the decedent wouldhave 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 bythe same standards as punitive damages. Call v. Heard , 925 S.W.2d840, 851 (Mo. banc 1996). Punitive damages based on aggravatingcircumstances require that a defendant‘s conduct was outrageous oregregious. The phraseology differs based on the type of case, but alldepend 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 beclear 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 ―thedefendant either knew or had reason to know that there was a highdegree of probability that the defendant‘s conduct would result ininjury.‖ 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 ―completeindifference to or conscious disregard for the safety of others.‖ Id . ―A

person acts with complete indifference to or conscious disregard forthe safety of others when, under the circumstances known or knowableto the actor, a reasonable person would realize the conduct not onlycreates an unreasonable risk of bodily harm to the other but alsoinvolves a high degree of probability that substantial harm will resultto 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 anelement of damages for which recovery is provided for underMissouri‘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 parentand the child must be considered. Barnett, 963 S.W.2d at 657.However, the Wrongful Death Act specifically provides that damagesfor grief and bereavement are not recoverable. RSMo § 537.090.



191


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 damagesyou believe plaintiff [and decedent] sustained [and plaintiff 4 is reasonablycertain 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 thedeath.

M.A.I. 6.02 [1998 Revision]. Wrongful Death — AggravatingCircumstances.

Where aggravating circumstances are submitted in a wrongful death case,select an exemplary damage instruction from Chapter 10.00 that fits thetheory 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 thefollowing, modified form:

If you find in favor of plaintiff under Instruction Number _______ (hereinsert number of plaintiff's verdict directing instruction based onnegligence) , and if you believe the conduct of defendant as submitted inInstruction Number _______ (here insert number of plaintiff's verdictdirecting instruction based on negligence) showed complete indifferenceto or conscious disregard for the safety of others, then in addition to anydamages 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 aggravatingcircumstances 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 fromChapter 36.00 (MAI 36.11) would be modified similarly by substitutingthe phrase ―damages for aggravating circumstances‖ for the phrase―punitive damages.‖



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MONTANASara R. Sexe

Marra, Sexe, Evenson & Bell, P.C.

Great Falls, Montana(406) 268-1000

Damages Available in a Minor’s Personal Injury Action


The damages recoverable in a personal injury action are set forth bystatute:

1. Compensation for mental and physical pain and suffering. Mentaland 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 anoccupation;

3. Loss of future earning capacity. There is no specific formula inMontana which provides how to calculate this form of damage foreither minors or adults. M C A § 27-1-202. This loss is the permanentdiminution of ability to earn money in the future, and the loss is a partof general damages which may be inferred from the nature of theinjury without proof of actual lost earnings or income, i.e. the law doesnot require proof with precise accuracy, but with reasonableestimation. Factors that juries evaluate include proof of the injured

person's previous health, age, occupation, skills, education, probablenumber of productive years remaining, physical and/or mentalimpairment proximately caused by the injury and similar factors toinfer 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 performedfor 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 reasonableestimation. See Section III.6. below, citing MPI 2 nd 25.05.

5. The reasonable value of purchases necessitated by the injury;



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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 anestablished 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 ofone's earning capacity. MCA 27-1-202. Henricksen, at p. 328, 84 P.3dat 54.

8. Punitive damages may be awarded when the defendant has been

found guilty of actual fraud or actual malice by clear and convincingevidence.

MCA § 27-1-221.

II. Other Damages Issues

1. Damages for personal injury or wrongful death not to be stated. Inan action for the recovery of money or damages for personal injury orwrongful death, the amount thereof may not be stated in the claim forrelief, whether an original claim, counterclaim, cross-claim, or third-

party 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 tounconscionable 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 anobligation not arising from contract, the measure of damages, exceptwhere otherwise expressly provided by this code, is the amount whichwill compensate for all the detriment proximately caused thereby,whether it could have been anticipated or not. MCA § 27-1-317.


a. MPI 2 nd 25.00.

―If you find for the plaintiff on the question of liability, then you mustdetermine the amount of money which will reasonably and fairly



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compensate the plaintiff for all loss caused by the defendant(s), regardlessof 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 andsuffering experienced and reasonably probable to be experienced in thefuture. The law does not set a definite standard by which to calculatecompensation for mental and physical pain and suffering. Neither is thereany requirement that any witness express an opinion about the amount ofcompensation that is appropriate for this kind of loss. The law doesrequire, however, that when making an award for pain and suffering, youshall 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 andemotional suffering and distress experienced by plaintiff and reasonably

probable to be experienced in the future. Mental and emotional sufferingand distress passes under various names, such as mental anguish, nervousshock, or the like. It includes all highly unpleasant mental reactions, suchas fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,disappointment, worry, and nausea. The law does not set a definitestandard by which to calculate compensation for mental and emotionalsuffering and distress. Neither is there any requirement that any witnessexpress an opinion about the amount of compensation that is appropriatefor this kind of loss. The law does require, however, that when making anaward for mental and emotional suffering and distress, you shall exercisecalm and reasonable judgment. The compensation must be just andreasonable.‖

d. MPI 2 nd 25.03.

―Your award should include the reasonable value of any loss sustained todate because of plaintiff‘s inability to pursue an occupation. Indetermining what plaintiff reasonably could have earned had there been noinjury, you should consider evidence of plaintiff's earning capacity, pastearnings, and the manner in which he/she ordinarily would have occupiedhis/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 offuture earning capacity. You should consider evidence of plaintiff's health,

physical ability, and earning capacity before the accident, and what theyare 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 notemployed.‖

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 forhimself/herself or others, but can no longer perform.‖

g. MPI 2 nd 25.06.

―Your award should include the reasonable value of purchasesnecessitated 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 willcontinue to suffer in the future from his/her injuries, you may award

plaintiff reasonable compensation for the impairment, if any, of his/hercapacity to pursue an established course of life. This element ofcompensation is distinct from plaintiff's loss of ear ning capacity.‖

j. MPI 2 nd 25.09.

―Where a pre-existing condition has been aggravated by the accident, it isyour duty, if possible, to apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by theaccident and compensate the plaintiff for that caused by the accident. But,if you find that the evidence does not permit such an apportionment, thenthe 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 reducedsimply because plaintiff was more susceptible to injury than a normallyhealthy 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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Damages Recoverable In A Minor’s Wrongful Death Claim

I. Survival Action

If the decedent survives the injury an appreciable amount of time , theestate can maintain a survivorship action under 27-1-501. Survival of cause ofaction 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 ordefense arose in favor of such party prior to his death or disability or transfer ofinterest therein, it survives and may be maintained by his representatives orsuccessors in interest. If the action has not been begun or defense interposed, theaction may be begun or defense interposed in the name of his representatives orsuccessors in interest. If the action has been begun or defense interposed, theaction 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 ofinjury and the time of death;

2. The present value of decedent's reasonable earnings after the date ofdeath during the remainder of his life expectancy;

3. The medical and funeral expenses which were incurred as a result ofthe 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 foundguilty of actual fraud or actual malice by clear and convincingevidence. MCA § 27-1-221.

II. Wrongful Death Action

When injuries to and the death of one person are caused by the wrongfulact or neglect of another, the personal representative of the decedent‘s estate maymaintain 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, thenalso against such other person. MCA § 27-1-513.

If a person entitled to bring an action dies before the expiration of the timelimited for the commencement of the action and the cause of action survives, anaction may be commenced by the deceased‘s representatives after the expirationof 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 allthe 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 decedentwould have provided for the support, education, training, and care ofthe heirs during the life expectancies of the decedent and survivors;

3. Reasonable compensation for burial expenses and funeral services forthe deceased and any reasonable medical charges which were incurredin connection with the death;

4. Reasonable compensation for grief, sorrow and mental anguishresulting from the death;

5. Punitive damages may be awarded when the defendant has been foundguilty of actual fraud or actual malice by clear and convincingevidence. MCA § 27-1-221.


a. MPI2d 25.00.

―If you find for the plaintiff on the question of liability, then you mustdetermine the amount of money which will reasonably and fairlycompensate the plaintiff for all loss caused by the defendant(s), regardlessof 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 shouldconsider any financial support which _______________ would havereceived 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 thedeath.

You should consider: the age of the deceased and of ______________; thestate 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; thedisposition of the deceased whether it was kindly, affectionate orotherwise; whether the deceased showed an inclination to contribute to thesupport of ________________; the earning capacity of the deceased andthe 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 uponthe value of the support, society, care, comfort, companionship and

protection which the ________________ reasonably might have expectedto receive from the deceased had __________ lived.]‖

c. MPI2d 25.21.

―( ) Reasonable compensation for burial expenses and funeral services forthe deceased and any reasonable medical charges which were incurred inconnection with the death.

d. MPI2d 25.22.

( ) Reasonable compensation for grief, sorrow and mental anguishresulting from the death.‖

e. MPI2d 25.25.

―( ) Your award should include [reasonable compensation to decedent'sestate for:]

[reasonable compensation for damages suffered by decedent if you finddeath was not instantaneous. Your award should then include reasonablecompensation to decedent's estate for:] the amount of decedent's lostearnings between the time of injury and the time of death; the presentvalue of decedent's reasonable earnings after the date of death during theremainder of his/her life expectancy; the medical and funeral expenseswhich were incurred as a result of the injury and death; reasonablecompensation for decedent's conscious mental and physical pain and

suffering in the interval between injury and death.‖



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3. Pain and Suffering. Including emotional distress and mentalsuffering. This is the child‘s cause of action, not the parent‘s. Mackuv. Drackett Products Co. , 216 Neb. 176, 179, 343 N.W.2d 58, 60(1984).

4. Punitive Damages. Punitive damages generally are not available incivil cases in Nebraska. Miller v. Kingsley , 194 Neb. 123, 124, 230 N.W.2d 472, 472 (1974).


a. Two Causes of Action — Two Parents and a Child — Negligence ofParent 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 ofaction is brought by the child's parents, for damages allegedly personallysuffered 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 Imean that negligence on the part of a parent does not relieve the defendantof any liability the defendant may have to the child for injuries or damagessuffered by the child. In this case, if you find any negligence on the part ofthe parents, you must not consider it in deciding the damages, if any, towhich the child is entitled.

Regarding the second cause of action, the one brought by the parents ontheir own behalf, if a parent has personally suffered any damages byreason of injuries to his or her child, whether that parent was negligent ornot 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 wasnegligent, then Instruction No. the general instruction on contributory andcomparative negligence, governs whether or not that parent can recoverfor his or her personal damages. If one parent was negligent and the otherwas not, the negligence of the one does not affect the recovery of theother, the non-negligent parent.



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b. Two Causes of Action — One Parent and a Child — Negligence ofParent 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 allegedlysuffered by her, by reason of injuries to her child.

Regarding the first cause of action, negligence on the part of a parent maynot 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 mayhave 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 itin deciding the damages, if any, to which the child is entitled.

Regarding the second cause of action, the one brought by the mother onher own behalf, if she has personally suffered any damages by reason ofinjuries to her child, whether she was negligent or not is relevant towhether she may recover for such damage personally suffered. In this casethe mother claims that she has suffered personal damages by reason ofinjuries to her child. If the mother did suffer some personal damage and ifyou find that she was herself negligent, then Instruction No. , the generalinstruction on contributory and comparative negligence, governs whetheror not she can recover for her personal damages.

c. General Instruction on Damages in a Tort Action Where Joint andSeveral Liability Is an Issue — Economic and Noneconomic Damages.

NJI2d Civ. 4.00.

In Instruction No. , I spoke of economic and noneconomic damages.

ECONOMIC DAMAGESI am about to give you a list of things you may consider in making yourdecision regarding economic damages. From this list, you must onlyconsider 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 tothe plaintiff (and reasonably certain to be needed and provided inthe 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 tolose 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 (heredescribe 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 yourdecision regarding noneconomic damages. From his list, you must onlyconsider those things you decide were proximately caused by defendants‘negligence.

1 The reasonable monetary value of the physical pain and mentalsuffering (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 plaintiffhas experienced (and is reasonably certain to experience in thefuture);

3 The reasonable monetary value of loss of society andcompanionship suffered by the plaintiff and reasonably certain to

be suffered in the future;

4 The reasonable monetary value of any injury to plaintiff'sreputation;

5 The reasonable monetary value of any humiliation the plaintiffhas experienced (and is reasonably certain to experience in thefuture);

6 The plaintiff's (husband‘s, wife‘s) loss of consortium.Consortium means those things to which a person is entitled byreason of the marriage relationship. It includes affection, love,



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companionship, comfort, assistance, moral support, and theenjoyment of (sexual, conjugal) relations.

ECONOMIC AND NONECONOMIC DAMAGESIn your determination of economic and noneconomic damages, you must

consider the nature and extent of the injury, including whether the injury istemporary or permanent, and whether any resulting disability is partial ortotal.

Who ―owns‖ the right to sue for medical expenses? Parent or child? Ifpare nt, does that end at the age of majority when it becomes the child’sclaim?

Parent owns right to sue for medical expenses incurred during minoritysince 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.Damages Recoverable in a Minor Wrongful Death Claim

A wrongful death action shall be brought by and in the name of the person‘s personal representat ive for the exclusive benefit of the widow orwidower and next of kin. Neb.Rev.St. § 30-809. The cause of action is not forthe decedent or the decedent‘s estate but rather for the exclusive benefit of thewidow, 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 minorchild, the damage will more often be based on the life expectancy of the parent-

beneficiaries 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 recoverthe fair and reasonable value of medical and funeral expenses, but onlyin 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 damagesin such a case is the contributions the decedent would have made tothe statutory beneficiaries had the decedent not died. The amountrecoverable is the financial loss, including lost money and lost servicesthat have a monetary value, which the statutory beneficiaries havesuffered 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



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experienced before death, medical expenses, and funeral and burialexpenses may be joined as a separate cause of action in an action forwrongful death. Reiser v. Coburn , 587 N.W.2d 336 (Neb. 1998).Damages to decedent‘s next of kin may be recovered in a wrongfuldeath action; damages to decedent may not.

4. Punitive Damages. Punitive damages generally are not available incivil cases in Nebraska. Miller v. Kingsley , 194 Neb. 123, 124, 230

N.W.2d 472, 472 (1974).


a. Wrongful Death. NJI2d Civ. 4.60.

If you return a verdict for the plaintiff, then you must determine theamount 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, youshould 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 injuriesthat 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 forthe life expectancy of the decedent or (spouse, each next of kin),whichever is shorter. You may not award (spouse, next of kin) anydamages for (his, her, their) grief or mental suffering. [(You may notaward any damages for any pain and suffering that the decedent may haveexperienced before (his, her) death.) (You may not include here anymoney to compensate for any pain and suffering that the decedent mayhave experienced before (his, her) death. The decedent's pain and sufferingis the subject of the (second, third, et cetera) cause of action and must behandled according to Instruction No. .)]

[You should entirely disregard the fact that the surviving spouse (hasremarried, 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 ofkin) may receive insurance or workers' compensation benefits as a resultof 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 ofkin). Do not divide the money (between, among)(spouse, next of kin); thatwill be done by the court. (If the jury is to allocate the award, that will behandled in the verdict form. See Comment, below.)]



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NEVADAJack P. Burden, Esq.

James J. Conway, Esq.Backus, Carranza & Burden

Las Vegas, Nevada

(702) 872-5555



1. Medical Expenses. Under Nevada law, where the injured person is aminor and the costs of his care have been met by a parent, a directright of action by such parent against the wrongdoer exists. Armstrongv. Onufrock , 341 P.2d 105, 75 Nev. 342 (1959). The parents mayrecover for damages the parents have sustained, such as medicalexpenses 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. Hoglev. 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), Nevadalaw may permit the minor to recover for lost earnings based upon theaforementioned Hogle holding permitting parents to recover for achild‘s loss of earnings. However, Nevada has not addressed, andtherefore has not recognized, either a minor‘s or a parent‘s right torecover for loss of future earnings in a personal injury action on

behalf of a minor.

4. Property Damage. Nevada Civil Jury Instruction 10.00 permitsrecovery in a personal injury case for any property damage.

5. Loss of Child Services. Parents may recover for their loss of child‘sservices. 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 andsuffering. The Supreme Court of Nevada has held that a minor maysue for damages ―though elements of the damages recoverable by himmay 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 ofearnings, loss of earning capacity, loss of future earnings, medicalexpenses, aggravation of pre-existing injuries or disabilities, andemotional 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 tomaintain an action for the injury of a minor child. NRS 12.080 statesthat ―The father and mother jointly, or the father or the mother,without preference to either, may maintain an action for the injury of aminor child who has not been emancipated, if the injury is caused bythe wrongful act or neglect of another.‖

2. Hedonic Damages. Nevada has also not addressed ―hedonicdamages‖ in the context of a personal injury action by a minor.However, the Nevada Supreme Court has held that an ―award forhedonic damages is not appropriate as a separate award, but can beawarded as a part of general damages awarded to a Plaintiff. Thus, in

Nevada, an expert can opine as to hedonic damages and a jury canaward hedonic damages, but only as a part of general damages for painand 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 damagesclaim, one must conclude that any hedonic damages claim by a minorwould only be awarded as part of any general damages sustained.

III. Jury Instructionsa. 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 10.00addresses ―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 ofthe injuries (or damage) you believe from the evidence plaintiff hassustained, and you will decide upon a sum of money sufficient toreasonably and fairly compensate plaintiff for the following items(to be set forth by counsel):



210

Who ―owns‖ the right to sue for medical expenses? Parent of child? Ifparent, 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.2d814, 112 Nev. 599 (citing NRS 12.080). Therefore, a parent would ―own theright‖ 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 injuriessustained by their minor child, the right to sue for those damages belongs to minorunless parent has paid expenses for minor or incurred them him or herself.‖ Id.

The holding in Hogle was recently incorporated into a Nevada federaldistrict court decision in McGarvey v. Smith’s Food Drug Centers, Inc. , 2011 WL1832787 (D.Nev.). In McGarvey , the federal court stated that ―A minor plaintiffmay not recover damages for medical expenses which her parents were statutorilyobligated to pay, absent a valid waiver.‖ Id. (citing Hogle v.

Hall By and Through Evans, 112 Nev. 599, 606 ). ―The Nevada Supreme Courthas held that in a personal injury action brought to recover damages for injuriessustained by a minor, the parents and the child have two separate and distinctcauses of action against the tortfeasor.‖ Id.

The McGarvey court also held that ―The minor‘s recovery ‗ may be limitedto 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, theywould be entitled to recover only such damages as may have been sustained bythem, such as their loss of the child's services and earnings and medical expensesincurred by them in effecting a cure.‘‖ Id.

The McGarvey decision also espoused the policy behind its holding: ―Therule 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 ofthat duty, the parent, not the child, is contractually liable for medical expensesincurred 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 (4thed.1916))‖. Finally, ―Absent a waiver of this right by the parents, a minor childmay not sue for medical expenses which he or she has not incurred.‖ Id.

Therefor e, the minor ―owns‖ the right to sue for those medical expensesincurred 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 rightto sue for medical expenses once the minor reaches the age of majority in anaction for the recovery of medical expenses in a personal injury action. Assumingthat the minor (and not the minor‘s parents) is s eeking recovery of medical

payments, the Supreme Court of Nevada has held that when a

minor brought asuit 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 economicdamages that a surviving parent or guardian may recover to also include the―support and financial benefit which is itself reasonably certain the heir wouldhave received from the child after the latter‘s majority and dur ing the period oftheir 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 JuryInstruction 10.14).

Nevada law also permits a recovery by the minor‘s heirs of e xemplary or punitive damages that the minor would have received had the minor lived. (NRS41.100(3)). In addition, the estate may recover for the decedent‘s pain andsuffering before death, funeral expenses and penalties a decedent would have

recovered had he lived. ( see Nevada Pattern Jury Instructions 10.00 – 10.09; NRS41.085; 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, lossof future earnings, medical expenses, aggravation of pre-existing injuries ordisabilities, 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 fora 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 theheir was reasonably certain to have received from the earnings andservices of his child during the child‘s minority, but also the support and

http://web2.westlaw.com/find/default.wl?mt=Nevada&rs=WLW12.01&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=211K88&serialnum=1880010143&vr=2.0&fn=_top&sv=Split&tf=-1&pbc=58C0982A&utid=2







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financial benefit which is itself reasonably certain the heir would havereceived from the child after the latter‘s majority and during the period oftheir 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 thelove, companionship, comfort, affection, society, solace or moral supportof the child.

With respect to the matter of life expectancy, you must keep this point inmind: the prospective period of time that will be of concern to you if youdecide in favor of any heir is only the shorter of the two life expectanciesthat of such heir or that of the deceased child, as one can derive a benefitfrom the life of another only so long as both are alive.



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NEW HAMPSHIREMatthew R. ShindellCheryl A. Possenti

Goldberg Segalla LLPPhiladelphia, Pennsylvania

267-519-6800


I. Damages Recoverable/Jury Instructions:

a. § 9.5 Damages--Full, Fair and Adequate

You are instructed that in your determination as to the amount of damagesto award to the plaintiff you must consider the evidence in the case andmust 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 evidencethe existence or nonexistence of insurance coverage. This includes motorvehicle insurance, liability insurance, worker's compensation benefits, andhealth 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 whetherthe defendant is insured or has the ability to pay an award. Yourresponsibility 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 hasreceived 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 makeany deduction from the plaintiff's damages to reflect benefits which mayhave been received from other sources. This is so because the plaintiffmay be required to repay such other sources from any award made in thecase. 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 oritems about lawsuits in general for the effect, if any, your verdict mighthave on others.

In other words, on the issue of damages, the only proper consideration iswhat 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 theevidence.

The plaintiff has the burden to prove that the injuries he/she claims to havesustained 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 toguess, surmise or speculate. You should award the plaintiff an amount tocompensate him/her for his/her loss; the amount of the verdict must makehim/her whole, not a reward or prize, but, on the other hand, not miserly orstingy.

The reason behind awarding a verdict to the plaintiff is not to punish thedefendant for any wrongdoing but to compensate the plaintiff for theinjuries incurred as a result of the defendant's legal fault. The law cannotdo the impossible by turning back the clock and eliminating the accidentfrom ever having occurred; it does provide a means by which the plaintiffis 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 actuallygiven in the treatment of plaintiff (and the reasonable valueof similar items that will probably be required and given inthe future).

2. The present value of lost wages to date or wages plaintiff probably would have earned to date if he/she had not beeninjured.

3. The present value of plaintiff's loss of earning capacity, thatis, any future wages that plaintiff probably would haveearned if he/she had not been injured.

4. Reasonable compensation for pain and sufferingexperienced to date and which will probably beexperienced in the future. This includes compensation for

physical pain, discomfort, fears, anxiety, mental andemotional distress, and loss of enjoyment of life--that is,the inability to carry on and enjoy life in a manner had theaccident 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 suchreasonable compensation. In making an award for pain and suffering youshould exercise your reasonable judgment and the damages you determinehave 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 permanentinjuries, the jury is entitled to award such compensation as it determineswould fairly and fully compensate the plaintiff for any loss of enjoymentof 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 andconscious pain and suffering. It concerns the inability, if any you findfrom the evidence, of the plaintiff to carry on and enjoy a life in a mannerhad the accident not occurred.

d. § 9.14 Enhanced Damages

The purpose of an award of damages is to compensate the plaintiff forhis/her/its loss, not to punish the defendant. You are not permitted toaward money damages for the purpose of punishing the defendant or ofmaking an example of him/her/it for the public good or of preventinghim/her/it and others from similar conduct.

If you find that plaintiff suffered actual damages that were caused orsubstantially caused by the conduct of the defendant, there are certaincircumstances under which the law permits you, but does not require you,to consider an award of additional damages to reflect aggravatingcircumstances. These damages are called "enhanced damages" or "liberalcompensatory damages." You may award these damages only if you findthat the defendant's conduct was more probably than not wanton,malicious, or oppressive. "Wanton" means reckless indifference ordisregard 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 recoverdamages for his or her loss or dimunition of earning capacity. This ismeasured by the amount of wages that the plaintiff would have earnedduring 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 berecovered for loss or dimunition of earning capacity, you may considerevidence that tends to show that as a result of the injury, the plaintiff'sability 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 actof a third party two causes of action arise. One by the child itself for personalinjuries 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/BlueShield 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 onthe child's behalf, the child has no right to recover those expenses. Consequently,an insurer generally has no subrogation rights it can specifically enforce againstthe 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, 459A.2d at 229.

RSA 464-A:42 requires court approval of a settlement on behalf of aminor before that settlement can take effect. Superior Court Rule 111 providesthat 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, whereapplicable: "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'sclaim. If the parent is being paid anything directly, the petition should contain astatement of the total amount being paid the parent and a specification of theitems covered." Super. Ct. R. 111(c). Hence, while the settlement nominally isone 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 bythe 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 thechild'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, thereasonable expenses occasioned to the estate by the injury, the probableduration of life but for the injury, and the capacity to earn money duringthe 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 samemanner as if the deceased had survived.

In addition, the trier of fact may award damages to a surviving spouse ofthe decedent for the loss of the comfort, society, and companionship of the

deceased; however, where fault on the part of the decedent or thesurviving spouse is found to have caused, in whole or in part, the losscomplained of, damages recoverable shall be subject to diminution to theextent and in the manner provided for in RSA 507:7-d. In no event shalldamages awarded under this paragraph exceed $150,000.

In addition, where the decedent is a parent of a minor child or children, thetrier of fact may award damages to such child or children for the loss offamilial relationship, whether caused intentionally or by negligentinterference; where the decedent is a minor child with a surviving parentor parents, the trier of fact may award damages to such parent or parents

for the loss of familial relationship, whether caused intentionally or bynegligent interference. However, where fault on the part of the decedent orthe claimant is found to have caused, in whole or in part, the losscomplained of, damages recoverable shall be subject to diminution to theextent and in the manner provided for in RSA 507:7-d. For purposes ofthis paragraph, loss of familial relationship shall include the loss of thecomfort, 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 RSA556: 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," whichdoes not involve bodily injury to the surviving parent or child. Like a lossof consortium claim, loss of familial relationship is a consequentialdamage 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. Bourquev. Town of Bow, 736 F. Supp. 398, 407 (D.N.H. 1990) ("punitive orexemplary 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 punitivedamages").

II. New Hampshire Jury Instructions

a. § 16.1 Measure of Damages

In determining damages in this action for wrongful death, you shouldconsider:

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 lifein a way he/she would have for his/her probable life expectancy hadhe/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 uponthe 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 theelements you should consider. That simply means any reasonable funeraland burial, medical and hospital expenses occasioned to the estate by thedecedent's death.

d. § 16.4 Lost Earning Capacity

In determining the decedent's capacity to earn money, what you are todetermine is the loss to the estate due to the destruction of the decedent'searning power. The loss to the estate is what you are deciding. In order todo 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 spentfor the family, just for the decedent's own personal necessary livingexpenses.

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, anitem to be considered as damages recoverable in a case such as this is anamount of money, based upon the evidence, which recognizes [thedeceased's] inability, by virtue of [his/her] shortened life, to carry on andenjoy life in a way he or she would have had [he/she] lived longer. Onceagain, it is up to you to determine the appropriate amount to compensatethe estate for that loss.



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NEW JERSEYMitchell W. TaraschiSusan KwiatkowskiConnell Foley LLP

Roseland, New Jersey

975-535-0500




2. Medical and Other Related Expenses . Medical and related expensesare recoverable.

3. Loss of Wages or Wage-Earning Capacity . Loss of wages or wage-earning capacity are recoverable. A parent may institute an action asthe guardian ad litem for injuries to the child, and the parent may alsosue independently for the loss of services of the injured child. Jacobsv. 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 fora minor who is not yet working outside of the home. However, courtswill consider a child‘s contributions within the home, for example,

babysitting and household chores, as well as any indications of his orher expected future contributions.


1. Hedonic Damages . Damages for loss of enjoyment of life arerecoverable. 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 distressresulting in bodily injury or sickness, even if the plaintiff was not

physically injured in the accident. Falzone v. Busch, 45 N.J. 559, 214A.2d 12 (1965). Thus, if the plaintiff can demonstrate that thedefendant‘s negligent conduct placed plaintiff in reasonable fear ofimmediate personal injury, and plaintiff suffered emotional distressresulting in bodily injury or sickness, damages are recoverable.

The Falzone holding was extended in 1980 to bystanders whowitnessed the death or serious bodily injury of a close family member,even where the bystander was not at risk of physical harm. See Porteev. Jaffee, 84 N.J. 88, 101, 417 A.2d 521 (1980).



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3. Punitive Damages . Punitive damages are recoverable, but aredependent upon a compensatory damage award. Nominal damagescannot 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 ofcompensatory 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 byclear and convincing evidence that the injury was the result of thedefendant‘s acts or omissions, and that the defendant‘s conduct wasmalicious or that the defendant acted in wanton and willful disregardof the plaintiff‘s rights. N.J.S.A. 2A:15 -5.12(a).


a. 8.10 Damages – Effect of Instructions

―1. What sum of money will fairly and reasonably compensate the plainti ff[name] for damages he/she sustained as a proximate result of theaccident/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, soci ety and consortiumthat 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 medicalexpenses which were reasonably required for the examination, treatmentand care of injuries proximately caused by the defendant‘s negligence (orother 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,‖ sim ilar elements are consideredfor injuries to children.



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other charges for medical services. The amount of payment is the fair andreasonable value of such medical expenses. You have heard testimony onwhether these medical expenses were fair and reasonable in amount andwhether they were reasonably necessary for the examination, care andtreatment 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 notreasonably necessary to any extent, you need not award the full amountclaimed. In this case, [plaintiff] is seeking the sum of [dollar amount] inmedical expenses. As a result, the upper limit of the award which you maymake for medical expenses is [dollar amount] , since you may not awardmore 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 thechild 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 ofearnings belongs solely to the emancipated child; however the lawrecognizes that a child, after the age of majority, may perform services forthe parents, may provide valuable companionship and care as the parentsget older, and may make monetary contributions to the parents.

Parents who are awarded a verdict are entitled to fair and reasonablecompensation for any loss or decrease of the child's earnings, services,companionship or contributions before the child reaches majority, and anyloss or impairment of their child's services because of injuries sustained asa result of the defendant's negligence (or other wrongdoing).‖

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

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) (―theassumption of the New Jersey cases has been that the recovery [for future medicaloutlays] belongs to the parents.‖); Jacobs v. Jacobs, 99 N.J. Super. 84, 88, 238A.2d 512, 514 (Ch. Div. 1968) (―Clearly, the parent who actually pays formedical 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 orshe – 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 thetortious 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 thedecedent would have had if he or she had survived. The primary recovery underthe Survivor Act is for pain and suffering of the decedent between injury anddeath. 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 tortuousconduct of others…. The Survivor Act preserves for the decedent‘s es tate any personal cause of action that decedent would have had if he or she hadsurvived.‖).



2. Funeral, Medical and Other Related Expenses . Funeral, Medicaland 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 recognizesthe difficulty in determining the future lost earning capacity and valueof future services to the family; however, the caselaw is clear thatwhile such calculations may be difficult and speculative, they do not

preclude recovery. Green , 85 N.J. at 15, 424 A.2d at 217 (―[E]venassuming no special circumstances are proven… the nature of thesecases 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 probleminherent in evaluating the economic value of a newborn‘s life isobvious. No one can know much, if anything, about the infant and hisor her future economic worth. That difficulty, however, should not

preclude any award.‖). While an infant may appear to present afinancial burden on his or her family due to the costs associated withraising a child, the New Jersey courts recognize that such a view―would result in a return to the outmoded doctrine that a child is aliability – 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 basedupon the contributions, reducible to monetary terms, which thedecedent reasonably might have been expected to make to thesurvivors, 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 havecontributed to the survivors and, if so, to what extent wouldcontr ibutions 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 notrecoverable pursuant to the Survival Act. Pollock v. Barrickman, 610F.Supp. 878, 879 (D.N.J. 1985). Recovery under the Act onlycontemplates damages for pain and suffering between injury anddeath, 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 doesnot 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 belimited strictly to their pecuniary element. The command of the statute

is too clear to allow compensation, directly or indirectly, for emotionalloss.‖); 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 recoverableunder the Survivor Act, N.J.S.A. 2A:15-3. However, damages arerecoverable 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 wrongfuldeath actions. Kern v. Kogan, 93 N.J.Super. 459, 469, 226 A.2d 186,192 (Law Div. 1967) (―The New Jersey wrongful death act isessentially remedial rather than penal‖); Goss v. American CyanamidCo., 278 N.J. Super. 22 7, 241, 650 A.2d 1001 (App. Div. 1994) (―Anaward of damages in a wrongful death action is not intended to punishthe tortfeasor, but only to replace that which the decedent likelywould have provided.‖)

In contrast, a survival claim allows for the recovery on any personalcause of action that the decedent would have had if he or she hadsurvived. Therefore, claim for punitive damages may be sustainedunder 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 measureof such damages is limited to the time between injury and death).

5. Emotional Distress . Claims for emotional damage are limited. TheWrongful Death Act does not recognize damage claims for emotionalsuffering 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 thatdamages cannot be sought for mental anguish and distress, loss ofconsortium, and loss of companionship. Thomas v. Ford Motor Co.,70 F.Supp.2d 521, 532 (D.N.J. 1999).


a. 8.42 Survival Action

―In a survival action, the administrator as plaintiff is seeking damages forthe decedent's hospital and medical expenses, loss of earnings as well asany disability and impairment, loss of enjoyment, and pain and sufferingwhich the decedent sustained between this accident and his/her death.Under the law, he/she is entitled to recover the damages which thedecedent 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 physicalinjuries 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 thesurvivors may have suffered as a result of the decedent‘s death, or any lossof emotional satisfaction the survivors may have derived from the societyand companionship of the decedent. These matters, although very real anddistressing, cannot be considered in determining the extent of the financialloss suffered by the survivors.‖

What is Recoverable

―Financial loss includes not only the actual monies the deced ent would

have earned and contributed for the benefit of the survivors, but also thereasonable value of the services, assistance, care, training, guidance,advice, counsel and companionship the survivors would have receivedfrom the decedent had he/she lived.

A. With regard to the decedent‘s earnings, you should consider the netearnings 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 futureincome during the balance of his/her working life expectancy. The incomefigure you use should be net income, that is, income after taxes. This is

because net income represents that portion of the decedent‘s income whichwould have been available for the benefit of the decedent‘s su rvivors. Net

income also includes fringe benefits, such as monies the decedent wouldhave obtained in the form of employer contribution to a retirement plan.

Since money used for the decedent‘s personal maintenance and expenseswould not have been available for the benefit of the survivors, you mustsubtract the decedent‘s personal expenses from the net income. You mustfind 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 receivedfrom the decedent in the form of services, assistance, guidance andtraining. In making such an award, you must determine the reasonable

value of the services or benefits that will be lost by reason of thedecedent‘s death.

C. In addition to the loss of anticipated direct financial contributions fromthe decedent to the survivors, as I explained previously, you should alsoconsider the pecuniary value of the loss of the decedent‘s anticipat edservices to the survivors. This may include things such as chores thedecedent 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. Youmust remember, however, that your award for damages for these losses

will be confined to their financial value and should not include anyamount of emotional loss.

Bear in mind that in fixing an award for services, companionship, care,advice and counsel, you must distinguish between their emotional valueand 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) advancedage or declining health. Remember, however, that no pecuniary value may

be attached to the emotional satisfaction gained by the parent, spouse orchild if the deceased has performed these services.‖



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NEW MEXICO

Kathleen StimelingLauren Quint

Schiff Hardin LLP




2. Medical and Other Related Expenses . Medical, or other relatedexpenses incurred as a result of wrongful or negligent act or omissionor breach of warranty are recoverable. Medical expenses include thereasonable expense of necessary medical care, treatment and servicesreceived (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 orWage-Earning Capacity is recoverable. See Higgins v. Hermes, 553P.2d, 379 (N.M. Ct. App. 1976). The loss of earning capacity by aminor is determined by the present cash value of earning capacityreasonably certain to be lost in the future after the plaintiff has reachedthe 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 thenon-pecuniary value of a decedent's life is compensable under the NewMexico Wrongful Death Act. Sears v. Nissan 872 P.2d 840 (N.M.1994). New Mexico permits proof of nonpecuniary damages resultingfrom loss of enjoyment of life, regardless of whether the injured partyis 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 settledunder New Mexico law.

3. Loss of Use of Limb . The loss of use of a limb is a recoverableexpense. 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



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non-medical expenses including pain and suffering. See N.M. STAT . 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 wantondisregard of the plaintiffs' rights.‖ Samedan Oil Corp. v. Neeld 577P.2d 1245 (N.M. 1994). To prove punitive damages, one must proveconduct 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 burdenof proof generally required in New Mexico for the recovery of

punitive damages is proof by the preponderance of the evidence. SeeUnited 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) amarital 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 toa cause of action, however, at present New Mexico law is notsufficiently developed in this area to permit the drafting of a uniform

jury instruction. See N.M. STAT . A NN ., Civ. Uniform Jury Instr. 13-1630.

6. Pain and Suffering : ―If a plaintiff in a personal injury case is entitledto recover at all, he is entitled to damages for his injuries, for pain andsuffering, and for mental injury arising from the accident.‖ Jones v.

Pollock , 383 P.2d 271 (N.M.1963). See also Martinez v. Teague 631P.2d 1314, 1320 (N.M. 1981).


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 fairlycompensate [him] [her] for any of the following elements of damages

proved by the plaintiff to have resulted from the negligence [wrongfulconduct] as claimed:



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(NOTE: Here insert the proper elements of damages and, in a personalinjury 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 lawgoverning the specific circumstances.)

Whether any of these elements of damages have been proved by theevidence is for you to determine. [If you find that, before any injury in thiscase, plaintiff was already impaired by a physical or emotional condition,

plaintiff is entitled to compensation for the aggravation or worsening ofthe condition, but not for elements of damages to the extent they werealready being suffered.] [However, damages are to be measured withoutregard to the fact plaintiff may have been unusually susceptible to injuryor likely to be harmed. The defendant is said to ―take the plaintiff as hefinds [hi m] [her],‖ meaning that the defendant, if liable, is responsible forall elements of damages caused by the defendant's conduct even if some ofthe plaintiff's injury arose because the plaintiff was unusually susceptibleto being injured.]

Your verdict must be based upon proof and not upon speculation, guess orconjecture. Further, sympathy or prejudice for or against a party shouldnot affect your verdict and is not a proper basis for determining damages.‖

N.M. STAT . A NN. CIV. Uniform Jury Instr. Civ. 13-1601.

Who ―owns‖ the right to sue for medical expenses? Parent or child? Whendoes it becomes the child’s claim?

Either a minor or his or her parent can recover for the minor‘s medical andnon-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 formedical 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 owncapacity. Instead their future medical expenses were awarded to parents who werelegally bound to pay the expenses. The Lopez decision did not eliminate the roleof the parents. Instead it allows either the parent or the child to sue and recoverthe damage award. Id.; see also Jessica Sutin Tort Law — Either the Parents or theChild 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).



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Damages Recoverable in Minor Wrongful Death Claims and Minor SurvivalActions

Under the Wrongful Death Act, New Mexico permits a personalrepresentative 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 NewMexico. 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 ofaction which survive at common law, causes of action for mesne profits, or for aninjury to real or personal estate, or for any deceit or fraud, shall also survive, andthe 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 actionfor personal injuries, shall survive the death of the party responsible therefor.‖ N.M. STAT . A NN . §37-2-1. It follows that the damages addressed below are alsoapplicable to survivor claims.



2. Funeral, Medical and Other Related Expenses . Funeral and burialexpenses 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 plaintiffrecover the value of the life of the decedent, but the plaintiff may also

prove up medical and hospital expenses which were incurred by thedecedent before death.‖ Hall v. Regents of Univ. of New Mexico , 740P.2d 1151, 1152 (N.M.1987).


1. Loss of Society and Companionship . A parent cannot file an actionfor loss of filial consortium for their child. Wilson v. Galt 668 P.2d1104 (N.M. Ct. App.1983).

2. Pain and Suffering . New Mexico law allows damages to be awardedfor the pain and suffering experienced by the deceased between thetime of injury and death. Stang v. Hertz Corp., 463 P.2d 45, 48-49(N.M. Ct. App. 1969).



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3. Punitive Damages . Punitive damages are available in wrongful deathactions. See N.M. STAT . A NN . §41-2- 3 (―[the] jury in every such actionmay give such damages, compensatory and exemplary, as they shalldeem fair and ju st.‖)

4. Loss of Enjoyment of Life . New Mexico permits proof ofnonpecuniary 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 ) [individuallyand] on behalf of the surviving beneficiaries of __________ ( name ofdecedent ) 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 thisinstruction 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 forthe life of __________ ( name of decedent ), including in your awardcompensation for any of the following elements of damages proved by theevidence:

1. The reasonable expenses of necessary medical care andtreatment 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 ofthe lost household services of the deceased considering thedeceased's age, earning capacity, health, habits, and lifeexpectancy. 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. Thedamages 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 reasonablediscount must be made for the future earning power of thedamages awarded;

4. The value of the deceased's life apart from [his] [her]

earning capacity;5. The mitigating or aggravating circumstances attending thewrongful 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 otherexpected benefits that have a monetary value. While the presenceor absence of a measurable monetary loss to beneficiaries is afactor for consideration, damages may be awarded even wheremonetary loss to the surviving beneficiaries cannot be shown.

The property or wealth of the beneficiaries or of the defendant is not alegitimate factor for your consideration.

The guide for you to follow in determining fair and just damages is theenlightened conscience of impartial jurors acting under the sanctity ofyour oath to compensate the beneficiaries with fairness to all parties to thisaction. Your verdict must be based on evidence, not on speculation, guess,or conjecture. You must not permit the amount of damages to beinfluenced by sympathy or prejudice, or by the grief or sorrow of thefamily [or the loss of the deceased's society to the family].‖

N.M. STAT . A NN. Uniform Jury Instr. Civ. 13-1830



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NEW YORKSaleel V. Sabins

AnnMarie GiblinCheryl A. Possenti

Goldberg Segalla, LLPBuffalo, 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 besubmitted to the Court for a hearing to determine if sufficient. If so, anInfant‘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 asfollows:

a. If the status of limitations is 3 years or more, the time is extendeduntil 3 years after the disability due to infancy ceases;

b. If the statute of limitations is less than 3 years, the time shall beextended 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 inmedical, dental or podiatric malpractice cases.

d. The tolling provisions of CPLR § 208 do not apply to actionsgoverned 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 § 208and 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.

-



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II. Right to sue for Medical Expenses – Parent v. Child

The parent is only allowed to recover those monies actually spent prior totrial 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 reasonablevalue of the expenses (he, she) incurred by reason of the medical, hospital,and nursing services and supplies that were necessary as a resul t of AB‘sinjuries. (If the evidence supports a claim for future damages, state: youmay not, however, award to the parent any amount for such expenses asmay 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 andSuffering

If you decide that defendant is liable, plaintiff is entitled to recover a sumof money which will justly and fairly compensate (him, her) for any injury

and conscious pain and suffering to date caused by the defendant. [If thereis an issue relative to the level of plaintiff‘s awareness, the followingshould be charged.] Conscious pain and suffering means pain andsuffering 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 andsuffering, you may take into consideration the effect that plaintiff‘s(decedent‘s) injuries (have had on plaintiff‘s ability to enjoy life up to thetime 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 personis 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 intoconsideration in determining the amount to be awarded to plaintiffs.

b. Permanent Injury

NY PJI 2:281 – Damages – Personal Injury – Future – Permanence – LifeExpectancy Tables

With respect to any of the plaintiff‘s injuries or disabilities, the plaint iff isentitled to recover for (his, her) ability to enjoy life. In this regard youshould take into consideration the period of time that the injuries ordisabilities are expected to continue. If you find that the injuries ordisabilities are permanent, you should take into consideration the period oftime that the plaintiff can be expected to live. In accordance withstatistical life expectancy tables, AB has a life expectancy of [insertnumber] years. Such a table, however, provides nothing more than astatistical average. It neither guarantees that AB will live an additional[insert years] or means that (he, she) will not live for a longer period. Thelife 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 expectancyis.

c. Emotional Damages

NY PJI 2:284 – Damages – Personal Injury – Shock, Emotional Distressand Physical Consequences Thereof

If you find that the plaintiff is entitled to recover from the defendant, youmust also include in your verdict damages for any mental suffering,

emotional and psychological injury and any physical consequencesresulting from the emotional distress caused by the wrongful act of thedefendant.



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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 ofthe accident to today. Moreover, if you find that as a result of thoseinjuries AS has suffered a reduction in (his, her) capacity to earn money inthe future, then AB is also entitle to be reimbursed for loss of futureearnings.

Any award you make for earnings lost to date must not be the result ofspeculation; any award must be calculated from the number of days thatyou 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 futureshould be determine on the basis of AB‘s earnings before the accident, theconditi on of AB‘s health, (his, her) prospects for advancement and the

probabilities with respect to future earnings before the accident, the extentto which you find that those prospects or probabilities have been reduced

by the injuries, the length of time that you find AB would reasonably beexpected to work had (he, she) not been injured, the nature and hazards orAB‘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 expectanceaccording to the mortality tables , work life expectancy according to thework life expectancy tables in evidence) of [insert number] more years.Such tables are, of course, nothing more than statistical averages. Theyneither assure that AB will have the span of (working) life I have givenyou nor assure that AB‘s span will not be greater. The figures I havegiven you are not binding upon you, but may be considered by youtogether with your own experience and the evidence you have heard in

determining what AB‘s (life, work life) expectancy is. If you find that ABis entitled to an award for reduction in earning capacity in the future, youwill fix the dollar amount of such reduction over the entire period that youfind AB will suffer such reduction and include that amount in yourverdict. In your verdict you will state separately the amount awarded forloss of earnings to date, if any, and, if you make an award for loss of



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future earnings, you will stated in your verdict the amount awarded andthe period of years over which such award is intended to providecompensation. Do not state an amount per year but only a total amountfor the entire period.

1. Case law

The loss of future earnings as to an infant plaintiff is a propermeasure of damages. Kavanaugh v. Nussbaum , 129 AD2d 559,mod on other grounds 71 NYS2d 833; Johnson v. Colvin , 145AD2d 846; Campolo v. Yonkers , 137 AD2d 480. The awardcannot be based upon speculation, and must be established withreasonable certainty. Davis v. New York , 264 AD2d 379, amendedon other grounds 1999 WL 637163; Novko v. State , 285 AD2d696.

e. Loss of Earnings (Unrealized Occupation)

NY PJI 2:291 Damages – Personal Injury – Loss of Earnings – UnrealizedOccupation 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, arereasonably certain to interfere in the future) with AB‘s tr aining, you mayaward 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‘stalent, the training received, the opportunities and recognition already had,the future opportunities that (he, she) (has, was likely to have), as well asthe likelihood, risks and contingencies involved in achieving success inthe (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 forthe career. Grayson v. Irvmar Realty Corp. , 7 AD2d 436.However, there must be evidence that the infant-plaintiff mighthave pursued the career in question or had some probability ofqualifying for such career. Dobski ex. Rel. Dobski v. Schenectady ,272 AD2d 662; Schwall v. Ambrosio , 45 AD2d 732.



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f. Loss of Earnings (Special Talent)

NY PJI 2:292 – Damages – Personal Injury – Loss of Earnings – Special

TalentPlaintiff AB has offered evidence that (he, she) has been studying for acareer (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 recoverdamages for wrongful injury to the development of those talents. AB‘srecover is not necessarily limited by the amount (he, she) actually earned

before the injury. However, in deciding the amount of damage, you mustconsider the training necessary, the success and recognition alreadyrealized, 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 isthe 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 anestablished professional. Grayson v. Irvmar Realty Corp. , 7 AD2d436.


I. Damages Recoverable

New York has steadfastly restricted recovery to pecuniary injuries anddenied recovery for grief or anguish, loss of society, affection, conjugalfellowship and consortium. Loss of support, voluntary assistance and possibleinheritance, as well as medical and funeral expenses incidental to death, areinjuries 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 ofmedical aid, nursing, and attention incident to the injury causing deathand the reasonable funeral expenses of the decedent paid by thedistributees . . . shall be proper elements of damages.‖



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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 injuriesresulting from decedent‘s death to the persons for whose benefit the

action is brought.‖ In determining the ―fair and just compensation‖ forthe pecuniary loss resulting from the death of a minor to the personsfor whose benefit the action is brought, the following considerationsare relevant:

The minor‘s age and life expectancy;

The minor‘s state of health;

the probability of the minor having means to supporthis/her parents, (if the latter are in need);

current and probable future earnings during minority abovesupport;

the voluntary assistance which the minor might have givento his/her parents;

the health, age, and condition of those for whose benefit theaction 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); Hansonv. 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 thewrongful 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 lossof each parent and to distribute the damages accordingly and alsoserves as authority to deprive a surviving parent of a share of suchdamages upon a finding that no pecuniary injury was suffered by that

parent. Hanson , 507 N.Y.S.2d at 779-780.



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In determining whether a plaintiff may reasonably expect to sustain pecuniary loss as a result of the minor‘s death, it is relevant whetherthe minor-decedent would have been legally obligated to support the

plaintiff and, if not, whether there is any evidence that the decedentwould have volunteered to do so. Estate of Angelica Pesante v.

Mundell , 829 N.Y.S.2d 390, 393 (N.Y. App. Div. 2007). A parent- plaintiff‘s damages also consider the probability that the parent would benefit from earnings that the child might have accumulated (notlimited to minority) provided there is some adequate basis for thiscalculation, and it is not left to speculation. In any wrongful deathaction involving a child, ―the absence of dollars and cents proof of

pecuniary loss does not relegate the distributees to recovery of nominaldamages only but rather, since it is often impossible to furnish directevidence of pecuniary injury, calculation of pecuniary loss is a matter

resting squarely within the province of the jury.‖ Lopez v. Gomez , 305A.D.2d 292-293 (N.Y. App. Div. 2003).

New York also permits a plaintiff in a wrongful death action to recoverdamages for conscious pain and suffering of the minor-decedent

provided there is some evidence of such pain and suffering which mayinclude the consideration of any terror experienced by the minor.

Estate of Angelica Pesante , 829 N.Y.S.2d at 392. Loss of enjoyment oflife is not a separate element of damages deserving a distinct award butis, 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 conductfound 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 torecover pre-judgment interest (set at 9 percent) from the date of deathforward until the date of payment on any principal amount obtained byverdict or judgment.



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II. Evidentiary and other considerations

The statutory cause of action for all wrongful death cases under the NewYork 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 ifdeath had not ensued; (4) survival by distributees who have suffered pecuniaryloss by reason of the death; and (5) appointment of a personal representative ofthe 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 plaintiffhas 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 deathaction 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 forWrongful Death and Conscious Pain and Suffering, Including SuchActions Based on Medical, Dental and Podiatric MalpracticeCommenced 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 awardfor sorrow, mental anguish, injury to feelings, or for loss ofcompanionship. You must determine the economic value of AB to [ listthe distributees by name ] on [ give date of death ], when AB died. Indetermining that economic value, you should consider the character, habitsand ability of AB; the circumstances and condition of [ list the distributeesby 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 futurefor the care and support of [ list the distributees by name ]; the age and lifeexpectancy 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 havegiven the children had (he, she) lived. You should also consider theamount, 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 thatwould have been inherited from (him, her), provided that you find that at



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least one of [ list the distributees by name ] would have been alive to inheritfrom (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 thedistributees by name ] resulting from AB‘s death. [ In cases tried in theSecond Department, state: the total amount of economic loss, if any, to(list the distributees by name ) resulting from AB‘s death, withoutspecifying the amount of economic loss for each individual]

2. For each person for whom an award is made in your answer toQuestion No. 1, state the period of years over which the amount awardedfor such economic loss is intended to provide compensation.

3. State the amount awarded, if any, to AB‘s (spouse) for the followingitems 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.



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If you decide not to make an award as to any item, you will insert theword ―none‖ asto that item.



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NORTH CAROLINARichard BoyetteAlka Srivastava

Cranfill Sumner & Hartzog LLPRaleigh, North Carolina

(919) 828-5100



1. Medical and other related expenses. A parent is liable for medicalexpenses incurred in the necessary treatment of his minorunemancipated child; therefore, the cause of action to recover for suchexpenses generally lies with the parent and not with the child. Kleiborv. Rogers , 144 S.E.2d 27, 29 (N.C. 1965). However, there are certainexceptions to this general rule.

The right of action to recover medical expenses after reaching the ageof majority lies with the minor. If the parent waives his or her right torecover (medical expenses incurred before the minor reaches age ofmajority) by appearing in the action as Guardian ad litem on behalf ofminor, the minor is allowed to recover the full amount to which bothhe 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 notappropriate for a jury to consider evidence of loss of earning capacityduring 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 childduring minority. Under North Carolina law, a minor plaintiff cansupport a lost earning capacity claim by presenting evidence of priorgood 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 testifiedas to minor plaintiff‘s ability to attend college and her futureemployment opportunities was competent evidence; the experts

―testified based on their own personal evaluations of [minor], a reviewof her additional medical records, and their exp ertise and training‖).


1. Pain and Suffering. Negligent injury of a minor child can gives riseto a cause of action in the child for pain and suffering. Emanuel v.



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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 permanentinjury. Kleibor v. Rogers , 144 S.E.2d 27, 29 (N.C. 1965). Damagesfor scars or disfigurement and partial loss (or use of) body part are alsorecoverable.

3. Punitive Damages. Recovery of punitive damages is governed byChapter 1D of the North Carolina General Statutes. See N.C. Gen.Stat. § 1D- 10 (2011) (―This Chapter applies to every claim for punitivedamages, regardless of whether the claim for relief is based on astatutory or a common- law right of action or based in equity.‖). Theamount of punitive damages is limited to three times compensatorydamages or two hundred fifty thousand dollars ($250,000), whicheveris greater. N.C. Gen. Stat. § 1D-25 (2011).

Punitive damages are awarded to punish the ―outrageous nature of thewrongdoer‘s conduct.‖ Howard v. Parker , 382 S.E.2d 808, 810 (N.C.Ct. App. 1989). Punitive damages are not awarded where thedefendant‘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 leastan indifference to or a disregard for the rights and safety of others.‖ Id.( internal citations omitted). To recover punitive damages, a plaintiffmust prove the ―existence of an aggravating factor by clear andconvincing evidence.‖ N.C. Gen. Stat. § 1D -15 (2011).


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 (statenumber) issue ―No‖) in favor of the plaintiff , the plaintiff is entitled torecover nominal damages even without proof of actual damages. Nominaldamages consist of some trivial amount such as one dollar in recognitionof a technical injury to the plaintiff.

The plaintiff may also be entitled to recover actual damages. On this issuethe burden of proof is on the plaintiff. This means that the plaintiff must

prove, by the greater weight of the evidence, the amount of actualdamages [proximately caused by the negligence] [caused by the wrongfulconduct] of the defendant.



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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 forany [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 willconsider the evidence you have heard as to (each of the following types ofdamages):

[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 nowexplain the law of damages as it relates to each of these.


When an unemancipated minor is injured by the negligence of another, theminor‘s parents have a ca use of action for medical expenses that were incurred

before the child reached age of majority. The parents‘ cause of action is ―basedupon their duty to care for and maintain their child.‖ Moquin v. Hedrick , 593S.E.2d 435, 438 (N.C. Ct. App. 2004). However, a parent may waive this right tocollect such medical expenses. By this waiver, the parent treats the minor asemancipated for the purpose of recovering the medical expenses, and the minormay recover such expenses arising from her or her injury. Bolkhir v. N. CarolinaState Univ. , 365 S.E.2d 898, 902 (N.C. 1988) (internal citations omitted).

However, a minor plaintiff cannot use the parent‘s waiver to effectivelyextend 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 expensesincurred during minority because plaintiff obtained waiver from her mother morethan four years after cause of action arose, which would have extended mother‘sclaim beyond its three-year statute of limitations).

If the evidence shows that the minor was personally liable for medicalexpenses incurred as a result of the injury, the minor may recover them. Hawkins



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v. Mauney , 190 S.E. 715, 716 (N.C. 1937) (allowing minor plaintiff to recovermedical expenses because plaintiff, a married woman, assumed personalresponsibility for her medical care).



1. Expenses for care, treatment and hospitalization incident to theinjury resulting in death. See N.C. Gen. Stat. 28A-18-2(b)(1)(2011). There is no limit on the amount of recovery allowed formedical and hospitalization expenses. Bowen v. Constructors Equip.

Rental Co. , 196 S.E.2d 789, 805 (N.C. 1973). Amounts recovered inexcess 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 theadministrator‘s recovery for wrongful death. Carver v. Carver , 314S.E.2d 739, 744 (N.C. 1984) (holding that, since wrongful death ofchild was caused by sole negligence of the mother, the pain andsuffering awarded to the child‘s esta te 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 ofthe decedent are recoverable by the persons entitled to receive thedamages 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 thedecedent.‖ Bowen v. Constructors Equip. Rental Co. , 196 S.E.2d 789,805 (N.C. 1973); N.C. Gen. Stat. §28A-18-2(b) (2011). Theevidentiary issues to consider while awarding these damages includethe age of the deceased and the age of the person entitled to receive the

damages recovered and their relationship with the deceased. Id. Notethat the damages for loss of income, etc. are losses sustained by theintestate heirs.

North Carolina courts have stated that lost income damages are notrecoverable in the wrongful death of an infant because such damageswould be too speculative. DiDonato v. Wortman , 358 S.E.2d 489



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(N.C. 1987). In the case of an older child, such damages arerecoverable even though ―it would be difficult, if not impossible, toformulate a rule of general application for the measurement of suchdamages an d 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 ―concretemanifestations of the child‘s intent to provide support‖ to the parentsand that the parents ―had reasonable expectations to the child‘sincome.‖ A plaintiff must show these ―manifestations‖ by directevidence, 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 expressedan 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 conductof 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 submittedseparately 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 forwrongful death?‖

If you have answered the (state number) issue ―Yes‖ (and the (statenumber) issue ―No‖) in favor of the estate, the estate is entitled to recovernominal damages even without proof of actual damages. Nominaldamages consist of some trivial amount such as one dollar in recognitionof 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.



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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 forthe death of (name deceased) [proximately caused by the negligence][caused by the wrongful conduct] of the defendant. Such damages mayinclude:

[expenses for care, treatment and hospitalization incident to the injuryresulting 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 nowexplain the law of damages as it relates to (each of) these.

c. Wrongful Death Damages - Medical Expenses. N.C.P.I.--Civil810.44

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 thewrongful conduct] of the defendant.

(The parties have agreed and stipulated that (name deceased‘s) reasonablemedical expenses were (state amount).)

d. Wrongful Death Damages - Pain and Suffering. N.C.P.I. - Civil810.46.

Damages for (name deceased‘s) death also include fair compensation forthe actual physical pain and mental suffering experienced by (namedeceased) between the time of his injury and the time of his death. Youmay consider:

[the nature, extent and degree of the injury(ies) sustained by (namedeceased)]

[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 andcommon sense to the evidence.



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e. Wrongful Death Damages - Funeral Expenses. N.C.P.I. - Civil810.48.

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).)



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NORTH DAKOTAJ. Crisman PalmerRebecca L. Mann

Gunderson, Palmer, Nelson and Ashmore, LLPRapid City, South Dakota

(605) 342-1078



A parent may recover compensation for economic and noneconomicdamages in an action for personal injury of his minor child. N.D.C.C. § 32-03.2-04

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 damagesarising from medical expenses and medical care, rehabilitationservices, custodial care, loss of earnings and earning capacity, lossof income or support, burial costs, cost of substitute domesticservices, loss of employment or business or employmentopportunities and other monetary losses.

2. Compensation for noneconomic damages, which are damagesarising from pain, suffering, inconvenience, physical impairment,disfigurement, mental anguish, emotional distress, fear of injury,loss or illness, loss of society and companionship, loss ofconsortium, injury to reputation, humiliation, and othernonpecuniary 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 economicdamages and compensation for non-economic damages, proximatelyresulting from the injury.



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Economic Damages

The ter m ―economic damages‖ includes damages arising from medicalexpenses and medical care, rehabilitation services, custodial care, loss ofearnings, loss of earning capacity, loss of income, loss of support, cost of

substitute domestic services, loss of employment, loss of business, andloss of employment opportunities.

Compensation for economic damages such as medical expenses andmedical care, custodial care, substitute domestic services, andrehabilitation services is measured by the reasonable value, not exceedingthe actual cost of the goods or services reasonably required and actuallyfurnished to the injured party or that are reasonably certain to be requiredin the future.

Compensation for economic damages such as loss of earnings, loss of

earning capacity, loss of income, loss of support, loss of employment, lossof business, and loss of business opportunities is measured by thereasonable value of those losses the injured party has sustained and thereasonable value of those losses the injured party is reasonably certain tosustain in the future.

Non-economic Damages

The term ―non-economic damages‖ includes damages arising from pain,suffering, inconvenience, physical impairment, disfigurement, mentalanguish, emotional distress, fear of injury, fear of loss, fear of illness, lossof society and companionship, loss of consortium, injury to reputation,and humiliation.

Compensation for non-economic damages such as pain, suffering, physicalimpairment, disfigurement, mental anguish, emotional distress, fear ofinjury, fear of loss, fear of illness, injury to reputation, humiliation, andinconvenience is measured by the reasonableness of the award in the lightof all the circumstances of the case. In considering the reasonableness ofan award, you may consider whether the element of damage is temporaryor permanent and whether in the future it can or will be averted orrelieved.

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

North Dakota has no authority on this issue.



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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 increasethe estate of the deceased, but its purpose is to give a measure of protection tothose persons within a fixed degree of relationship to and dependency on thedeceased because of actual injury sustained by them by reason of the wrongfulkilling of the deceased.‖ Sheets v. Graco, Inc. , 292 N.W.2d 63, 65 (N.D. 1980).Damages under the wrongful death statute are ―base d 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 quant ity ofdamages and ―shall give such damages as it finds proportionate to the injuryresulting 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 NorthDakota 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 damagesarising from [medical expenses and medical care,] [rehabilitativeservices,] [custodial care,] [loss of earnings and earning capacity,][loss of income or support,] [burial costs,] [costs of substitutedomestic services,] [loss of employment or business oremployment opportunities,] and other monetary losses; and

2) Compensation for non-economic damages which are damagesarising from [pain,] [suffering,] [inconvenience,] [physicalimpairment,] [disfigurement,] [mental anguish,] [emotionaldistress,] [fear of injury, loss, or illness,] [loss of society and



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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 andcompanionship [he] [she] [the parents] would have received in thecourse of [married life] [childhood] up to the date of trial.

2) the value of [wife‘s] [husband‘s] [child‘s] services andcompanionship [he] [she] [the parents] [is] [are] reasonably certainto lose in the future [during childhood].



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OHIOBeth Schneider Naylor

Douglas R. DennisFROST BROWN TODD LLC

Cincinnati, Ohio

513.651.6800

Damages Recoverable in a Minor’s Personal Injury Acti on


1. Medical Expenses. Parents may recover all expenditures for medicalcare or treatment, rehabilitation services, or other care, treatment,services, products, or accommodations incurred as a result of theinjury. 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 t he minor‘s negligence claim untilthe age of majority is reached. See OHIO R EV. CODE § 2305.16.Although the parent‘s action for medical expenses and loss ofconsortium belongs to the parent during the child‘s minority, OHIOR EV. CODE § 2305.16 states th at the tolling for the minor‘s personalinjury 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 leastone case has held that if not emancipated, minors may only recoverfuture 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 torepair or replace property that was damaged or destroyed. O HIO R EV. CODE § 2315.18(A)(2). 3

5. Other Expenditures. Minors may recover any other expenditureincurred as a result of the injury but may no t recover attorney‘s feesincurred under economic damages. O HIO R EV. CODE § 2315.18(A)(2).

3 All references to the Ohio Revised Code are dated 2012. All references to the Ohio JuryInstructions are dated Dec 11, 2010 (adopted at the Ohio Judicial Conference).



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Evidence of collateral benefits is admissible under O HIO R EV. CODE §2315.20(A) unless the source of the benefits has a mandatory federalright of subrogation, a statutory right of subrogation or a contractualright of subrogation.


1. Physical Pain and Suffering. Minors may recover damagesincluding, 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 HIOR EV. CODE § 2315.18(A)(4). While a cause of action belongs to theminor, it must be brought b y 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 OhioMisc.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 forloss of consortium. Gallimore v. Children’s Hosp. Med. Ctr., 67 OhioSt.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 forhimself/herself independently. O HIO R EV. CODE § 2315.18(B)(4).

3. Punitive Damages. Minors may recover punitive damages and thosemay also include attorney‘s fees. Under OHIO R EV. CODE §2315.21(B), upon motion of either party, the court shall bifurcate thetrial into two stages — compensatory damages and punitive damages.Only if the jury finds for plaintiff on compensatory damages will thetrial enter the punitive damages phase. Punitive damages are limited

by O HIO R EV. CODE § 2315.21(D) and under O HIO R EV. CODE §2315.21(F), the court, counsel and witnesses are prohibited fromdisclosing the statutory limitations to the jury.

4. Emotional Distress. A cause of action may be stated for the negligentinfliction of emotional distress. Schultz v. Barberton Glass Co ., 4 OhioSt.3d 131, 447 N.E.2d 109 (1983).


1 OJI-CV 207.21 Personal (i nj ur y) (damage): sample instructi on [ Rev.12-11-10] (Lexis 2011).

1. General. You will decide by the greater weight of the evidence anamount of money that will reasonably compensate the plaintiff for theactual (injury) (damage) (proximately) (directly) caused by the(incident).



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2. Consideration. In deciding this amount, you will consider the natureand extent of the (injury) (damage); the effect upon physical health;the pain and suffering experienced; the ability or inability to performusual activities; and the reasonable cost of necessary medical andhospital 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 painand disability in the future. As to such claim(s), you may find nodamage 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. Ifyou find from the greater weight of the evidence that, as a proximatecause of the injuries sustained, the plaintiff has suffered a permanentdisability that is evidenced by way of the inability to perform the usualactivities of life such as the basic mechanical body movements ofwalking, climbing stairs, feeding oneself, driving a car, [and so forth],or by way of the inability to perform the plaintiff‘s usual specificactivities that had given pleasure to this particular plaintiff, you mayconsider, and make a separate award for, such damages.

Any amounts that you have determined will be awarded to the plaintifffor any element of damages shall not be considered again or added toany other element of damages. You shall be cautious in yourconsideration of the damages not to overlap or duplicate the amountsof your award that would result in double damages. For example, anyamount of damages awarded to the plaintiff for pain and sufferingmust not be awarded again as an element of damages for the plaintiff‘sinability to perform usual activities. In like manner, any amount ofdamages awarded to the plaintiff for the inability to perform usualactivities must not be considered again as an element of damagesawarded for the plaintiff‘s pain and suffering, or any other element ofdamages.

5. Speculation. You are not to speculate regarding (permanent) (future)damages. The law deals in probabilities and not mere possibilities. Indeciding (permanent) (future) damages, you may consider only those

things that you find from the evidence are reasonably certain tocontinue.

6. Reasonably Certain . ―Reasonably certain‖ means probable, that is,more likely to occur than not.



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See also 1 OJI-CV 315.01 Personal injury: tort actions (claims arising on andafter 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] (Lexis2011) for more tailored or specific requirements.

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

Parents may recover all expenditures for medical care or treatment,rehabilitation services, or other care, treatment, services, products, oraccommodations incurred as a result of the injury. E.g., Blakeman v. Condoris, 75Ohio App.3d 393, 397, 599 N.E.2d 776 (Ct. App. 1991). However, the parentsclaim for medical expenses terminates upon emancipation of the minor, at whichtime, 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).

Damages Recoverable in a Minor Wrongful Death ClaimI. Wrongful Death of a Minor (who may bring suit):

Section 2125.01 et seq. of the Ohio Revised Code creates a wrongful deathclaim in Ohio. Suit must be brought in the name of the decedent‘s personalrepresentative, and is for the exclusive benefit of the surviving parent(s). O HIOR EV. CODE § 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 parentswhen 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 wrongfuldeath. O HIO R EV. CODE § 2125.02(E)(1). A parent ―abandons‖ a minor if that

parent, without justifiable cause, fails to communicate, care for, or providefinancial assistance for the minor for a period of one year prior to the minor‘sdeath. 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 canonly recover damages under specific circumstances. If clear-and-convincingevidence: (1) the natural parents have disclaimed their parental rights in theminor; (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.3d73, 75 – 76, 658 N.E.2d 809 (Ct. App. 1995), citing Lawson v. Atwood, 42 OhioSt.3d 69, 536 N.E.2d 1167 (1989).



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II. Wrongful Death Damages:

1. Burial and Funeral Expenses. The jury m ay award the decedent‘sreasonable burial and funeral expenses, but this award must be setforth separately from the rest of the verdict. O HIO R EV. CODE §2125.03(B); 1 OJI-CV 315.37.

2. Property Damages. Minors may recover all expenditures incurred torepair or replace property that was damaged or destroyed. O HIO R EV. CODE § 2315.18(A)(2).

3. Life Expectancy . The jury may award damages related to thedecedent minor‘s earnings potential. See Howard v. Seidler, 116 OhioApp.3d 800, 812, 689 N.E.2d 572 (Ct. App. 1996). This includeswhether the minor would have provided support to parents, as well asage, sex, physical and mental condition, and potential for educationaladvancement 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.OHIO R EV. CODE § 2125.02(B)(2) and (B)(3).

5. Mental Anguish. Parents can recover based on mental anguish. O HIOR EV. CODE § 2125.02(B)(5).

6. Punitive Damages. Minors may recover punitive damages and thosemay also include attorney‘s fees. Under OHIO R EV. CODE §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 thetrial enter the punitive damages phase. Punitive damages are limited

by O HIO R EV. CODE § 2315.21(D) and under O HIO R EV. CODE §2315.21(F), the court, counsel and witnesses are prohibited fromdisclosing the statutory limitations to the jury.


1 OJI-CV 315.47 Death, pecuni ary in ju ry [Rev. 12-11-10] (Lexis 2011);1 OJI - CV 315.49 D eath, compensatory damages [Rev. 12-11-10] (Lexis2011).

1. If you find for the plaintiff, you will determine what sum of moneywill compensate the beneficiaries for their pecuniary loss. Pecuniaryloss means such loss as is suffered by the beneficiaries that can bemeasured by a monetary value. This includes the financial support andassistance the beneficiaries might reasonably have received from thedecedent from his earnings during his life, an amount the decedent



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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 duringhis lifetime..

2. In addition to an award of damages for pecuniary loss, you may makean award for reasonable funeral expenses if these expenses areestablished by the evidence.

3. The term pecuniary loss does not include such elements as bereavement, mental pain and suffering of the beneficiaries or the lossof the society, comfort or companionship of the deceased.



261

OKLAHOMADarren VanPuymbrouck

Deborah BoneSchiff Hardin, LLP

Chicago, Illinois

(312) 258-5500



Oklahoma statute provides that the amount of compensation for economiclosses shall not be subject to any limitation. O KLA . STAT . 23 § 61.2 (A).Available economic damages include compensation for:

1. Loss of Earning Capacity. Minor‘s impairment of earning capacityafter 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 injuryis likely to impair future earning capacity, but need not rely on theminor‘s prior work history or education. Hembree v. Southard , 339P.2d 771, 777-78 (Okla. 1959). Any loss of earnings which it isreasonably probable the minor would have received but for the injuriesis recoverable. City of Miami v. Finley , 240 P. 317, 319 (Okla. 1925). b. Medical Expenses. Reasonable expenses of necessary medicalcare, treatment, and services required after reaching eighteen years ofage. 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 torecover reasonable expenses of the necessary medical care, treatment,and services the parent has incurred on behalf of the minor or willincur in the future from now until the minor reaches the age ofeighteen years of age. Stinchcomb v. Holder , 116 P.2d 891, 891 (Okla.1941).

Loss of Wages and Services. Parent may recover any loss of pastearnings of the minor, loss of future earnings until the minor reaches

the age of eighteen, loss of household services of the minor, and lossof household services which the minor would have provided betweennow and the age of eighteen. See Indep. Sch. Dist. I-29 v. Crawford ,688 P.2d 1291, 1294 (Okla. 1984).

3. Punitive Damages. Generally, punitive damages may not exceed thegreater of $100,000 or compensatory damages. If the jury finds that



262

the defendant acted with malice or an insurer intentionally acted in badfaith, however, punitive damages may not exceed the greater of$500,000 or two times compensatory damages or the amount of theincreased financial gain to the defendant. O KLA . STAT . 23 § 9.1;

American Nat. Bank & Trust Co. of Sapulpa v. BIC Corp. , 880 P.2d

420, 425-26 (Okla. Civ. App. 1994).II. Noneconomic Damages:

Oklahoma statute provides that compensation for noneconomic lossesshall not exceed $400,000 regardless of the number of parties against whom theaction is brought or the number of actions brought. O KLA . STAT . 23 § 61.2 (B)(2010). This limitation does not apply in instances where the trier of fact findsthat the minor has suffered: (1) permanent and substantial physical abnormality ordisfigurement; (2) permanent physical functional injury which prevents themfrom being able to independently care for themselves and perform life sustainingactivities; or (3) the defendant‘s acts were in rec kless disregard, grossly negligent,fraudulent, or intentional. Id . §§ (C)(D). Available noneconomic damages includecompensation for:

1. Pain and Suffering. Past and future physical and mental pain andsuffering is a recoverable loss. See Shebester, Inc. v. Ford , 361 P.2d200, 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).


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 fairlycompensate [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 thefollowing 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;



263

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 eighteenyears;

J. The reasonable expenses of necessary medical care, treatment andservices required after reaching the age of eighteen years

b. Personal Injuries – Minor Child – Measure of Parent’s or

G uardian’s Damages. Vernon's Okla. Forms 2d, OUJI-CIV 4.3 (2011ed.).

If you decide for [name of plaintiff's parent or guardian], you must thenfix the amount of [his/her] damages. This is the amount of money, thatwill reasonably and fairly compensate [him/her] for the loss sustained as aresult of the [negligence/(wrongful conduct)] of [Defendant].In fixing the amount you will award [name of plaintiff's parent orguardian], you may consider the following elements:

A. The reasonable expenses of the necessary medical care, treatment andservices [he/she] has incurred in behalf of [name of minor child] or willincur in the future from now until [name of minor child] reaches the age ofeighteen years;

B. Any loss of past earnings of [name of minor child];

C. Any future loss of earnings or impairment of earning capacity of [nameof 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 minorchild] would have given [name of plaintiff's parent or guardian];

E. Any loss of household and similar services which [name of minorchild] would have given [name of plaintiff's parent or guardian] betweennow 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.).



264

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.Forms 2d, OUJI-CIV 5.6 (2011 ed.).

If you find in favor of [Plaintiff] , and grant [him/her] actual damages,then you must also find by a separate verdict, whether [Defendant] (actedin reckless disregard of the rights of others) (and/or) (acted intentionallyand with malice towards others).

[Plaintiff] has the burden of proving this by clear and convincingevidence. By that I mean that you must be persuaded, considering all theevidence 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 rightsif [Defendant] was either aware, or did not care, that there was asubstantial and unnecessary risk that [his/her/its] conduct would causeserious injury to others. In order for the conduct to be in reckless disregardof another's rights, it must have been unreasonable under thecircumstances, and also there must have been a high probability that theconduct would cause serious harm to another person.]

[Malice involves either hatred, spite, or ill-will, or else the doing of awrongful act intentionally without just cause or excuse.]

If you find that [Defendant] acted (in reckless disregard of the rights ofothers) or (intentionally and with malice towards others), you may award

punitive damages against [Defendant] in a later part of this trial. If youfind that [Defendant] did not act (in reckless disregard of the rights ofothers) or (intentionally and with malice towards others), you may notaward punitive damages against [Defendant] .

e. Exemplary or Punitive Damages – Second Stage. Vernon's Okla.Forms 2d, OUJI-CIV 5.9 (2011 ed.).

Ladies and Gentlemen of the jury, you have found in favor of the plaintiffand granted him/her actual damages, and you have also found by aseparate verdict that the defendant (acted with reckless disregard of therights of others) (and/or) (acted intentionally and with malice towardsothers).



265

You may now, in addition to actual damages, grant the plaintiff punitivedamages 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 deterthem from like conduct. The law does not require you to award punitivedamages, and if you do so, you must use sound reason in setting theamount. 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 theseriousness of the hazard to the public and thus whether the conduct thatharmed the plaintiff was particularly reprehensible or bad. Conduct thatrisks harm to many may be more reprehensible than conduct that risksharm 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 thefollowing 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 itsconsequences and how aware [Defendant] was of the hazard andof its excessiveness;

6. The attitude and conduct of [Defendant] upon finding out aboutthe misconduct/hazard;

7. The financial condition of [Defendant] ;

8. (If the defendant is a corporation or other entity) The numberand level of employees involved in causing or concealing themisconduct.

In no event should the punitive damages exceed the greater of: (SelectOne)

[$100,000.00 or the amount of actual damages you have previouslyawarded].



266

OR

[$500,000.00, or twice the amount of actual damages you have previouslyawarded, or the increased financial benefit derived by the defendant as adirect result of the conduct causing the injury to the plaintiff].

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

Parents have the right to sue for compensation of medical expensesincurred 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 medicalexpenses incurred after the minor reaches the age of eighteen belongs to theminor. Bready v. Tipton , 407 P.2d 194, 205 (Okla. 1965). Parents can assigntheir right to recover to the minor child by bringing suit on behalf of the minorchild instead of bringing an individual claim. O KLA . STAT . 10 § 17.1.

Damages Recoverable in a Minor Wrongful Death ClaimI. Economic Damages:

The Oklahoma Constitution forbids statutory limitations on compensationavailable in wrongful death suits. O KLA . CONST . Art. 23 § 7.

1. Medical and Burial Expenses. Oklahoma statute provides for thecompensation of the loss of companionship and love of the child.OKLA . STAT . 12 § 1055.

2. Loss of Service and Support. Oklahoma statute provides for the

compensation of the loss of anticipated services and support, and theloss of monies expended by parents or guardian in support,maintenance and education of minor child. Id.


The Oklahoma Constitution forbids statutory limitations on compensationavailable in wrongful death suits. O KLA . CONST . 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. OKLA

. S

TAT. 12 § 1055.

2. Destruction of the Parent/child Relationship. Oklahoma statute provides for the compensation of the destruction of the parent childrelationship. Id.



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3. Punitive damages. The Oklahoma Supreme Court extended theavailability of punitive damages to minor wrongful death suits. Roachv. Jimmy D. Enterprises, Ltd. , 912 P.2d 852, 856 (Okla. 1996); O KLA . STAT . 12 § 1053. Generally, punitive damages may not exceed thegreater of $100,000 or compensatory damages. If the jury finds that

the defendant acted with malice or an insurer intentionally acted in badfaith, however, punitive damages may not exceed the greater of$500,000 or two times compensatory damages or the amount of theincreased financial gain to the defendant. O KLA . STAT . 23 § 9.1.


a. Damages for Wrongful Death of a Minor Child. Vernon's Okla.Forms 2d, OUJI-CIV 8.2 (2011 ed.).

[Plaintiff] in this action sues to recover damages for the death of [name ofdecedent], a minor child.

If you decide for the [Plaintiff] on the question of liability, in determiningthe amount of damages [he/she] is entitled to recover, you may considerthe 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 fairlycompensate for those above-named elements of damage, which you findwere directly caused by the [negligence/wrongful conduct] of [Defendant].

b. Exemplary or Punitive Damages – First Stage. Vernon's Okla.Forms 2d, OUJI-CIV 5.6 (2011 ed.).

If you find in favor of [Plaintiff] , and grant [him/her] actual damages,then you must also find by a separate verdict, whether [Defendant] (actedin reckless disregard of the rights of others) (and/or) (acted intentionallyand with malice towards others).

[Plaintiff] has the burden of proving this by clear and convincingevidence. By that I mean that you must be persuaded, considering all the



268

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 rightsif [Defendant] was either aware, or did not care, that there was asubstantial and unnecessary risk that [his/her/its] conduct would causeserious injury to others. In order for the conduct to be in reckless disregardof another's rights, it must have been unreasonable under thecircumstances, and also there must have been a high probability that theconduct would cause serious harm to another person.]

[Malice involves either hatred, spite, or ill-will, or else the doing of awrongful act intentionally without just cause or excuse.]

If you find that [Defendant] acted (in reckless disregard of the rights ofothers) 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 ofothers) or (intentionally and with malice towards others), you may notaward punitive damages against [Defendant] .

c. Exemplary or Punitive Damages – Second Stage. Vernon's Okla.Forms 2d, OUJI-CIV 5.9 (2011 ed.).

Ladies and Gentlemen of the jury, you have found in favor of the plaintiffand granted him/her actual damages, and you have also found by aseparate verdict that the defendant (acted with reckless disregard of therights of others) (and/or) (acted intentionally and with malice towards

others) .You may now, in addition to actual damages, grant the plaintiff punitivedamages 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 deterthem from like conduct. The law does not require you to award punitivedamages, and if you do so, you must use sound reason in setting theamount. 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 theseriousness of the hazard to the public and thus whether the conduct thatharmed the plaintiff was particularly reprehensible or bad. Conduct thatrisks harm to many may be more reprehensible than conduct that risksharm to only a few. However, you may not use punitive damages to



269

punish [Defendant] directly on account of harms that [Defendant] mayhave caused to others.]

In determining the amount of punitive damages, you may consider thefollowing 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 itsconsequences and how aware [Defendant] was of the hazard andof its excessiveness;

6. The attitude and conduct of [Defendant] upon finding out aboutthe misconduct/hazard;

7. The financial condition of [Defendant] ;

8. (If the defendant is a corporation or other entity) The numberand level of employees involved in causing or concealing themisconduct.

In no event should the punitive damages exceed the greater of: (SelectOne)

[$100,000.00 or the amount of actual damages you have previouslyawarded].

OR

[$500,000.00, or twice the amount of actual damages you have previouslyawarded, or the increased financial benefit derived by the defendant as adirect result of the conduct causing the injury to the plaintiff].



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OREGONRobert F. Friedman

Harman Claytor Corrigan & Wellman, P.C.Richmond, Virginia

(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 wouldindicate fairly the capacity of the plaintiff to earn money in hisvocation, and the probability of his being able to do so in the futureshould be admitted; but, where such evidence consists of merequesswork and speculation upon which might happen in the future, itshould 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. Holderv. Petty , 267 Or. 94, 101, 514 P.2d 1105, 1108 (1973).

4. Loss of Child Services. A parent may recover for the loss of a child‘sservices. See Jones v. Flannigan , 270 Or. 121, 526 P.2d 543 (1974).

5. Loss of Society is NOT recoverable. Under O.R.S. § 30.010, whichallows a parent to maintain a cause of action for an injured child, a

parent may not recover for loss of the child‘s society an dcompanionship. Beerbower v. State ex rel. Oregon Health SciencesUniversity , 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, 175P.3d 418 (2007). The previous statute capping noneconomic damagesto $500,000 has been recognized as unconstitutional by the Oregon



271

Supreme Court. See Lakin v. Senco Products, Inc . , 329 Or. 62, 987P.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 theguardian ad litem on behalf of the child . ―It is genera lly held that medicalexpenses incurred due to the negligent injury of a minor unemancipated child aredamages suffered by the parent and not the child. This rule is consistent with ORS109.010 which places responsibility on the parents to maintain their children, andwith ORS 109.020 which limits access to the child's estate for the payment of hisexpenses.‖ Palmore v. Kirkland Laboratories, Inc. , 270 Or. 294, 305-06, 527 P.2d391, 396 (1974). Nevertheless, ―[e] ven though the medical expense damage has

been incurred by the parents, the Oregon Legislature has determined that suchdamage 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 ofaction for recovery of damages to the child caused by a wrongfulact, the parent, parents, or conservator of the estate of the childmay file a consent accompanying the complaint of the guardian adlitem to include in the cause of action the damages as, in all thecircumstances of the case, may be just, and will reasonably andfairly compensate for the doctor, hospital and medical expensescaused by the injury.

(2) If the consent is filed as provided in subsection (1) of thissection and the court allows the filing, no court shall entertain acause 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 decedentminor‘s estate. Dasteur v. American Economy Ins. Co. , 127 Or.App. 686,689-90874 P.2d 85, 87 (1994) The personal representative may bring suit on behalf ofthe deceased minor child provided that, under the law of intestate succession ofthe 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).



272


O.R.S. § 30.020 provides:

(1) When the death of a person is caused by the wrongful act oromission of another, the personal representative of the decedent,for the benefit of the decedent's surviving spouse, survivingchildren, surviving parents and other individuals, if any, who underthe law of intestate succession of the state of the decedent'sdomicile would be entitled to inherit the personal property of thedecedent, and for the benefit of any stepchild or stepparent whetherthat stepchild or stepparent would be entitled to inherit the personal

property of the decedent or not, may maintain an action against thewrongdoer, if the decedent might have maintained an action, hadthe decedent lived, against the wrongdoer for an injury done by thesame act or omission.


In a wrongful death action, damages for the parents of the deceasedminor ―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 anamount which:

a) Includes reasonable charges necessarily incurred fordoctors' services, hospital services, nursing services, othermedical services, burial services and memorial servicesrendered for the decedent;

b) Would justly, fairly and reasonably have compensated thedecedent for disability, pain, suffering and loss of incomeduring the period between injury to the decedent and thedecedent's death;

c) Justly, fairly and reasonably compensates for pecuniaryloss to the decedent's estate;

d) Justly, fairly and reasonably compensates the decedent'sspouse, children, stepchildren, stepparents and parents for

pecuniary loss and for loss of the society, companionshipand services of the decedent; and

e) Separately stated in finding or verdict, the punitivedamages, if any, which the decedent would have beenentitled to recover from the wrongdoer if the decedent hadlived.



273

PENNSYLVANIAKatherine J. Sullivan

Deasey, Mahoney, Valentini & North, Ltd.Philadelphia, Pennsylvania

(215) 587-9400




2. Medical and Other Related Expenses. Medical and other relatedexpenses are recoverable. Under Pennsylvania law, a tortfeasor isliable for damages that are reasonably foreseeable consequences of hisaction. 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 ofearning capacity, either party in a negligence action is entitled tointroduce expert or other evidence to establish or refute actualexpected 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 asintegral 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 underPennsylvania law. Under Pennsylvania law, loss of life‘s pleasures areinterrelated with pain and suffering. Carpinet v. Mitchell , 2004 PASuper 197; 853 A.2d 366 (Pa. Super. 2004).

2. Punitive Damages. Pennsylvania has adopted Section 908(2) of theRestatement (Second) of Torts regarding the imposition of punitivedamages. 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 isoutrageous because of the defendant‘s evil motive or his



275

Under Pennsylvania law, personal injury to a minor gives rise to twoseparate and distinct causes of action, one the parents claim for medical expensesand 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 bemade by relying on one of two statutes: Pennsylvania‘s Wrongful Death Act, 42Pa. 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 personalrepresentative 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 arecompensation to individual members of the family for their loss.

A survival action is not a new cause of action but one which "merelycontinues in [the decedent's] personal representatives the right of action whichaccrued 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 aremeasured 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 enforcedin one action, and if independent actions are instituted, they must be consolidatedfor trial. However even though the two actions have been consolidated, a jurymust bring in a separate verdict for each cause of action. Feldman, PennsylvaniaTrial Guide § 33.6. In addition, actions for damages under the two acts arecumulative, not alternative, and are not to overlap or result in duplication ofdamages. Pezulli v. D'Ambrosia , 344 Pa. 643, 26 A.2d 659 (1942). See generallySchwab v. P.J. Oesterling & Son, Inc ., 386 Pa. 388, 126 A.2d 418 (1956).

II. Economic Damages


2. Funeral, Medical and Other Related Expenses . Funeral, medicaland other related expenses are recoverable und er Pennsylvania‘sWrongful Death Act. 42 Pa. C.S. § 8301.



276

3. Loss of Wages or Wage-Earning Capacity . Under the PennsylvaniaSurvival Act, 42 Pa. C.S. § 8302, lost wages and loss of futureearnings are recoverable, less the cost of maintenance, from the timeof decedent‘s death until the end of his lifespan. Kiser v. Schulte, 648A.2d 1 (Pa.1994).

III. Noneconomic Damages

1. Loss of Society and Companionship . Pennsylvania allows a parentto sue for the lost value of an injured child's services, but recognizesno such cause of action for a parent's loss of a child'sconsortium. 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‘sdeath. Pain and suffering may not be recovered under a claim basedsolely on Pennsylvania‘s Wrongful Death Act.

3. Punitive Damages . Under Pennsylvania law, ―punitive damages arenot permitted in a wrongful death action.‖ MacLeod v. Russo , 2010Pa. 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, andaccordingly, 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 pleasuresis not a separate element of damages in survival act claims, but rather acomponent of the pain and suffering endured from the time betweenthe accident until death.‖ MacLeod v. Russo , 2010 Pa. Dist. & Cnty.Dec. LEXIS 219 (Pa. County Ct. 2010) (citing Willinger v. MercyCatholic 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 actionfor negligent infliction of emotional distress in Pennsylvania when thefollowing criteria are met: (1) plaintiff was located near the scene ofthe accident as opposed to being a distance away from it; (2) the shockresulted from the direct emotional impact upon plaintiff of the sensoryand contemporaneous observance of the accident, as contrasted withlearning of it from others afterward; and (3) plaintiff and the victimwere closely related. Neff v. Lasso , 555 A.2d 1304, 1308 (Pa. Super.1989). Claims for emotional distress are compensable, however,



277

Pennsylvania generally denies these claims unless they areaccompanied 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. PennsylvaniaSuggested Standard Civil jury Instructions7.220

When a person dies, the damages they would have been entitled to go totheir estate or survivors. The estate and survivors are just as entitled tothese damages as the deceased person would have been had [he] [she]survived.

The plaintiff, as the [administrator] [administratrix] of the estate of thedecedent, claims damages under the Wrongful Death Act and the Survival

Act. [He] [She] is entitled to make claim under both acts, but the damagesmust 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 coverall hospital, medical, funeral, burial, and estate administrationexpenses incurred. [It has been stipulated that these expensesamount to $ [amount].]

2. The plaintiff is entitled to be awarded an amount that will fairlyand adequately compensate the family of the decedent (wife,children, parents, etc.) for their loss of any contributions theywould have received between the time of the death of the decedentand today. This includes all amounts of money that the decedentwould have spent for or given to [his] [her] family for such itemsas shelter, food, clothing, medical care, education, entertainment,gifts, and recreation.

3. The plaintiff is entitled to be awarded the value of all sums thatthe 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 decedentwould have contributed to [his] [her] family's support, the plaintiffis entitled to be awarded a sum that will fairly and adequatelycompensate [his] [her] family for the monetary value of theservices, society, and comfort that [he] [she] would have given to



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[his] [her] family had [he] [she] lived, including such elements aswork around the home, provision of physical comforts andservices, 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 ofthe services that the decedent as a [father] [mother] would havecontributed to [his] [her] children. It will be your duty to considerthe monetary value of such services as guidance, tutelage, andmoral upbringing that you believe the children would havereceived, 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 asfollows:

1. [If a period intervenes between accident and death:]The plaintiff is entitled to be awarded the total amount thedecedent 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 thatthe decedent would have earned between the date of [his] [her]death and today. Net earnings are decided as follows: you mustfirst 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 monetarycontributions [he] [she] would have made to [his] [her] familyduring this period (which you have already awarded to the plaintiffunder the Wrongful Death Act) and the amount of money that thedecedent 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 economicalliving expenses, such as food, shelter, and clothing, that thedecedent would have been required to spend in order to maintainlife during this period.

3. The plaintiff is entitled to be awarded the value of the netamount that the decedent would have earned between today andthe end of [his] [her] life expectancy. Again, net earnings for this

period are decided as follows: you must first calculate the totalamount of the decedent's gross earnings between today and the endof [his] [her] life expectancy; from this amount you must deductthe probable cost of [his] [her] necessary and economical livingexpenses required to sustain life during this period [together with



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the amount of monetary contributions [he] [she] would have madeto [his] [her] family during this period (which you have alreadyawarded under the Wrongful Death Act)]. Your award to the estatefor total lost future net earnings thus represents the total netearnings 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 thisaccident.

C. You are to add each of these items of damages together in its propercategory and return your verdict in two lump sum amounts, one under theWrongful Death Act and the second under the Survival Act.



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RHODE ISLANDKimberly Simpson

Catherine ShaghalianVetter & White

Providence, Rhode Island

401-421-3060


No claim for damages should be allowed to stand where such claim is notsupported by the required degree of proof, or is speculative, or imaginary, or isclearly 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 medicalcosts claimed must be found medically reasonable and must benecessarily incurred in providing care, treatment and medicalattendance. In assessing damages, the jury should consider evidencethat establishes that plaintiff‘s medical treatment was necessary as a result of the incident/accident and the reasonable charge for thetreatment. 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) Lebonv. 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 reasonablycertain to become necessary as a proximate result of a plainti ff‘sinjuries. Shepardson v. Consolidated Medical Equipment , 714 A.2d1181 (R.I. 1988); Markham v. Cross Transportation, Inc. , 376 A.2d1359 (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.2d872 (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 , 714A.2d 1181 (R.I. 1988).

3. Loss of Earnings/Wages. Plaintiff is entitled to be compensated forthe amount of earnings/wages plaintiff was reasonably certain to haveearned if he/she had not been injured Jackson v. Choquette & Co. , 80A.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 andmental 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 thechild 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 ofearning capacity are recoverable. The proper measure of damages isthe difference between what the plaintiff, if uninjured, would have

been capable of earning. D’Andrea v. Sears, Roebuck & Co., 287 A.2d629 (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, andrestriction of bodily motion that is caused by the pain or discomfort brought about by moving. Suffering means recognizing the pain, thedanger resulting from the pain, and the knowledge that the pain andtreatment 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 so-called "rule of thumb" for the computation of the damages to beawarded for pain and suffering. The establishment of the amount to beawarded for such damages is left to the discretion of the jury. A jury‘sverdict for pain and suffering damages will only be reduced when itappears that they are grossly excessive. To be grossly excessive, theremust be a demonstrable disparity between the amount awarded and the

pain and suffering shown to have been endured as a consequence ofthe 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 compensableelement of damages. Arlan v. Cervini , 478 A.2d 976, 980 (R.I. 1984).

3. Future Pain and Suffering. Damages for future pain and sufferingare recoverable if plaintiff proves he/she is reasonably certain toexperience future pain and suffering. Markham v. CrossTransportation, 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 inand of themselves warrant an inference that they will cause future painand 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 Island10002.5.

5. Bodily Injury and Impairment. Damages for bodily injury andimpairment sustained as a proximate result of the incident arerecoverable as are any impairment or disability that resulted fromthose bodily injuries. Model Civil Jury Instructions For Rhode Island10001, 10002.5

6. Loss of Consortium for Parents. Parents are entitled to recoverdamages for the loss of their unemancipated minor child's society andcompanionship caused by tortious injury to the minor. R.I. G. L. § 9-1-41.

7. Emotional Distress for Parents. A parent may recover damages fornegligent infliction of emotional distress. In order to recover, however,a party must (1) be a close relative of the victim, (2) be present at thescene of the accident and be aware that the victim is being injured, and(3) as a result of experiencing the accident, suffer serious emotionalinjury that is accompanied by physical symptomatology. Marchetti v.

Parsons , 638 A.2d 1047, 1052 (R.I. 1994). See also Reilly v. UnitedStates, 547 A.2d 894, 896 (R.I. 1988).

8. Punitive Damages . Punitive damages are recoverable where there isevidence of such willfulness, recklessness or wickedness on the part ofthe party at fault as amounts to criminality, which for the good ofsociety and warning to the individual, ought to be punished.

Palmisano v. Toth , 624 A.2d 314, 318 (R.I. 1993).


a. Compensable Damages for Personal Injuries. Model Civil JuryInstructions For Rhode Island 10001.

If you find the defendant is liable to plaintiff for the incident and/oraccident that occurred, then you must consider the question of damages.Damages are defined in law as that amount of money that will compensatean injured party for the harm or loss that he/she has sustained. Therationale 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, theloss 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 reasonablycompensate plaintiff insofar as the same may be computed in money. Youmust confine your deliberations to the evidence, and you must not indulgein guesswork, speculation or conjecture.

See also Model Civil Jury Instructions For Rhode Island 1002 and 1003for jury instructions for specific elements of compensable damages.

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

While there is no Rhode Island case or statute that speaks directly to thisissue, some indirect support can be found for a parent‘s right to sue for a minor‘smedical expenses. See R.I.G.L. § 33-15.1-1 (provides that parents are equallycharged with their child‘s care, nurture, welfare and education); Julian v. ZayreCorp. , 388 A.2d 813 (R.I. 1978) (involved claim made by mother for child‘smedical 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 thatchild, 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 tofather 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, ifdeath had not ensued, have entitled the party injured to maintain an action andrecover 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 fordamages, notwithstanding the death of the person injured, and although the deathshall have been caused under such circumstances as amount in law to a felony.‖

I. Economic Damages

1. Loss of Future Earning Capacity. Damages for loss of futureearning capacity are recoverable. R.I.G.L. §10-7-1.1; They aredetermined as follows:

(1) Determine the gross amount of the decedent's prospective incomeor 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 orher own exertions, both physical and mental…

(2) Deduct from the amount determined in subdivision (1) theestimated personal expenses that the decedent would probably haveincurred 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 thedate of the award. In determining the award, evidence shall beadmissible concerning economic trends, including but not limited to

projected purchasing power of money, inflation, and projected increaseor 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 agewould not belong to the decedent. Williams v. United States , 435 F.2d804 (1st Cir. 1970).

2. Medical expenses. Medical expenses until the time of death arerecoverable. R.I.G.L § 10-7-5.

3. Diminution of Earning Capacity. Damages for diminution ofearning 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 andsuffering damages in a wrongful death case. Such an award, however,must be consistent with the evidence and not unduly motivated bysympathy, 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 forloss of consortium. R.I.G.L. § 10-7-1.2. When awarding damages forloss of society and companionship in cases arising out of the wrongfuldeath 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 interestsand 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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SOUTH CAROLINADeirdre McGlinchey

Michelle L. MillerCara E. Hall

McGlinchey Stafford PLLC

New Orleans, Louisiana(504) 586-1200

Damages Recov erable in a Minor’s Personal Injury Action

―When a minor receives personal injuries proximately caused by theactionable negligence, recklessness and willfulness of another, a cause of actionarises in favor of the injured minor and such minor can maintain a suit to recoverthe resulting damages through a guardian Ad litem.‖ Hughey v. Ausborn , 154S.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, costsassociated with education, custodial care, loss of earnings and earningcapacity, loss of income, burial costs, loss of use of property, costs ofrepair or replacement of property, costs of obtaining substitute domesticservices, a claim for loss of spousal services, loss of employment, loss of

business or employment opportunities, loss of retirement income, andother monetary losses.‖ S.C. Code Ann. § 15 -32-210(3) (1976).

These actual damages are assessed in money and the principle isthat ―the person injured shall receive compensation commensurate withhis loss or injury, and no more.‖ Kapuschinsky v. United States, 259F.Supp. 1, 6 (D.S.C. 1966). The recovery should be proportionate to theinjuries sustained and should be sufficient to recompense him for hisinjuries. 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 justcompensation for the other elements which include ―pain and suffering,medical expenses and any future damages resulting from permanentinjuries.‖ 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 earnedanything.‖ 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 caninfer the damage and use their sound judgment and experience todetermine the future earning capacity. Id.


Noneconomic damages are defined as ―nonpecuniary damagesarising from pain, suffering, inconvenience, physical impairment,disfigurement, mental anguish, emotional distress, loss of society andcompanionship, loss of consortium, injury to reputation, humiliation, othernonpecuniary damages, and any other theory of damages including, butnot 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 fo r the limitations, resulting from the defendant‘snegligence, on the injured person‘s ability to participate in and derive

pleasure from the normal activities of daily life, or for the individual‘sinability to pursue his talents, recreational interests, hobbies, oravocations.‖ Boan v. Blackwell , 541 S.E.2d 242, 244 (S.C. 2001).

2. Pain and Suffering. ―An award for pain and suffering compensatesthe injured person for the physical discomfort and the emotionalresponse 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 asthe result of the defendant‘s negligence.‖ Boan v. Blackwell , 541S.E.2d 242, 244 (S.C. 2001).

In addition to statutory non-economic damages, a plaintiff mayrecover punitive damages.

Punitive Damages. ―The purposes of punitive damages are to punishthe wrongdoer and deter the wrongdoer and others from engaging insimilar 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 ifthe plaintiff recovers actual damages. Garner v. Wyeth Labs., Inc. ,



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585 F.Supp. 189, 194 (D.S.C. 1984). Punitive damages ―may berecovered when a tortfeasor acts willfully, wantonly, or in recklessdisregard of the rights of another. City of Greenville v. W.R. Grace &Co. , 827 F.2d 975 (4th Cir. 1987). The test for awarding punitivedamages is ―whether the tort has been committed in such a manner or

under circumstances that a person of ordinary reason or prudencewould have been conscious of it as an invasion of the plaintiff‘srights.‖ Cartee v. Lesley , 350 S.E. 2d 388, 390 (S.C. 1986). Punitivedamages must be proven by clear and convincing evidence. S.C. CodeAnn. § 15-33-135 (1976).

III. Jury Instructionsa. 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. Theyare denied by the defendant‘s answer. Since the plaintiff has initiated and

brought this lawsuit against the defendant, the burden of proof is upon himto establish all three by the greater weight or preponderance of theevidence:

(1) That the defendant was negligent or careless and/orreckless, 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/orrecklessness, willfulness, and wantonness was the proximate causeof the plaintiff‘s injuries.

What is negligence? Negligence is defined in the law as the absence ofdue care. The want or lack of due care or ordinary care. The wordcarelessness conveys the same idea as negligence by the defendant.

Negligence is the failure, by omission or commission, to exercise due careas a person of ordinary reason and prudence would exercise in the samecircumstances. It is the doing of some act which a person of ordinary

prudence would not have done under similar circumstances or failure to dowhat a person of ordinary prudence would have done under similarcircumstances.

In determining whether a particular act is negligent, the test you apply iswhat would a person of ordinary reason and prudence do under thosecircumstances at that time and place.



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It is incumbent upon the plaintiff to prove the defendant was negligent inone or more of the particulars as alleged in the complaint. It is notrequired that the plaintiff prove them all, but it is absolutely essential thatthe 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 factthat damages have been sustained, raises no presumption of negligence. Asurmise or conjecture that the defendant was negligent is not evidencethereof. The bare fact that an innocent party sustained injury or damagedoes not place any responsibility on another party unless you find thatthere was some act of negligence on the part of that party which causedthe 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 bewhether the plaintiff has proved that such negligence was the proximatecause of the injury or damage. Negligence is not actionable unless it

proximately causes the plaintiff‘s injuries. A plaintiff may only recoverfor injuries proximately caused by the defendant‘s negligence.

Even if you should find that the plaintiff has proved the defendant wasnegligent [or reckless, willful, and wanton], but has failed to prove thatsuch negligence [or recklessness, willfulness, and wantonness] was a

proximate cause of the injury, the plaintiff would have failed to make outhis case and you would be required to find for the defendant. However, ifthe plaintiff has proved these two propositions, then it would be necessaryfor him to prove his damages.‖

b. Comparative Negligence. Anderson, Anderson‘s S.C. Requests toCharge – Civil, § 23-1 (2009). ―Comparative negligence is the law in South Carolina. Under the doctrineof comparative negligence, the plaintiff's negligence does notautomatically bar recovery unless such negligence exceeds that of thedefendant. A plaintiff in a negligence action may recover damages if hisnegligence is not greater than that of the defendant. The amount of the

plaintiff's recovery shall be reduced in proportion to the amount of hisnegligence.

You, the jury, must apportion fault between the plaintiff and defendant ina negligence action. The plaintiff may recover damages when hisnegligence is not greater than that of the defendant. The plaintiff'sdamages, however, are reduced in proportion to the amount of hisnegligence.



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One of the defenses interposed by the defendant is that of comparativenegligence. 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 Iwas and the fault of each of us combined and concurred with that of theother 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 ofeach of us for the accident to have happened, but the plaintiff was more atfault than I was.

The plaintiff has the burden of proving the negligence and fault, if any, ofa defendant. A defendant has the burden of proving the negligence andfault, if any, of the plaintiff and the degree of such.

Where negligence has been established on the part of both the defendantand the plaintiff, then you must weigh or compare the respectivecontributions of each person to the occurrence. Considering the conduct ofeach 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 partyis not to be measured solely by the character thereof, nor solely by thenumber of respects in which he is found to have been at fault. It is theconduct of a party considered as a whole which must be determined. Thatis to say, once it has been established that each has been at fault, it is thenthe jury's function to weigh their respective contributions to the result,which will, regardless of the nature of their acts or omissions, determinewho made the larger contribution and to what extent it exceeds or is lessthan that of the other.

It is the conduct of the parties considered as a whole which is beingmeasured by you in the form of a percentage.

If you find that the occurrence was proximately caused by negligence onthe 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 youmay 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 isentitled to recover any damages which you may find he has sustained as aresult of the occurrence after you have reduced his damages in proportionto the degree of the plaintiff's own negligence. On the other hand, if thedefendant was not negligent or if the negligence of the defendant was lessthan the negligence of the plaintiff, then the plaintiff is not entitled torecover any damages. If you find the plaintiff's negligence to be greater



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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 arecovery by an injured plaintiff if the negligence of the injured plaintiffwas greater than that of the defendant. Another way of saying this is to saythat a plaintiff can recover only when his negligence, if any, is equal to orless 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 evidencethat the plaintiff was negligent and that the plaintiff's negligence wasgreater than that of the defendant.

The second possible effect of comparative negligence is that, if proven, itwill reduce or partially defeat the plaintiff's recovery. This applies whenthe 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 wasnegligent but that the plaintiff's negligence was equal to or less then thedefendant's negligence.

Please remember that the plaintiff's negligence must have contributed proximately to his injury. If the negligence of the plaintiff operated onlyremotely and not proximately to cause the injury, the plaintiff is neither

barred from recovery nor is his recovery red uced in any way.‖

c. Standard of Care of a Child. Anderson, Anderson‘s S.C. Requests toCharge – Civil, § 20-7 (2009).

―A child under the age of fourteen years is not required to conform to anadult standard of care. A minor's conduct should be judged by the standardof behavior to be expected of a child of like age, intelligence, andexperience under like circumstances. A child may be so young as to bemanifestly and utterly incapable of exercising any of those qualities ofattention, perception, knowledge, experience, intelligence, and judgmentwhich are necessary to enable the child to perceive a risk and to realize itsunreasonable character. On the other hand, it is obvious that a minor whohas not yet attained majority may be quite as capable as an adult ofexercising 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 tocompensate, 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



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monetarily possible. In other words, actual or compensatory damagesinclude compensation for all injuries which are naturally the proximateresult 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 forinjuries suffered or losses sustained. They are such damages as willsimply make good or replace the loss caused by the wrong or injury.Actual damages are damages in satisfaction of, or in recompense for, lossor 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 compensatethe plaintiff for the losses proximately caused by the defendant‘s wrong sothat the plaintiff will be in the same position he would have been in if

there had been no wrongful injury. Actual damages include compensationfor all injuries which are naturally the proximate result of the allegedwrongful conduct of the defendant.

The existence, causation, or amount of damages cannot be left toconjecture, guesswork or speculation. However, proof of amount of losswith absolute or mathematical certainty is not required. Damages must be

proved with a reasonable degree of certainty. The evidence presented bythe 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 theevidence that he is entitled to compensatory damages.‖

e. Nominal Damages. Anderson, Anderson‘s S.C. Reques t 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'snegligence caused the plaintiff some damage, but the evidence does notconvince you the plaintiff sustained any real or substantial damages as a

proximate result of the defendant's negligence, you could find nominaldamages 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 lawrecognizes 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 ofan actual injury. Nominal damages are a trivial or trifling sum awarded to



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remedies in regard to such wrongful and negligent act as though such illegitimatechild had been born in lawful wedlock.‖ S.C. Code An n. § 15-51-30 (1976).

South Carolina also allows for Survival Damages. ―The South Carolinasurvival statute provides that a cause of action for injuries to a person shallsurvive the person‘s death, with damages recoverable by the legal representativeof 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 includerecovery for the deceased‘s conscious pain and suffering, mental distress of thedeceased, 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 childdies; 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 todetermine pecuniary loss: ―(1) the prospective earnings of the decedentsubsequent to death, (2) calculated on the basis of his ‗workexpectancy‘, 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 ―formulaused in the Brooks case is not applicable for determining pecuniaryloss in the case of a minor, therefore, making the method of proof insuch 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 duringvacations. Id. He planned on joining the family business as an equal

partner when he reached the age of majority. Id. Out of the money heearned he paid for his own clothing, his car and many othernecessaries of life. Id. In establishing the amount of pecuniarydamages owed, the court stated that: ―[n]o matter what amounts ortypes of contribution are shown, damages are recoverable only for the

period of the child‘s minority and for such benefits after minority asare probable and reasonably certain from the evidence.‖ Id.

In a wrongful death case where both children died, the mother wasawarded pecuniary damages for the anti-depressant she would berequired 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 funeralexpenses under the category of pecuniary damages. Id.



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2. Funeral Expenses. Funeral expenses are authorized by S.C. CodeAnn. § 15-5-100 (1976). Smalls v. South Carolina Dept. of Educ. , 528S.E.2d 682, 686 (S.C. Ct. App. 2000).

II. Noneconomic Losses:

1. Nonpecuniary damages. Parents are entitled to a presumption ofnonpecuniary damages in a wrongful death case. Scott v. Porter , 530S.E.2d 389, 394 (S.C. Ct. App. 2000). Specifically, parents mayrecover for ―mental shock and suffering, wounded feelings, grief andsorrow, loss of companionship, and deprivation of the use ofintestate‘s society, the loss of his experience, know ledge, 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 resul t of recklessness,willfulness, or malice, as they may think proportioned to the injuryresulting 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 thecomplaint. S.C. Code Ann. § 15-32-510 (1976).


a. Finding Instruction. Anderson, Anderson‘s S.C. Request to Charge – Civil, § 35-2 (2009).

There are three essential elements of the plaintiff‘s cause of action. Theyare denied by the defendant‘s answer. Since the plaintiff has made thesecharges as the foundation of his claimed right of damages against thedefendant, the burden of proof is upon the plaintiff to establish all three bythe 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 inthe complaint.

Second, that the plaintiff‘s intestate, __________ _, came to his untimelydeath 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 conductas 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 bythe statutory beneficiaries resulting from the death of the decedent. Thus,the question of damages is not directed toward the value of the human lifethat was lost, but rather the damages suffered by the beneficiaries as aresult of the wrongful death.

South Carolina Code section 15-51- 40 (2005) reads: ―In every [wrongfuldeath] action the jury may give damages, including exemplary damageswhen the wrongful act, neglect, or default was the result of recklessness,willfulness, or malice, as they may think proportioned to the injuryresulting from the death to the parties respectively for whom and forwhose 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 ofmoney, or of something by which money or something of moneyvalue 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 theeducation 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 thewrongful act. Only such future or prospective damages may be awarded asthe evidence renders it reasonably certain will of necessity result from thealleged injury.

In addition to actual damages, punitive damages may be awarded in awrongful death action. The wrongful death statute expressly authorizes



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punitive damage awards in wrongful death actions when the defendant hasacted recklessly, willfully, or maliciously. You may award punitivedamages in this case if you find by clear and convincing evidence that ―thewrongful act, neglect, or default was the result of recklessness, willfulness,or malice.

c. Non-Pecuniary Damages. Anderson, Anderson‘s S.C. Request toCharge – Civil, § 35-8 (2009).

In an action for wrongful death of a minor child, the parents are entitled toa presumption of non-pecuniary damages.

d. Pecuniary Damages. Anderson, Anderson‘s S.C. Request to Charge – 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 caseinvolving the wrongful death of a minor child.

e. Funeral Expenses. Anderson, Anderson‘s S.C. Request to Charge – 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: ―Damagesrecoverable under [the wrongful death statute] may include reasonablefuneral expenses.

f. Future Damages – Life Expectancy Table. Anderson, Anderson‘sS.C. Request to Charge – Civil, § 35-12 (2009).

In deciding the amount of money to include in your award of futuredamages, it will be necessary for you to decide the probable lifeexpectancy of the decedent. To aid you in making this determination, youmay consider as evidence a life expectancy table.

Life expectancy is the period of time in which a person of a given age andsex is expected to live according to statistical or actuarial tables. Life

expectancy is merely an estimate of the probable average remaining lengthof life of all persons in our State of a given age, and that estimate is basedon a limited record of experience. The inference which may be drawnfrom the table is evidence bearing on the life expectancy of the decedent,including his state of health, habits and occupation.



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In this State, we have a statute known as the life expectancy tables. It issection 19-1-150 of the South Carolina Code, which provides:

When it is necessary, in any civil action or other mode of litigationto establish the life expectancy of any person from any period in

his life, whether he be living at the time or not, the [lifeexpectancy] table. . . shall be received in all courts and by all person having power to determine litigation as evidence (alongwith other evidence as to his health, constitution and habits) of thelife expectancy of such person. In determining a person‘s age as ofany particular time, periods of six months or more beyond the lastfull 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 timeof his death, ____ years of age. According to the governing life

expectancy table for a [male][female] of that age, the decedent had a lifeexpectancy of an additional ____ years, as indicated in section 19-1-150.

In determining how long the decedent would have lived, had the decedentlived a normal life, you may consider his life expectancy at the time ofdeath. The life expectancy table received in evidence may be consideredin your determination of how long the decedent may have been expectedto live. Such tables are not binding on you, but may be consideredtogether with other evidence in the case bearing on the decedent‘s health,age, and physical condition, before [the injury and] death, in determiningthe probable length of the decedent‘s life. What weigh t you give to thistable is totally for you to determine. You may give it such weight andsuch consideration as you deem proper.



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SOUTH DAKOTAJ. Crisman PalmerRebecca L. Mann

Gunderson, Palmer, Nelson and Ashmore, LLPRapid City, South Dakota

(605) 342-1078



1. Medical and other related expenses. A parent is liable for medicalexpenses for his minor child. A parent has a claim for medical andnursing expenses incurred during minority. A parent also is entitled tothe reasonable value of necessary household service, nursing, andattendance, including services furnished gratuitously by familymembers or others, which has been required as a result of the injuryand the value of such services reasonably certain to be required in thefuture. Stormo v. Strong , 469 N.W.2d 816 (S.D. 1991).

2. Loss of earnings or wage-earning capacity. A parent has a claim forloss of minor‘s earning capacity during minority although parents mayrelinquish to a child the right to control and receiving the child‘searnings. SDCL §§ 25-5-7; 25-5-12. The child has a claim for loss ofearning capacity after majority.


1. Pain and Suffering. 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 lifeexperienced in the past and reasonably certain to be experienced in thefuture 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.2d299 (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 personalinjury action when the defendant is guilty of oppression, fraud, ormalice, actual or presumed, in order to make an example of or punishthe defendant. SDCL § 21-3-2. Prior to discovery or submission tothe fact finder on the issue of punitive damages, the court must find by



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clear and convincing evidence, following a hearing, that there is areasonable basis for the assertion that the defendant‘s conduct waswillful, wanton or malicious. SDCL § 21-1-4.1.


a. Damages (Basic Instruction). 50-00-10.

If you decide for the plaintiff[s] on the question of liability you must thenfix 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 bythe defendant[s] conduct, [taking into consideration the nature, extent, andduration of the injury], whether such loss or harm could have beenanticipated 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 theevidence is for you to determine. Your verdict must be based on evidenceand 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 ofInstruction 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 theenjoyment of life] experienced in the past [and reasonably certain to beexperienced in the future] as a result of the injury.

Comment:


d. Damages – Medical Expense – Past and Future. 50-10-80.



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The reasonable value of necessary medical care, treatment, and servicesreceived [and the reasonable value of the necessary expense of medicalcare, treatment and services reasonably certain to be received in thefuture.]

Comment:


e. Damages – Past Loss of Earnings. 50-10-90.

The earnings the plaintiff has lost, if any, from any source from the date ofthe 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 ofearning capacity you find that the plaintiff has suffered as a result of theinjury.

In determining the plaintiff‘s loss of earning capacity, you may considersuch factors as the nature and extent of the injury, the plaintiff‘s age, lifeexpectancy, 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 capacityreasonably certain to be suffered du ring the remainder of the plaintiff‘slife expectancy.]

Comment:

This instruction should be given when there is no history of pastearnings 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 thefuture 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 — PresentValue) when the evidence justifies its use.

h. Damages – Caretaking Expense – Past and Future. 50-10-140.

The reasonable value of necessary household service, nursing, andattendance, [including services furnished gratuitously by family membersor others,] which has been required as a result of the injury [and the valueof such services reasonably certain to be required in the future].

Comment:

This instruction is to be inserted between the two paragraphs of

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? Ifparent, does that end at the age of majority when it becomes the child’sclaim?

Parent owns the right to sue for child‘s medical expenses and can onlyrecover expenses incurred until the age of majority when it becomes child‘sclaim. Hoglund v. Dakota Fir Ins. Co. , 2007 S.D. 123, 742 N.W.2d 853; Doyenv. 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 wrongfuldeath 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 ofnecessary household service, nursing, and attendance provided to thedecedent.



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1. Pain and suffering. Pain and suffering and mental anguishconsciously 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 sufferedon the part of the decedent are not recoverable. Zoss v. Dakota TruckUnderwriters , 590 N.W.2d 911 (S.D. 1999).

3. Punitive damages. Punitive damages are not recoverable in wrongfuldeath actions. Bethel v. Janis , 597 F.Supp. 56 (D.S.D. 1984).However, an action for personal injury is maintainable independent ofa 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 injuryaction survives the death of the injured party and punitive damagesmay 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 deceasedtortfeasor. Olson-Roti v. Kilcoin , 2002 S.D. 131, 653 N.W.2d 254.


a. Damages – Wrongful Death of Minor Child. 50-30-20.

If you decide for the plaintiff[s] on the question of liability, you must thenfix the amount of money which will fairly compensate the[parents][brothers and sisters][next of kin], called the heir[s] of thedecedent, for [his][her][their] pecuniary loss as a result of the death of thedecedent.

Where a [minor child][unborn child, viable or not, from fertilization tolive birth] dies leaving [a] surviving parent[s], the law recognizes a

presumption that the parent[s] [has][have] sustained a pecuniary loss fromthe time of death of the decedent until the decedent would have reachedthe 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 mayconsider what benefits of pecuniary value including moneys, goods, andservices, the heir[s] might reasonably have expected to receive from the



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(6) The reasonable value or expense of necessary householdservice, nursing, and attendance provided to the decedent.

Whether any of these elements or damages has been proved by theevidence is for you to determine. Your verdict must be based on evidence

and not upon speculation, guesswork, or conjecture.



306

TENNESSEETimothy 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 capacitythat 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 aminor child gives rise to two causes of action, one on behalf of thechild for pain and suffering, his permanent injury, and impairment ofearning capacity after obtaining majority‖).

2. Medical Expenses. Medical expenses actually paid or incurred by theminor. 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 careand treatment reasonably certain to be required in the future.

II. Noneconomic Losses:

1. Pain and Suffering. Past physical pain and suffering, mental oremotional 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 sufferingencompasses the physical discomfort caused by an injury‖ and that―[m]ental or emotional pain and suffering encompasses anguish,distress, fear, humiliation, grie f, 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 ofcapacity for enjoyment of life and disfigurement. Riley v. Orr , 2010Tenn. App. LEXIS 386 (Ct. App. Tenn. 2010).

3. Loss of Enjoyment of Life. In Tennessee, ―[d]amages for loss ofenjoyment of life compensate the injured person for the limitations

placed on his or her ability to enjoy the pleasures and amenities oflife.‖ Id. at *23. Loss of enjoyment of life damages relate ―to dailylife activities that are common to most people.‖ Id. ; see also Dixon v.



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Cobb , 2007 Tenn. App. LEXIS 434 (Ct. App. Tenn. 2007 (stating that―[i]mpairment of physical function pr events a person from living lifein comfort by adding inconvenience or loss of physical ability‖). Theloss 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 experiencedin 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 aninjury. Mental or emotional pain and suffering encompassesanguish, distress, fear, humiliation, grief, shame or worry. Disfigurementis a specific type of permanent injury that impairs a plaintiff‘s appearance.Damages for loss of enjoyment of life compensate the injured person forthe 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 compensationfor [physical pain and suffering] [mental or emotional pain and suffering][disfigurement] [loss of capacity for the enjoyment of life], nor is theopinion 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) fordamages for injuries. The second claim is by ( minor‘s parent[s] ) formedical expenses incurred [and for loss of the earnings and services of theminor during minority].

If, in accordance with these instructions, you are to determine the amountof damages sustained by the minor, __________, and the parent[s]

_____________, you should fix an amount for each of the followingelements fo loss and warm provided it was or will be suffered by theminor or the parent[s] and legally resulted from the fault you haveassigned.

[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 belost 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 andsupplies reasonably required and actually incurred in thetreatment of the minor;

2. Monetary loss, if any, actually suffered or reasonablycertain 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 orreasonably certain to be suffered in the future by the

paren t[s] prior to the child‘s 18 th birthday as a result of theminor‘s inability to pursue an occupation or employment.



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

The party who paid for medical expenses owns the right to recover thoseexpenses. See T.P.I. CIVIL 14.26 and 14.27.



Section 20-5-106 of the Tennessee Code Annotated: A minor‘s right ofaction 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 deathdecedent was in the custody of the natural parents or parent and had not beenlegally surrendered or abandoned by them pursuant to any court order removingsuch 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 beinstituted by the personal representative of the deceased or by the survivingspouse in the surviving spouse‘s own name, or, if there is no survivin g spouse, bythe 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 tosubsection (a) until all child support arrearages, together with interest on the childsupport 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 physicalsuffering, 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 injuriesreceived.

The level of damages that may be recovered in a wrongful death action "isa matter dependent most largely upon the judgment of the jury and their sounddiscretion, after carefully, honestly and fairly considering all the various elementsthat 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 experienceand 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



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are claimed for the death of a child incapable of earning anything or renderingservice of any value, it has been held that the jury must make their estimate ofdamages from the facts proved, and it is not necessary that any witness shouldexpress 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 incommon with the generality of mankind." Id. Courts have stated that "substantialdamages may be awarded based solely on the other factors used to determine the

pecuniary value of life: life expectancy, age, health and personalhabits." 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 forthis illness, would have an earning capacity of at least minimum wage betweenthe 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 toaward damages, there are two classes of damages you may consider:

First, those damages sustained immediately by the injured party includingcompensation 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, medicineand drugs;

3. Reasonable funeral expenses; and

4. Loss of earning capacity during the period from injury todeath.

You may not speculate as to whether conscious pain and suffering actually

did exist between injury and death. If, however, you find that there wassuch pain and suffering prior to death, you must award damages for it.

The second class of damages that may be awarded is the present casevalue of the pecuniary value of the life of the deceased. In determiningthis 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 forearning money through skill in any art, trade, profession,occupation, or business;

5. The personal habits of the deceased as to sobriety andindustry; and

6. The reasonable value of the loss of consortium suffered bythe [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 ofother family members. Such intangible benefits include love, affection,attention, education, guidance, care, protection, training, companionshipand cooperation [and, in the case of a spouse, sexual relations] that the[wife] [and][children] would reasonably be certain to have received duringthe life of the deceased.

[In determining whether to award damages for loss of consortium for thedeath of a parent, you should consider the age of the [child] [children],closeness of relationship, dependence and any other factors that reflectupon 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. Youshould be mindful of the possibility that the earnings of an individual arenot always uniform over a period of time. You should consider not onlythe 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 lifeexpectancy and earning capacity, you should deduct the present cash valueof the deceased‘s living expenses had the deceased lived. These livingexpenses are those that under the decease‘s standard of living would have

been reasonably necessary to keep the deceased in such a condition ofhealth 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 expressio n ―present case value‖ in these instructionsconcerning damages for certain losses that may be awarded in this case.



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In determining the pecuniary value of the life of [( deceased )], you mustadjust the award to allow for the reasonable earning power of money andthe impact of inflation.

―Present cash value‖ means the sum of money needed now, which whenadded to what that sum may reasonably be expected to earn in the futurewhen invested, would equal the amount of damages at the time in thefuture when the earnings would have been received, living expensesincurred and the loss of consortium experienced. You should alsoconsider the impact of inflation, its impact on wages and its impact on

purchasing power in determining the present cash value of futuredamages.



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TEXASM. Scott Fisher, Jr.

Harman Claytor Corrigan & WellmanRichmond, Virginia

(804) 747-5200



1. Medical Expenses. ―[A]n unemancipated minor cannot recover forhospital and medical expenses incurred during his minority and forloss of earnings during his minority. It is the parent who is responsiblefor the medical expenses and who is entitled to recover for thoseexpenses 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 medicalexpenses that she may in reasonable probability incur after hereighteenth birthday.‖ Sax v. Votteler , 648 S.W.2d 661,667 (Tex.1983). Because a parent is primarily liable for a minor'smedical expenses incurred during minority and any cause of action formedical expenses incurred up to age of 18 belongs to such parent, the

parent has the burden to request submission of future medical expensesinto separate parts: future medical expenses for the minor between thetime of trial and time he or she reaches age of majority and the futuremedical 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 earningsof an unemancipated minor belong to his parents, an infant may notrecover for diminution of his earning capacity during the periodintervening 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 capacityafter 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 afterreaching 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 millionin damages for a minor‘s loss of earning capacity).

5. Loss of Child Services. As a general rule , a claim for loss of servicesof 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 ofservices if the father has abandoned the child. Id. Nonetheless, thefather may be a necessary party to the suit if there are no pleadingsaddressing his relationship with the child. Houston Oxygen Co. v.

Davis , 139 Tex. 1, 4, 161 S.W.2d 474, 475 (Tex. Com. App. 1942).

6. Loss of Society is NOT recoverable. ―We conclude that nocompelling social policy impels us to recognize a parent's right todamages for the loss of filial consortium.‖ Roberts v. Williamson , 111S.W.3d 113, 120 (Tex. 2003).


1. Physical Pain and Suffering. A minor may recover damages for painand suffering, mental anguish, both past and future, as well as anyother damages that are peculiar to her or may accrue after she reachesthe 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. – Beaumont2011) (upholding an award of $500,000 in exemplary damages to aminor in a personal inury case where the defendant had been convictedof aggravated sexual assault). However, exemplary damages may beawarded only if the minor proves by clear and convincing evidencethat the harm for which he seeks recovery of exemplary damagesresults from fraud, malice or gross negligence. See V.T.C.A., CivilPractice & Remedies Code § 41.003 (a) and (b). Moreover, exemplarydamages may only be awarded if the jury is unanimous, and the jurymust have been instructed as follows: ―You are instructed that, in orderfor you to find exemplary damages, your answer to the questionregarding the amount of such damages must be unanimous.‖ Id. at §41.003(d) and (e). Additionally, exemplary damages may not exceedan amount equal to the greater of: (1) two times the amount ofeconomic 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 caseswhere the conduct complained of is described as a felony within thestatutorily prescribed list of felonies (e.g., murder, aggravated assault,aggravated kidnapping, sexual assault) and the conduct was committedknowingly and intentionally. Id. at § 41.008(c).




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An injury to a minor proximately caused by negligence of another givesthe 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 expensesincurred 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 expensesincurred during the child‘s minority since they are responsible for the medicalexpenses. 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 andmedical expenses incurred during her minority. Id. Once a minor reaches the ageof 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 medicalexpenses beyond the age of majority, the parents have the burden to requestsubmission of future medical expenses into separate parts: future medicalexpenses for the minor between the time of trial and time he or she reaches age ofmajority and the future medical expenses for minor after he or she reaches suchage. 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 thissubchapter is for the exclusive benefit of the survivingspouse, children, and parents of the deceased.

(b) The surviving spouse, children, and parents of thedeceased may bring the action or one or more of thoseindividuals may bring the action for the benefit of all.

(c) If none of the individuals entitled to bring an actionhave begun the action within three calendar months afterthe death of the injured individual, his executor oradministrator shall bring and prosecute the action unlessrequested not to by all those individuals.



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While parents may not make a claim for loss of society in a personalinjury action for their minor child, parent can recover for mental anguish, loss ofcompanionship, and loss of society in a wrongful death action. See Gulf StatesUtilities Co. v. Reed , 659 S.W.2d 849, 853 (Tex. App. 14 Dist. 1983) (finding thatthe trial court properly instructed the jury on elements of damages consisting ofvalue of deceased son's earnings during minority, future contributions to parentsduring majority, parents' loss of society, and parents' mental anguish).

1. V.T.C.A., Civil Practice & Remedies Code §71.009 – ExemplaryDamages

When the death is caused by the wilful act or omission or grossnegligence of the defendant, exemplary as well as actual damages may

be recovered.

2. V.T.C.A., Civil Practice & Remedies Code §71.010 – Award andApportionment of Damages

(a) The jury may award damages in an amount proportionate to theinjury 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 recoverand who are alive at that time.

3. V.T.C.A., Civil Practice & Remedies Code §71.011 – Damages NotSubject to Debts

Damages recovered in an action under this subchapter are not subjectto the debts of the deceased.



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UTAHDeirdre McGlinchey

Michelle L. MillerCara E. Hall

McGlinchey Stafford PLLC

New Orleans, Louisiana(504) 586-1200

Damag es Recoverable in a Minor’s Personal Injury Action

A parent or guardian may bring an action for the injury of a minor childwhen the injury is caused by the wrongful act or neglect of another. Utah CodeAnn. §78A-2-227.

If a parent, stepparent, adoptive parent, or legal guardian is the allegeddefendant 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.I. Economic Damages

1. Damage for Loss of Time and Earnings. Injured plaintiffs areallowed to recover damages for loss of time and earnings. Allen v.U.S. , 1984, 588 F.Supp. 247, reversed 816 F.2d 1417, certiorari denied108 S.Ct. 694, 484 U.S. 1004, 98 L.Ed.2d 647.

2. Impairment of Future Earning Capacity. Injured plaintiffs areallowed 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 plaintiffsare allowed to recover for expenses incurred for drugs, nursing, andmedical 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 108S.Ct. 694, 484 U.S. 1004, 98 L.Ed.2d 647; C.S. v. Nielson , 767 P.2d504, 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 generaland special damages that naturally and necessarily result from the



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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 painand suffering is the diminished enjoyment of life, as well as thehumiliation and embarrassment resulting from permanent scars anddisability. Judd v. Rowley's Cherry Hill Orchards, Inc. , 611 P.2d1216, 1221 (Utah 1980).

2. Aggravation of Pre-existing Disease. Injured plaintiffs are allowedto recover damages for aggravation of a preexisting disease by theinjury. 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 exceptionalcases. Utah Code Ann. §78-11-7; Behrens v. Raleigh Hills Hosp., Inc. ,675 P.2d 1179 (Utah 1983). Punitive damages may be imposed if thedefendant‘s conduct is willful and malicious or manifests a knowingand reckless indifference and disregard toward the rights of others.

Johnson v. Rogers , 763 P.2d 771, 774 (Utah 1988).


a. Allocation of fault.

[Name of party] claims that more than one person‘s fault was a cause ofthe harm. If you decide that more than one person is at fault, you mustdecide each person's percentage of fault that caused the harm. Thisallocation 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 youattribute to [him]. If you decide that [name of plaintiff]'s percentage is50% 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.



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Ashley Valley Medical Center, 2003 UT App 260; Biswell v. Duncan , 742P.2d 80, (Utah App. 1987).

b. Economic and Non-economic Damages

I will now instruct you about damages. My instructions are given as aguide 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 theseinstructions.

If you decide that [name of defendant]'s fault caused [name of plaintiff]'sharm, you must decide how much money will fairly and adequatelycompensate [name of plaintiff] for that harm. There are two kinds ofdamages: economic and non-economic.

c. Proof of damagesTo 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 ofdefendant]'s fault.

Second, the amount of damages. The level of evidence required to provethe amount of damages is not as high as what is required to prove theoccurrence of damages. There must still be evidence, not just speculation,that gives a reasonable estimate of the amount of damages, but the lawdoes not require a mathematical certainty.

In other words, if [name plaintiff] has proved that [he] has been damagedand has established a reasonable estimate of those damages, [name ofdefendant] may not escape liability because of because of someuncertainty 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 ., 2004UT 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 andadequately compensate [name of plaintiff] for measurable losses of moneyor property caused by [name of defendant]'s fault.



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I will now instruct you on particular items of economic and non-economicdamages presented in this case.

Model Utah Jury Instructions, Second Edition, citing C.S. v. Nielson, 767P.2d 504 (Utah 1988); Judd v. Rowley‘s Cher ry Hill Orchards, Inc., 611

P.2d 1216 (Utah 1980).

g. Medical care and related expenses.

Economic damages include reasonable and necessary expenses formedical care and other related expenses incurred in the past and those thatwill probably be incurred in the future.

Model Utah Jury Instructions, Second Edition, citing Judd v. Rowley’sCherry 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 earningcapacity means the lost potential to earn income. In determining lostearning 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); UtahCode Section 78B-5-824.



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Who Owns the Right to Sue for Medical Expenses for a Minor Child? IfParent, 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 allegeddefendant in an action for the injury of a child, a guardian ad litem may beappointed for the injured child according to the procedures outlined in Section78A-2-227. Utah Code Ann. §78A-2-227.

Utah‘s Tolling Sta tutes provide that a person may not bring an actionwhile under the age of majority or mentally incompetent without a legal guardian.During the time the person is underage or incompetent, the statute of limitationsfor 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, hisheirs, or his personal representatives for the benefit of his heirs, may maintain anaction for damages against the person causing the death, or, if the person isemployed by another person who is responsible for his conduct, then against theother person. Utah Code Ann. § 78B-3-106.

I. Economic Damages

1. Funeral and Medical Expenses. A parent may recover for thewrongful death of a child such damages as funeral and medicalexpenses. 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 serviceshe might have rendered to household, and amount of money thedeceased child might have earned, if its projected income would haveexceeded 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 thewrongful death cause of action, the parent's recoverable damages mayinclude intangibles such as loss of the child's society, companionship,



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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 psychologicalrelationship between the deceased and those entitled to recover. Jonesv. Carvell, 641 P.2d 105 (Utah 1982).

2. Punitive Damages. Punitive damages may be imposed if thedefendant‘s conduct is willful and malicious or manifests a knowingand 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 inappropriate 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 inwrongful death cases consistent with general tort law. Utah CodeAnn. §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 andsuffering 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 thetime of death may not be considered a separate measure of damage,

but may demonstrate the nature of the psychological investment whichcontributes to the loss of love. Parents are not entitled to recover theamount 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 shewould have earned had the child not been born and had the parentinstead entered the work force. Jones v. Carvell , 641 P.2d 105 (Utah1982).



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4. Additional Factors to Consider: Damages in wrongful death are notlimited to the period of time during which the deceased would have

been a minor. Beaman v. Martha Washington Mining Co. , 23 Utah139, 63 P. 631, 632 (1901).


a. Wrongful death claim. Minor. Factors for deciding damages.

Damages include an amount that will compensate [name of plaintiff] forthe loss suffered due to [name of decedent]'s death. Calculate the amount

based on all circumstances existing at the time of [name of decedent]'sdeath 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. Thisamount should be reduced by the costs that [name of plaintiff]would likely have incurred to support [name of decedent] had thechild survived, until the child reached 18 years of age.

The loss of love, companionship, society, comfort, care, protectionand affection which [name of plaintiff] has sustained and willsustain 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 ofdecedent]'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.]



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Model Utah Jury Instructions, Second Edition, citing Utah Code Sections78B-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).



326

VERMONTMartha 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 andany pain and suffering, disability, disfigurement, mental anguish, and loss ofenjoyment of life both past and future. Damages are also recoverable for medicalexpenses, property damage, and lost earnings and earning capacity. See VermontCivil Jury Instruction Committee Plain English Jury Instructions 11.2 through11.5.

II. Model Jury Instructions

a. 11.2- Personal Injury Damages .

[Name of Plaintiff] is entitled to compensation for any bodily injury andany pain and suffering, disability, disfigurement, mental anguish, and lossof 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 findcaused by [describe event at issue]. There is no particular formula tocalculate this compensation. You should make sure that any amountawarded to [Name of Plaintiff] is fair to the parties in this case in light ofthe evidence you heard.

See Vermont Civil Jury Instruction Committee Plain English JuryInstructions 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 torepresent the child in legal actions. See also Vermont Rule of Civil Procedure17(b). Pursuant to 14 V.S.A. § 2643, settlements on behalf of minors must beapproved by the court if they exceed $1,500.00.

When a minor child is hurt by negligent act of a third party, two causes ofaction potentially spring into existence, one being a right of action by the childitself 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



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suit if they paid such expenses or became legally obligated to pay them. SeeVerchereau v. Jameson , 122 Vt. 189, 194 (Vt. 1961).


I. Damages

Vermont‘s wrongful death statute is codified in 14 V.S.A. §1492. 14V.S.A. §1492(b) lists recoverable damages in a wrongful death action. Suchdamages include damages for ―pecuniary injuries‖ resulting from the death to thenext of kin. In a case where the decedent is a minor child, the term ―pecuniaryinjuries‖ is not limited to purely economic losses and shall also include the loss oflove and companionship of the child and for destruction of the parent-childrelationship ―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 medicaland funeral expenses and lost support and services if applicable. Conscious painand 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 compensatingnext 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 wrongfulact of another person, the deceased person's next of kin can receivecompensation from the responsible person. That is the type of claim madein this case. [Name of Plaintiff] represents the next of kin. If you find for[Name of Plaintiff] in this case, you shall consider the followinginstructions 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 manyyears [the next of kin] are expected to live. [ If applicable: I instruct youthat the normal life expectancy for [Name of Decedent] is __. I instructyou that the normal life expectancy for [the next of kin] is __.]

c. 11.8-Medical and Funeral Expenses- Wrongful Death . [Nameof Plaintiff] should receive compensation for medical and funeralexpenses 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 ofDecedent]'s income that would have benefited [the next of kin], and othereconomic 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 aboutat trial. When consider ing [Name of Decedent]‘s life expectancy for thiscalculation, you should consider [Name of Decedent]‘s expected workinglife.

e. 11.10- Non-Economic Damages .

[ Modify as necessary due to Decedent's status as child or adult and next ofkin's status as spouse, child, or parent ] [Name of Plaintiff] should receivecompensation for [the loss of love and companionship;] [care, nurture, and

protection;] [the loss of the love and companionship of a child;] and [theloss of the parent-child relationship] that [the next of kin] would haveexpected 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 shouldreceive compensation for the grief and mental anguish they have sufferedto the present and probably will suffer in the future as a result of [Name ofDecedent‘s] death. There is no exact formula to calculate thiscompensation. You should make sure that any amount awarded to [Nameof Plaintiff] is fair to the parties in this case in light of the evidence youheard. 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 harmonyof 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 entitledto payment for [ list as applicable ]: medical expenses related to [Name ofDecedent]'s injury and death; lost wages for the period of [Name ofDecedent]'s injury; and conscious pain and suffering of [Name ofDecedent] during [his/her] injury.

See Vermont Civil Jury Instruction Committee Plain English JuryInstructions 11.6 through 11.11.



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VIRGINIALynne J. Blain

Dannel C. DuddyBrian R. Cannon

Harman, Claytor, Corrigan & Wellman

Richmond, Virginia(804) 747-5200



1. Property Damages – Property damages are recoverable.

2. Medical and Other Related Expenses – Medical and relatedexpenses incurred as a result of such wrongful or negligent act or

omission or breaches of warranty are recoverable. A plaintiff‘s laytestimony alone may lay foundation for medical bills if foundationsshowing the (i) bills are regular on their face and (ii) that they appearto relate to treatment described by the plaintiff. If defendantchallenges the authenticity of the bills, then independent authenticationand proof, usually in the form of expert testimony, is required. Ifdefendant challenges the reasonableness of the bills, then it is a juryissue where the defendant may present evidence against theirreasonableness. If the defendant challenges the medical necessity orcausal relationship with rebuttal testimony, then the bills needindependent 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 offuture medical expenses is appropriate. Virginia requires morespecificity than just testimony from a doctor of a permanent disabilityto award future medical expenses. Minnix v. Hall , 267 Va. 369, 595S.E.2d 271 (2004).

4. Collateral Source Rule – Virginia does not allow collateral sources ofrecovery, such as insurance, to credit against the amount of damagesowed 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 hasnever worked for employment may recover damages for future lostearnings or diminution of capacity to earn. However, statisticalaverages are not enough by themselves to meet the burden of an



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―intelligent and probable estimate‖ of the loss. Bulala v. Boyd , 239Va. 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 earningcapacity founded on assumptions from statistics without basis in fact―is not merely subject to refutation by cross -examination or bycounter- 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 provendirectly 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 indistin guishable. Sanfordv. Ware , 191, Va. 43, 60 S.E.2d 10 (1950). Since Virginia has notrecognized ―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 andDeformity – There needs to be direct evidence of the disfigurement ordeformity, but an inference may be made from that to the humiliationand embarrassment. Armistead v. James , 220 Va. 171, 257 S.E.2d 767(1979).

3. Inconvenience – This is often included in the instruction for pain andsuffering, 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 punitivedamages as those ―imposed as punishment upon a wrongdoer who hasacted wantonly, oppressively, or recklessly, or with such negligence asevinces a disregard for the rights of others, or criminal indifference tocivil obligations.‖ Barker v. Marcus, 201 Va. 905, 908, 114 S.E.2d617, 620 (1960).

In general, these damages are reserved to protect the public by servingas 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 tocompensate the plaintiff. Stevens v. Abbott, Proctor & Paine , 288 F.Supp. 836, 848 (E.D. Va. 1968).



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If you award punitive damages, you must state separately in your verdictthe amount you allow as compensatory damages and the amount youallow as punitive damages.

Instruction No. 9.010

Reasonable Proof

The burden is on the plaintiff to prove by the greater weight of theevidence each item of damage he claims and to prove that each item wascaused by the defendant‘s negligence. He is not required to prove theexact amount of his damages, but he must show sufficient facts andcircumstances to permit you to make a reasonable estimate of each item. Ifthe plaintiff fails to do so, then he cannot recover for that item.

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

Generally in Virginia, the minor owns the causes of action for pain andsuffering, permanent injury, and damages to earning capacity. The parent orguardian owns the cause of action for medical expenses incurred for the treatmentof 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 theage of majority with a few exceptions. First, Va. Code § 8.01-243(B) providesthat the statute of limitations on injury to property, including those on behalf ofminors, 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 orincompetency 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 testin utero failed to detect Tay-Sachs disease, the parents won emotional damages

because of the causal chain linking the negligent test administration to theopportunity to reject the pregnancy to the ensuing emotional distress followingthe birth. Naccash v. Burger , 223 Va. 406, 290 S.E.2d 825 (1982). The parentswere also entitled to recover costs for the care and treatment of their child, but notfuneral expenses. Id . at 414, 290 S.E.2d at 831.


Wrongful death actions are defined by statute in Virginia. Damagesrecoverable are those incurred by the statutory beneficiaries as a result of thedecedent‘s death. Although an administrator of the decedent‘s estate may bring a



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2. Compensation for reasonably expected loss of (i) income of thedecedent and (ii) services, protection, care and assistance provided

by the decedent;3. Expenses for the care, treatment and hospitalization of thedecedent incident to the injury resulting in death;

4. Reasonable funeral expenses; and5. Punitive damages may be recovered for willful or wantonconduct, or such recklessness as evinces a conscious disregard forthe safety of others.…

The jury has wide latitude in determining awards for elements one and twoabove. Matthews v. Hicks , 197 Va. 112, 118, 87 S.E.2d 629, 633 (1955).

The statute above provides for punitive damages in wrongful deathactions. 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).


Instruction No. 9.100Damages: Death by Wrongful Act

If you find your verdict for the plaintiff, then in determining the damagesto which he is entitled, you shall include, but are not limited to, any of thefollowing which you believe by the greater weight of the evidence werecaused by the negligence of the defendant as damages suffered by the

beneficiaries:

(1) any sorrow, mental anguish, and loss of solace suffered bythe beneficiaries. Solace may include society,companionship, comfort, guidance, kindly offices, andadvice of the decedent;

(2) any reasonably expected loss in income of the decedentsuffered 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.



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If you award damages under paragraphs (1), (2), and (3) above, you maydistribute these damages among [between] (name of spouse, children, andchildren of any deceased child of decedent) or (names of survivingstatutory beneficiaries).

If you award damages under (4) and (5) above, you shall specifically statethe amount of damages for each.

Governing Statutes: Va. Code Ann. §§ 8.01-52 to 8.01-54 .

Instruction No. 9.105Punitive Damages: Death by Wrongful Act

If you find your verdict for the plaintiff, and if you believe by the greaterweight 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 asimilar way.

If you award punitive damages, you must state separately in your verdictthe amount you allow as punitive damages, and you may distribute thesedamages among [between] (names of spouse, children, and children of anydeceased child of decedent) or (names of surviving statutory

beneficiaries).

Governing Statutes: Va. Code Ann. § 8.01-52 .



336

WASHINGTONKate StimelingJames Rapore

Schiff Hardin LLPSan Francisco, California

(415) 901-8700



1. Medical Expenses. Plaintiffs may recover medical expenses incurredas a r esult of the defendant‘s negligence. Medical expenses includethe reasonable value of necessary medical care, treatment, and servicesreceived, for the past, present, and future. 6 W ASH . PRAC ., WASH . PATTERN JURY I NSTR . CIV. WPI 30.07.01-.02 (5th ed.).

2. Property Damages . Damages to real and personal property arerecoverable. Thompson v. King Feed & Nutrition Serv., Inc. , 105 P.3d378, 383 (Wash. 2005).

3. Loss of Wages or Wage-Earning Capacity . Loss of wages andwage-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 recoverfor pain and suffering and emotional distress as a result of his or herown physical injuries. Fahndrich v. Williams , 194 P.3d 1005, 1007(2008).

2. Disfigurement . Plaintiffs may recover for disfigurement underWashington Law. W ASH . R EV. CODE A NN . § 4.56.250 (West 2011)(defining noneconomic damages to include disfigurement) 4; 6 WASH . PATTERN JURY I NSTR . CIV. WPI 30.05 (5th ed.).

3. Disability. Plaintiffs may recover for disability, which includes notonly the inability to work but also impairment of the ability to lead anormal life. 6 WASH . PRAC ., WASH . PATTERN JURY I NSTR . CIV. WPI30.05 (5th ed.).

4. Loss and Loss of Enjoyment of Life . Plaintiffs may recover for theloss of enjoyment of life. Id.

5. Punitive Damages . Punitive damages are not recoverable inWashington. The Washington Supreme Court has held that punitive

4 A portion of Section 4.56.250, unrelated to whether plaintiffs may recover for disfigurement, washeld unconstitutional in v. Fibreboard Corp. , 771 P.2d 711 (Wash. 1989).



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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 recoverfor emotional distress stemming from witnessing an injury to another,the plaintiff must witness ―the victim's inj uries at the scene of an

accident shortly after it occurs and before there is a material change inthe attendant circumstances.‖ Colbert v. Moomba Sports, Inc. , 176P.3d 497, 503 (Wash. 2008). Additionally, the plaintiff must―demonstrate objective symptoms of emotional injury.‖ Id.


Measure of Economic and Noneconomic Damages — PersonalInjury — No Contributory Negligence WPI 30.01.01 (5th ed.).

―It is the duty of the court to instruct you as to the measure ofdamages. [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 theamount of money that will reasonably and fairly compensate the

plaintiff for such damages as you find were proximately caused by thenegligence of the defendant.

[If you find for the plaintiff] [your verdict must include the followingundisputed items:

(Here insert undisputed past economic damage amounts)

In addition] you should consider the following past economic damageselements:

(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 economicdamages 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 damageselements:

(Here insert appropriate elements from among phrases 30.04 through30.06)



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The burden of proving damages rests upon the plaintiff. It is for you todetermine, based upon the evidence, whether any particular elementhas 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 tomeasure noneconomic damages. With reference to these matters youmust be governed by your own judgment, by the evidence in the case,and by these instructions.‖

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

Both parents and children may sue for medical expenses. Under RevisedCode of Washington Section 4.24.010, parents who have regularly contributed tothe suppor t of their minor child may ―maintain or join as a party an action as

plaintiff for the injury or death of the child‖ WASH . R EV. CODE A NN . § 4.24.010(West 2012). Because this statute only creates one cause of action, a jury mayaward damages to each parent separately if they are not married. Id. As part ofthis 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 maynot 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 MinorSurvivor Action

I. Wrongful Death of a Minor (who may bring suit) The personal representative of a decedent may bring a wrongful death

claim on behalf of relatives of the decedent. W ASH . R EV. CODE 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 arelative.‖ Parrish v. Jones , 722 P.2d 878, 881 (Wash. Ct. App.1986). Pecuniaryloss includes not only the monetary contributions that the beneficiary would have

received from the decedent had the decedent lived but also includes losses such asthe loss of the decedent's support, services, love, affection, care, companionship,society, and consortium. Id. ; 16 W ASH . PRAC ., TORT LAW A ND PRACTICE § 6.5(3d ed.).

However, recovery is not permitted for ―the mental anguish a nd grief andsorrow of the survivors.‖ 16 W ASH . PRAC ., TORT LAW A ND PRACTICE § 6.5 (3d



339

ed.); Pearson v. Picht , 52 P.2d 314, 316 (Wash. 1935); Pancratz v. Turon , 473P.2d 409, 413 n. 5 (1970) (Wash. Ct. App.1970) (approving the followingwrongful death jur y instruction: ―[i]n determining pecuniary loss you are not toconsider grief or sorrow of the survivors.‖). Additionally, because wrongful deathrecovery is for the ―losses of the beneficiary‖, recovery for the decedent‘s pain

and suffering is not recoverable. 16 W ASH . PRAC ., TORT LAW A ND PRACTICE §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 underRevised Code of Washington Section 4.24.010. Parents bringing a Section4.24.010 action can recover for the mental anguish they incurred as a result of thedeath 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. Theymay also recover for the following noneconomic damages: ―loss of love andcompanionship of the child‖ and ―injury to or destruction of the parent -childrelationship.‖ Id.

III. Survivor Action Damages

A survivor action allows the personal representative of a decedent‘s estateto bring an action for injuries suffered by the decedent. W ASH . R EV. CODE A NN .§§ RCWA 4.20.046, 4.20.060 (West 2011). The general survivor statute RCWA4.20.046. preserves all causes of action that the decedent could have brought hadhe 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 thedecedent 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 availablefor damages available in ―a garden variety tort action.‖ Chapple v. Ganger , 851F. Supp. 1481, 1486 (E.D. Wash. 1994). These damages include: medical andhospital expenses, funeral expenses, property damage, pain and suffering ifmeasurable time ensued between the injury and death, and fear experienced by thedecedent prior to his or her death. Id.

IV. Model Jury Instructions:

a. Measure of Damages — Wrongful Death — Action for Benefit ofSpouse / 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 registereddomestic partner). [By instructing you on damages, the court does notmean to suggest for which party your verdict should be rendered.

If your verdict is for the plaintiff, then] you must determine the amount ofmoney that will reasonably and fairly compensate (name of spouse / state



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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 / stateregistered 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) wouldhave contributed to (name of spouse / state registered domestic partner) inthe 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. [―Maritalconsortium‖ means the fellowship o f husband and wife and the right ofone spouse to the company, cooperation, and aid of the other in thematrimonial relationship. It includes emotional support, love, affection,care, services, companionship, including sexual companionship, as well asassistance from one spouse to the other.] [―Domestic partner consortium‖means the fellowship of state registered domestic partners and the right ofone domestic partner to the company, cooperation, and aid of the other inthe domestic partnership. It includes emotional support, love, affection,care, services, companionship, including sexual companionship, as well asassistance from one domestic partner to the other.]

In making your determinations, you should take into account (name ofdecedents) age, health, life expectancy, occupation, and habits [ofindustry, 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. Indetermining the amount that (name of decedent) reasonably would have

been expected to contribute in the future to (name of spouse / stateregistered domestic partner), you should also take into account the amount



341

you find (name of decedent) customarily contributed to (name of spouse /state registered domestic partner).

The burden of proving damages rests upon the plaintiff. It is for you todetermine, 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 tomeasure noneconomic damages. With reference to these matters you must

be governed by your own judgment, by the evidence in the case, and bythese instructions.

b. Wrongful Death Actions Brought by Parent for Death of ChildWPI 31.06.01 (5th ed.)

―It is the duty of the court to instruct yo u as to the measure of damages [on plaintiffs' claim for personal losses suffered by (names of parents)]. [Byinstructing 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 ofmoney that will reasonably and fairly compensate (names of parents) forsuch damages as you find were proximately caused by the negligence ofthe 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, andservices 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



342

(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-childrelationship 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 ofchild's) age, health, life expectancy, character, and habits, as well as (nameof parents') station in life.



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 tomeasure noneconomic damages. With reference to these matters you must

be governed by your own judgment, by the evidence in the case, and bythese instructions.‖

c. Measure of Damages — Survival Action — Statutory BeneficiariesWPI 31.01.01 (5th ed.)

―It is the duty of the court to instruct you as to the measure of damages onthe plaintiff's claim for personal losses suffered by (name of decedent).[By instructing you on damages, the court does not mean to suggest forwhich party your verdict should be rendered.

If your verdict is for the plaintiff, then] you must determine the amount ofmoney that will reasonably and fairly compensate (name of decedent's)estate for such damages as you find were proximately caused by thenegligence 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 andnecessarily incurred.

[(b)] [2.] The net accumulations lost to [his] [her] estate. In determiningthe 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 ofdecedent's) earning capacity, including [his] [her] actual earnings prior todeath and the earnings that reasonably would have been expected to beearned by [him] [her] in the future, including any pension benefits.Further, you should take into account the amount you find that (name ofdecedent) reasonably would have consumed as personal expenses [orreasonably would have contributed to (names of beneficiaries) during[his] [her] lifetime] and deduct this from [his] [her] expected futureearnings to determine the net accumulations.

[2. Noneconomic damages:]

[3. The pain, suffering, anxiety, emotional distress, humiliation, and fearexperienced by [him] [her] prior to [his] [her] death as a result of(describe event).]



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 tomeasure noneconomic damages. With reference to these matters you must

be governed by your own judgment, by the evidence in the case, and bythese instructions.‖



344

WASHINGTON, D.C.James H. Rotondo

Michael P. PohoryloDay Pitney LLP

Hartford, Connecticut

(860) 275-0100



1. Medical Expenses : Plaintiff‘s damages for past medical expenses arerecoverable and should include the value of all reasonably necessarymedical 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 ofColumbia . See also Gebremdhin v. Avis-Rent-A-Car System, Inc. , 689A.2d 1202, 1202 (D.C. 1997).

II. Noneconomic Damages: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 negligen ce, or if the plaintiff is ―physically endangered‖ as a result of the defendant‘snegligence. District of Columbia v. McNeill , 613 A.2d 940, 942-43(D.C. 1992).

2. Disfigurement : Disfigurement and embarrassment resulting fromdisfigurement 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 someinstances, direct proof is not required where the law can infer pain and



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[he] [she] is reasonably certain to suffer in the future. Indetermining this amount, you are allowed to consider severalfactors:

(1) [the plaintiff's] age, sex, health, physical and/or mentalability and earning capacity before the injury;

(2) [the plaintiff's] likely future earnings for the remainingworking life, if the injury had not occurred, reduced to

present value;

(3) [the plaintiff's] decreased earning capacity as a result ofthe injury;

(4) [the plaintiff's] likely future earnings for the remainingworking life, taking into account the injury and how long itmay 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. Youmay award damages for emotional distress if:

(1) the defendant's negligence caused a physical injury tothe plaintiff, or

(2) the plaintiff was in the zone of danger and thedefendant'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 emotionaldistress is serious and verifiable.

e. Parent’s Past and Future Damages, Section 13.11 .Standardized Civil Jury Instructions for the District ofColumbia :

If a minor child was injured through the defendant's negligenceand the child is entitled to receive damages from the defendant,then the child's parents also are entitled to receive damages for



348

their past and future expenses in connection with the child'sinjuries until the child reaches legal age.

Thus, the child's parents are entitled to receive damages to covertheir hospital and other medical expenses, as well as otherincidental expenses involved in caring for the child's injuries.

Who ―owns‖ the right to sue for medical expenses? Parent or child? Ifparent, 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 medicalexpenses; 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 thataddresses this issue. As noted in the model jury instructions, however, parentsmay receive damages for their past and future expenses in connection with theirchild‘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 maystill 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 ofaction for medical expenses and loss of an injured child‘s earnings. See NationalCity Development Co. v. McFerran , 55 A.2d 342, 343 (D.C. 1947) (―‗[A] parentwho seeks as guardian ad litem of his minor child to recover for loss of time orearnings of the minor, or for medical services incurred on behalf of the latter, isvariously held to have waived or relinquished to the minor his rights in thisrespect, or to have emancipated the minor, or to have estopped himself fromthereafter recovering for these items in a suit in his own name. In the numerouscases so holding, recovery on these accounts has generally been permitted in the

suit brought on behalf of the minor. ‘‖).Damages Recoverable in a Minor Wrongful Death Claim

The purpose of the District of Columbia‘s Wrongful Death Act is to―provide a remedy whereby close relatives of the deceased, who might naturallyhave expected maintenance or assistance from the deceased had he lived, mayrecover compensation from the wrongdoer commensurate with the losssustained.‖ Cole, Raywid & Braverman v. Quadrangle Development Corp. , 444A.2d 969, 971 n.7 (D.C. 1982).


1. Loss of Financial Support : Loss of financial support isrecoverable. 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. 2 002) (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



349

earnings and contributions to support the parents, the award isreduced by the costs the decedent‘s parents would have expendedin raising the decedent to eighteen years of age. See StandardizedCivil 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, inevent defendant was liable, the plaintiff was ―entitled to recoverthe 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, andsuch further sum as a parent might properly have received from thedeceased 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‘sWrongful Death Act provides that a plaintiff may recover formedical and burial expenses. See D.C. Code § 16-2701


1. Punitive Damages : Punitive damages are recoverable in someinstances. 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 ofclear and convincing evidence that police officers shot decedent withan evil motive or actual malice); Grossman v. United States , 1990 U.S.Dist. LEXIS 20932, at * 42 (D.D.C. Nov. 2, 1990) (plaintiff‘sdecedent was denied punitive damages under the District of ColumbiaWrongful Death Act because punitive damages are not available underthe Federal Tort Claims Act as decedent committed suicide on thegrounds of defendant‘s federal veterans administration medical centerdue to the staff's negligence in failing to properly diagnose, monitorand treat plaintiff‘s decedent for depression).

2. Pain and Suffering : Pain and suffering experienced by the decedentare recoverable. See Doe v. Binker , 492 A.2d 857, 861 (D.C. 1985).

3. Loss of Parent-Child Consortium : Loss of parent-child consortium isnot 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 ofservices of a minor child are not recoverable in any cause of action).

4. Mental Suffering, Grief and Anguish : Mental suffering, grief andanguish are not recoverable under the Wrongful Death Act. SeeSaunders v. Air Florida, Inc. , 558 F. Supp. 1233, 1235 (D.D.C. 1983)(applying D.C. law).



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Section 14.05 . Standardized Civil Jury Instructions for the District of Columbia :

The amount to be awarded under the Wrongful Death Act is thefinancial loss suffered by the . . . next of kin of [the deceased] whoare the beneficiaries under this Act. . . . The next of kin of thedeceased are [names].

The Wrongful Death Act does not permit you to, and you must not,award the beneficiaries any amount for the sorrow, mental distressor grief, or for the loss of love and affection that they may havesuffered 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 willreasonably and adequately compensate the beneficiaries for thedeath of [the deceased], you should first consider the financial losseach beneficiary has suffered. Consider the financial support [thedeceased] furnished or could have been expected to provide toeach beneficiary. Consider, also, any gifts and other contributionswhich [the deceased] could have reasonably been expected to

provide to each beneficiary had [the deceased] not died. Indetermining the amount each of the beneficiaries could have beenexpected to receive, you may consider the earnings and earningcapacity of [the deceased] and the probable joint life expectancy of

[the deceased] with each of the beneficiaries. Joint life expectancymeans the time during which [the deceased] and each of the beneficiaries would both have been alive. You may also considerthe age, health, occupation, station of life of the parties and anyother fact which may guide you.

You should also set a dollar amount on the reasonable value ofany 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 alsoconsider the possibility that [he] [she] might have madecontributions toward the support of [his] [her] parents and next ofkin even after [he] [she] turned 18 years old.



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After you have decided the amounts of [the decedent's] likelyfuture earnings and contributions to support the parents, you mustthen subtract the costs that [his] [her] parents [or guardians] wouldhave expended in raising [him] [her] to age 18.

With regard to all of these losses, you must consider the effect ofinflation 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 mustdetermine a lump sum payment which could compensate each

beneficiary for his or her future financial losses suffered as a resultof [the deceased]'s death.

Here is how you make that calculation. For each beneficiary, youmust figure the amount, which if invested at a particular rate ofinterest today over the number of years [the decedent] would have

been expected to live, would return an amount equal to the netfinancial loss to that beneficiary.

To any lump sum payment for a beneficiary, you should also addthe actual amounts which that beneficiary paid towards theexpenses of the decedent's last illness. These expenses wouldinclude any medical, nursing and hospital bills and funeralexpenses, and any other expenses of [the deceased].

Any award you make under the Wrongful Death Act should beapportioned among each of the beneficiaries; that is, your verdictshould state the amount each beneficiary is to receive.



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WEST VIRGINIA Carol P. Smith

Frost Brown Todd LLCCharleston, West Virginia

304-345-0111


Personal injury to a minor child gives rise to two causes of action: 1) anaction on behalf of the child for pain and suffering, permanent injury, andimpairment of earning capacity after majority; and 2) an action by the parent forconsequential damages including the loss of services and earnings during minorityand 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 andnecessary medical bills, lost wages, pain and suffering, mentalanguish, 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 otherthings: 1) residuals or future effects of an injury which have reducedthe capacity of an individual to function as a whole man; 2) future painand suffering; 3) loss or impairment of earning capacity; and, 4) futuremedical e xpenses.‖ Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618(1974). A child who has never been gainfully employed may recoverdamages 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 ofa minor child the opportunity to recover economic losses arising out ofa child's injuries, West Virginia courts have not yet addressed whethera parent can recover non-economic consortium losses for a child'sinjuries. See, Losh v. Teton Transp., Inc. , Slip Opinion, 2010 WL5343216 (S.D.W.Va. 2010).

4. Punitive Damages . In actions of tort, where gross fraud, malice,oppression, or wanton, willful, or reckless conduct or criminalindifference to ci vil obligations affecting the rights of others appear…,the jury may assess exemplary, punitive, or vindictive damages; theseterms being synonymous. Crawford v. Snyder , --S.E.2d---, 2011 WL



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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 liquidateddamages is mandated by statute. W.Va. Code 56-6-31. Specialdamages 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 juryinstructions.

Who "owns" the right to sue for medical expenses? Parent or child? Ifparent, 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 medicalexpenses incurred as a result of a minor's personal injuries belongs to both theminor 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 haverecovered had he or she survived the inquiry and brought the action, in addition tothe 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 maynot 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 thedecedent;(B) compensation for reasonably expected loss of (i) income of thedecedent, and (ii) services, protection, care and assistance provided bythe 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 deathwhere evidence of conscious pain and suffering of the decedent priorto death is shown. W.Va. Code 55-7-8; McDavid v. U.S. , 213W.Va.592, 584 S.E.2d 226 (2003).

2. Punitive Damages. In the appropriate case, punitive damages arerecoverable 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 personalrepresentative of a viable unborn child for the wrongful death of such

child caused by injuries sustained by it while in the womb of itsmother resulting from the negligence of the defendant and, uponsufficient proof, such damages as may be recoverable under the statutemay 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 juryinstructions.



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WISCONSINJohn S. Monical

Lawrence, Kamin, Saunders & Uhlenhop, LCCChicago, Illinois(312) 372-1947

Damages Recoverable in a Minor’s Personal Injury

I . Economic Damages:

1. Medical Expenses . Parent may recover hospital, medical, and dentalexpenses incurred or that will continue to be incurred in the future forthe care and treatment of the minor. WIS JI-CIVIL 1840.

2. Child’s Lost Services and Earnings. The parent may recover for theinjured minor‘s earnings and the reasonable value of the serviceswhich 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 thefuture to a minor because of the injuries sustained is recoverable. WISJI-CIVIL 1845.

4. Loss of past and future earning capacity . If the minor has incurredlost future earnings capacity, including lost earnings caused by delayin graduating from school, the jury can award reasonablecompensation 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 childsuffered 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. Pain and suffering, suffered in the past andreasonably certain to be suffered in the future as a result of the injuryare 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, theeffect produced by the injury in the past and expected effect in thefuture, a nd the plaintiff‘s age, prior mental and physical conditions,



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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). Indetermining an award for pain and suffering, a jury may consider theimpairment 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 emotionaldistress as a result of the incident and the incident was a substantialfactor in producing the emotional distress, damages for severeemotional distress may be recoverable. WIS JI-CIVIL 1770.

4. Punitive Damages . Punitive damages may be recoverable in anappropriate 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 maliciousintention of the defendant or the recklessness of the defendant‘sconduct, the potential and actual damages of the act, and thedefendant‘s ability to pay such damages. WIS JI -CIVIL 1707.1; seeStrenke v. Hogner , 694 N.W.2d 296 (Wis. 2005); Sharp v. Case Corp. ,595 N.W.2d 380 (Wis. 1999).


a. Injury To Minor Child: Parents' Damages For MedicalExpenses: 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 careand treatment of (his) (her) minor (son) (daughter).

Under the law, parents are liable for the reasonable expenses necessarilyincurred in the care and treatment of their minor children.

You will carefully consider the credible evidence, and reasonableinferences therefrom, bearing on this inquiry and in answer name suchsum 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 thatsuch expenses will continue to be incurred in the future by (plaintiff), youshould allow, and include in your award, an amount which will fairly andreasonably compensate (plaintiff) for such medical, hospital, and dentalexpenses 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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reasonably capable of earning and for the loss of the reasonable value ofthe services to which (parents) (parent) were entitled during the period of(minor child)'s disability, to date, resulting from injuries received in (theaccident).

If you find that (minor child)'s disability will continue in the future as anatural result of the injuries sustained in (this accident), you should allow(parents) (parent), and include in your award, an amount which will fairlyand reasonably compensate (them) (him) (her) for any loss of income(minor child) would have been reasonably capable of earning and for thereasonable value of the services which (minor child) would have renderedto (parents) (parent), except for the disability, until (minor child)'s 18th

birthday.

While the plaintiff has the burden of establishing loss of future earningcapacity, 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 earningcapacity) requires that you consider factors which, by their very nature, donot admit of any precise or fixed rule. You therefore, are not required indetermining the loss of future earning capacity to base your answer onevidence which is exact or precise but rather upon evidence which, underall of the circumstances of the case, reasonably supports yourdetermination of damages.

d. Injury To Minor Child: Parent's Loss Of Society AndCompanionship 1837 WIS JI-CIVIL

Question __ asks you to determine (the parent)'s loss of society andcompanionship 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 thechild not been injured. It does not include the loss of monetary supportfrom the child or the grief or mental suffering caused by the child's injury.

In determining (parent)'s loss of society and companionship, you shouldconsider the age of the (child) and the age of the parent; the pastrelationship 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, andcharacter of the child and the parent.

The amount inserted by you should reasonably compensate the parent forany 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 thefuture 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 includein 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 Expenses1758 WIS JI-CIVIL

(Question ______ ) (Subdivision __ of question _____ ) asks what sum ofmoney will fairly and reasonably compensate (plaintiff) for future medicaland other health care related expenses.

If you are satisfied that (plaintiff) will require health care or treatment inthe future for injuries sustained as a result of the accident, you will insertas your answer to this question the sum of money you find will reasonablyand 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 moneywill fairly and reasonably compensate (plaintiff) for future loss of earningcapacity.

If you are satisfied that (plaintiff) has suffered a loss of future earningcapacity as a result of the injuries sustained in the accident, your answer tothis question will be the difference between what (plaintiff) willreasonably be able to earn in the future in view of the injuries sustainedand what (he) (she) would have been able to earn had (he) (she) not beeninjured.

While the plaintiff has the burden of establishing loss of future earningcapacity, the evidence relating to this item need not be as exact or preciseas 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 earningcapacity) requires that you consider factors which, by their very nature, donot admit of any precise or fixed rule. You, therefore, are not required indetermining the loss of future earning capacity to base your answer onevidence which is exact or precise but rather upon evidence which, underall of the circumstances of the case, reasonably supports yourdetermination of damages.



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g. Personal Injuries: Past And Future Pain, Suffering, And Disability(Disfigurement) 1768 WIS JI-CIVIL

(Question __) (Subdivision __ of question __ ) asks what sum of moneywill fairly and reasonably compensate (plaintiff) for any pain, suffering,(and) disability, (and disfigurement) (he) (she) sustained as a result of theaccident.

Your answer to this question should be the amount of money that willfairly and reasonably compensate (plaintiff) for the pain, suffering, (and)disability, (and disfigurement) (he) (she) has suffered to date and isreasonably 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) hassuffered in the past and is reasonably certain to suffer in the future.

You should also consider to what extent (his) (her) injuries have impairedand 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 reasonablycertain to produce in the future bearing in mind (plaintiff)'s age, priormental 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 (inaddition 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 andthat the (accident) (incident) was a substantial factor in producing it, youshould include in your award a fair and reasonable allowance for thesevere emotional distress. If you are not satisfied, make no allowance forthe severe emotional distress and confine your award to fair andreasonable 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 inan intentional disregard of the rights of the plaintiff. A person's acts are



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malicious when they are the result of hatred, ill will, desire for revenge, orinflicted under circumstances where insult or injury is intended. A personacts in an intentional disregard of the rights of the plaintiff if the personacts with the purpose to disregard the plaintiff's rights, or is aware that hisor her acts are substantially certain to result in the plaintiff's rights being

disregarded. Before you can find an intentional disregard of the rights ofthe plaintiff, you must be satisfied that the defendant's act or course ofconduct was:

(1) deliberate;

(2) an actual disregard of the plaintiff's right to safety, health, orlife, a property right, or some other right; and

(3) sufficiently aggravated to warrant punishment by punitivedamages.

A defendant's conduct giving rise to punitive damages need not bedirected at the plaintiff seeking punitive damages. There is no requirementthat (defendant) intended to cause harm or injury to (plaintiff). The

purpose of punitive damages is to punish a wrongdoer or deter thewrongdoer and others from engaging in similar conduct in the future.Punitive damages are not awarded to compensate the plaintiff for any losshe or she has sustained. A plaintiff is not entitled to punitive damages as amatter 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 inan intentional disregard of the rights of the plaintiff. A person's acts aremalicious when they are the result of hatred, ill will, desire for revenge, orinflicted under circumstances where insult or injury is intended. A personacts in an intentional disregard of the rights of the plaintiff if the personacts with the purpose to disregard the plaintiff's rights, or is aware that hisor her acts are substantially certain to result in the plaintiff's rights being

disregarded. Before you can find an intentional disregard of the rights ofthe plaintiff, you must be satisfied that the defendant's act or course ofconduct was:

(1) deliberate;



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(2) an actual disregard of the plaintiff's right to safety, health, orlife, a property right, or some other right; and

(3) sufficiently aggravated to warrant punishment by punitivedamages.

A defendant's conduct giving rise to punitive damages need not bedirected at the plaintiff seeking punitive damages. There is no requirementthat the defendant intended to cause harm or injury to the plaintiff.

The purpose of punitive damages is to punish a wrongdoer or deter thewrongdoer and others from engaging in similar conduct in the future.Punitive damages are not awarded to compensate the plaintiff for any losshe or she has sustained. A plaintiff is not entitled to punitive damages as amatter of right. Even if you find that the defendant acted maliciously or inan intentional disregard of the plaintiffs rights, you do not have to award

punitive damages. Punitive damages may be awarded or withheld at yourdiscretion. You may not, however, award punitive damages unless youhave awarded compensatory damages. If you determine that punitivedamages should be awarded, you may then award such sum as willaccomplish 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 ofits excessiveness;

5. the employees involved in causing or concealing themisconduct;

6. the duration of both the improper behavior and its concealment;

7. the financial condition of the manufacturer and the probableeffect on the manufacturer of a particular judgment; and

8. the total punishment the manufacturer will probably receivefrom other sources.

SPECIAL VERDICT



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If you answered "yes" to question _, answer this question:

Did (defendant) act maliciously toward (plaintiff) or in anintentional 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) 1750.2WIS JI-CIVIL

Question __ asks what sum of money will fairly and reasonablycompensate (plaintiff) for any personal injuries (he) (she) sustained as aresult of the accident. Your answer to this question should be the amountof money that will fairly and reasonably compensate (plaintiff) for the

personal injuries (he) (she) has suffered to date and is reasonably certain tosuffer 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 andhumiliation which (plaintiff) has suffered in the past and is reasonablycertain to suffer in the future. You should consider also to what extent(his) (her) injuries have impaired and will impair (his) (her) ability toenjoy the normal activities, pleasures, and benefits of life. Consider thenature of (plaintiff)'s injuries, the effect produced by (plaintiff)'s injuries inthe past, and the effect the injuries are reasonably certain to produce in thefuture, 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 capacitysuffered by (plaintiff). If you are satisfied that (plaintiff) has suffered aloss of future earning capacity as a result of the injuries sustained in theaccident, your answer to this question should include the difference

between what (plaintiff) will reasonably be able to earn in the future inview of the injuries sustained and what (he) (she) would have been able toearn 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 inthe future for injuries sustained as a result of the accident, include in youranswer to this question the sum of money that will reasonably andnecessarily be expended in the future for that care and treatment.



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Wisconsin recognizes two separate causes of action when a minor isinjured – 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 theinvasion of the parents‘ interests, including (1) past, present, and future medicalexpenses, including home and personal nursing care and services; (2) loss ofchild‘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 wascapable 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.2d297 (Wis. Ct. App. 1984); WIS JI-CIVIL 1707.1. Under the law, parents areliable 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 m edicaland hospital expenses in the minor‘s personal injury suit, the parent also can suefor the costs of the minor child‘s treatment of the injuries as the result of theaccident during the period of the child‘s minority, up to but not beyond the timethe 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 bringan action for wrongful death. Wis. Stat. § 895.04(4). However, Section 895.03 ofthe Wisconsin Statutes limits the bringing of actions to cases in which, if deathhad 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 thefetus‘ parents thus may bring a wrongful death action against automobile driverwhose negligence cause a viable fetus to be stillborn).


1. Pecuniary Losses. Pecuniary loss, recoverable in wrongful deathactions 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).



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3. Lost Wages and Services . Parents can claim the loss of wages andservices they would have received from the child during the child ‘sminority had the child lived. This loss is measured by the value of thewrongfully killed minor child‘s probable wages and services to thetime 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 haveturned 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, anaward 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 ofsociety and companionship is not a measure of damages; it is a limiton recovery). Loss of society and companionship includes the love,affection, care, protection, and guidance WIS JI-CIVIL 1895; SeeCameron v. Union Auto Ins. Co. , 246 N.W.420, 423 (Wis. 1933);

Berghauer v. Heyl (In re Estate of Berghauer) , 2001 Wis. App. LEXIS1156 (Wis. Ct. App. 2001).

2. Mental Pain and Suffering . Grief or injury to feeling of the parent isnot recoverable under a wrongful death suit. Similarly, the sufferingexperienced 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 forthe conscious pain and suffering experienced by the deceased from thetime of the injury up until the time of death).

3. Punitive Damages. Punitive damages are not recoverable under theWisconsin Wrongful Death Statute, Wis. Stat. § 895.04, but arerecoverable in a survival action. Wis. Stat. § 895.01 see Wangen v.

Ford Motor Co. , 294 N.W.2d 437 (Wis. 1980).


a. Damages: Death Of Minor Child: Premajority Pecuniary Loss1890 WIS JI-CIVIL

(Plaintiffs), as parents of (child), claim loss of wages and services theywould have received from (child) during (child)'s minority had (he) (she)continued to live. Although parents are responsible for the cost of



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evidence which, under all of the circumstances of the case, reasonablysupports your determination of damages.

c. Death Of Child: Parent's Loss Of Society And Companionship1895 WIS JI-CIVIL

Question _ asks you to determine [(the parent)s'] [(parent)'s] loss ofsociety and companionship resulting from the death of (child). Societyand 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 monetarysupport from the child or the grief and mental suffering caused by thechild‘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; thesociety and companionship that had been given to the (parents) (parent) bythe child; and the personality, disposition, and character of the child. Theamount 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 arereasonably 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 willreasonably compensate (parents) (parent) for any loss of society andcompanionship (they) (he) (she) (have) (has) suffered.



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WYOMINGJohn W. GrundJoan S. Allgaier

Grund • Dagner, P.C. Denver, Colorado

(303) 830-7770


I. Economic Damages


2. Medical Expenses. Medical expenses incurred on behalf of the minorare 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 earningsof minor children belong to the parents. Kreigh v. Cogswell , 21 P.2d831 (Wyo. 1933).

4. Lost Future Earnings. Any earnings reasonably certain to be lost inthe future are recoverable. Little v. Kobos , 877 P.2d 752 (Wyo. 1994)(evidence in medical-malpractice action supported instruction for lostfuture earnings to child, where vocational-rehabilitation experttestified about child's physical limitations and economist testifiedabout economic consequences of child‘s di sability).

5. Prejudgment Interest. Wyoming does not generally allow recoveryof 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. Pain and Suffering. Minor plaintiff may recover for the physical andmental pain and suffering experienced as a result of injuries and thatare reasonably certain to be experienced in the future. Little v. Kobos ,877 P.2d 752 (Wyo. 1994). The amount to be assessed for pain andsuffering is within the discretion of the trier of fact. Blakeman v.Gopp , 364 P.2d 986 (Wyo. 1961).



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2. Loss of Enjoyment of Life. The award for this specific elementshould not duplicate the award given for any other element ofdamages. 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.2d193, 201 (Wyo. 1986).

4. Scars and Disfigurement. The amount to be assessed for damagessuffered by the plaintiff by reason of her scars and disfigurement iswithin the discretion of the trier of fact. Blakeman v. Gopp , 364 P.2d986 (Wyo. 1961).

5. Permanent Impairment and Disability. Damages for permanentimpairment and disability are recoverable if they are proven. See Littlev. Kobos , 877 P.2d 752 (Wyo. 1994). When a physician provides

evidence as to the permanency of an injury, the conclusion must beshown to be more probably true than not true. Blakeman v. Gopp , 364P.2d 986 (Wyo. 1961).

6. Punitive Damages. Punitive damages have been approved incircumstances involving outrageous conduct, such as intentional torts,torts involving malice and torts involving willful and wantonmisconduct. Cramer v. Powder River Coal, LLC , 204 P.3d 974 (Wyo.2009).


a. Measure of Damages – Personal Injury Wyoming Civil Pattern JuryInstructions 4.01

[Regardless of how you decide on the question of liability][If you decidefor the Plaintiff on the question of liability][If you find that the Plaintiff is50% or less at fault], you must fix the amount of money that willreasonably and fairly compensate the Plaintiff for those elements ofdamage 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 aresult of the injuries [and those reasonably probable to beexperienced in the future;

2. Disability and/or disfigurement;



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3. Loss of enjoyment of life and any loss of enjoyment of lifereasonably probable to be experienced in the future. The award forthis specific element should not duplicate the award given or anyother element of damage;

4. Loss of Earnings and Earning Capacity. The value of time,earnings, profits, salaries lost to this date, and the present cashvalue 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 necessarymedical care, treatment, and services received to date and anymedical expense reasonably probable to be incurred in the future;

6. Caretaking. The reasonable expense of necessary help inthe 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.

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

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 minorchild is not required to be joined in a single action with the minor‘s claim for

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 FuneralExpenses. Pecuniary damages are recoverable. W.S.A. § 1-38-102.In Coliseum Motor Co. v. Hester , 3 P.2d 105 (Wyo. 1931), theWyoming Supreme Court held that fair and just damages includedlosses of a pecuniary nature, such as the loss of the child‘s servicesduring minority; loss of support or services that the child was under noobligation 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 wrongful-death statute.

2. ―Investment.‖ The ―investment‖ of the money spent in birth andrearing of children is not a proper measure of damages under the

wrongful-death statute. Danculovich v. Brown, 593 P.2d 187, 196(Wyo. 1979).


1. Future Companionship, Society and Comfort, and MentalAnguish of Survivors. Damages for loss of probable futurecompanionship, society and comfort are recoverable. W.S.A. § 1-38-102. On the other hand, damages for mental suffering or anguish ofthe survivors of the decedent are excluded as an element of damagesunder 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 ofintentional 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.


a. Measure of Damages – Wrongful Death Wyoming Civil Pattern JuryInstructions 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 ofchance claim] the amount of damages, if any, sustained by [each] [the]claimant, taking into account the nature, extent, and duration of each ofthe following:

1. The amount each such claimant has failed or will fail to receivefrom the decedent‘s earnings, as explained in the followinginstruction;

2. The loss of probable future companionship, society andcomfort, which shall not include any damages for claimant‘smental anguish; and



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3. Any other monetary loss sustained and proved by any of theclaimants resulting from the death of the decedent, includingfuneral 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 formental anguish and/or suffering. It is not necessary that any witness shallhave expressed any opinion as to the dollar amount of damages. Youraward, if any, should be such sum as will fairly and adequatelycompensate the claimants. The amount awarded, if any, rests within yoursound discretion, and it is up to you to determine taking into considerationall the evidence in this case and from your knowledge, observation, andexperience in life. Your award, if any, should be for what damages arereasonable and just.



373

CANADALindsay LorimerMcMillan LLP 5

Toronto, Ontario(416) 865-7000




2. Medical and Other Related Expenses . Canada has a comprehensivesystem of public health care administered by provincial healthauthorities. Provincial statutes authorize subrogated claims by these

bodies to recover health care costs attributable to the tortious conductof third parties. 6 The health authorities can recover from at-fault

parties (and their insurers) the cost of any publicly-insured healthservices provided up to the time of settlement or judgment. Theauthorities may also recoup the cost of future health care services thatan injured person may need as a result of the tortious conduct. Thesesubrogated claims must generally be addressed as part of anysettlement. In some provinces, legislation prohibits a liability insurerfrom settling any personal injury claim without advance notice to the

public health authority so that th e authority‘s subrogated claim can be properly addressed. 7 Most provinces, however, bar their authorityfrom launching subrogated claims in motor vehicle accident caseswhere 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 CareCosts 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 HealthServices 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); MedicalCare Insurance Act , S.N.L. 1999, c. M-5.1, s. 19(1).



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however, such as physiotherapy expenses, are recoverable as pecuniary damages.

3. Loss of Wages or Wage-Earning Capacity . Pre-trial lost earningsare recoverable as special damages in Canada. The Supreme Court ofCanada has also held loss of wage-earning capacity to be recoverable,

not ―based on a fixed value that has been assigned to an abstractcapacity to earn,‖ but rather on ―the value of the earnings that she orhe 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 damagesis given in respect of all non-pecuniary losses suffered by a plaintiff,including pain and suffering, loss of amenities and loss of expectationof life. This award aims at providing a plaintiff with ―reasonablesolace for his misfortune‖ in the form of physical arrangements whichcan make his life more endurable, as ―n o money can provide truerestitution‖: see Andrews v. Grand & Toy Alberta Ltd. , [1978] 2S.C.R. 229. Throughout Canada, general damages are subject to aninflation- 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. Awardsin the neighborhood of the cap are generally reserved for the mostserious injury cases, such as those involving quadriplegia or severe

brain damage.

2. Aggravated Damages . Canadian courts do not view ―aggravateddamages‖ and ―punitive damages‖ as synonymous. Unlike punitivedamages, aggravated damages are compensatory in nature. They mayaugment a general damages award where the plaintiff‘s harm has beenaggravated 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 ashumiliation, degradation, violence, oppression, inability to complain,reckless conduct which displays a disregard of the victim and post-incident 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 relativelyrare, generally modest and limited to ―high -handed, malicious,arbitrary or highly reprehensible misconduct that departs to a markeddegree from ordinary standards of decent behaviour‖: Hill v. Church ofScientology of Toronto , [1995] 2 S.C.R. 1130. The highest punitivedamage award to date has been a $1 million sum awarded against an



375

insurer acting in bad faith in Whiten v. Pilot Insurance Co. , 2002 SCC18.

4. Disfigurement . Disfigurement, including burns or scarring, isrecoverable under Canadian law. Disfigurements to a child, affecting

his or her lifelong appearance and self-esteem, may attract particularlyhigh 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 andsuffering.‖

5. Loss of Use of Limb . The loss of use of a limb can be compensatedfor 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 areunlikely to be compensable. The damage in question must ―rise abovethe ordinary annoyances, anxieties and fears that people living insociety routinely, if reluctantly, accept.‖ See Mustapha v. CulliganCanada Ltd. , 2008 SCC 27. Finally, the award cannot be grantedseparately from general damages, and is thus subj ect 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 anactual outlay of money. The purpose of such an award is to provide solaceto 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 tosubstitute other amenities for those that the plaintiff has lost — not tocompensate the plaintiff for the loss of something with a money value. …Your award should address such losses suffered up to the date of trial andalso those [he/she] will suffer in the futu re. …

You should understand that the exercise of determining an appropriateaward for non-pecuniary loss is not intellectual in the sense that it is taughtas a course at law school. You can decide what is the correct figure. Yourfigure may differ from what I think is appropriate, but that does not



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necessarily mean you are wrong and I am right. You bring to the law thecommon sense of the community. Your decision helps the courts keep intouch 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 specialdirection I must give you. The law imposes an upper limit on the amountof money you may assess as damages for non-pecuniary losses in thenature of pain, injury, suffering and loss of enjoyment of life.

If you conclude that this is an instance where the plaintiff has sufferedcatastrophic or very severe injuries because of the event(s) of [date], thereis a rough upper limit you may award the plaintiff for non-pecuniarydamages because or [his/her] injuries. Examples of the kinds of injuriesthat 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 isthe sum of $ [amount].

(2) No evidence was led as to the amount of the limit. However, I cantell you that it was fixed by the Supreme Court of Canada in 1978at $100,000. Since then, we have had inflation. Today it issomewhere 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 medicalor other expenses paid in connection with injuries to his or her child. The parentmay recover his or her actual expenses, loss of income and compensation for lossof 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 offatal injury, as discussed below.

In all provinces, a minor has no standing to sue until he or she reaches theage of majority. Until then, a minor requires a litigation guardian to proceed with



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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 withoutany entitlement to the expenses claimed for: Hamilton v. Berger , [1972] 3W.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 provinceto province. All such claims, however, only stand if the deceased — had he or shenot 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 fordamages against thos e responsible for their family member‘s death, as well as thecategories of recovery available.


1. Funeral, Medical and Other Related Expenses . The provincial fatalaccidents acts, as well as Ontario‘s Family Law Act , provide thatexpenses relating to the deceased‘s funeral and the disposal of thedeceased‘s body are recoverable. The acts also provide for therecovery of expenses incurred for the care of the deceased between thetime of his or her illness and death. Family members‘ transportationand accommodation costs related to visits are also typically included.Some acts provide that grief counseling for immediate familymembers is recoverable. 11

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 thedeceased. 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‘slimitation period regime, which usually bars claims two years after they are ―discovered‖: see theOntario Limitations Act , R.S.O. 1990, c. L.15. However, once a minor appoints a litigationguardian, his or her limitation period begins running. This is in contrast to the rules governing inmany 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; NorthwestTerritories 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 Article1457 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).



378

was their expected future stream of economic benefits from thedeceased, taking both positive and negative contingencies intoaccount. Occasionally, where a reasonable basis exists to infer that achild 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 provincesconflict in their recognition of loss of care, guidance andcompanionship as a ground of recovery on a minor‘s death. Many ofthe fatal accidents statutes provide that only ―pecuniary‖ damages may

be recovered. 12 However, the Supreme Court has interpreted thatstatutory language not to prec lude the ―loss of care, guidance andcompanionship‖ claims expressly set out in most 13 of the statutes: seeOrdon Estate v. Grail , [1998] 3 S.C.R. 437 at para. 101. The BritishColumbia Court of Appeal has rejected any damages for ―love,affection or comp anionship,‖ which language is not present in itslegislation: 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 OntarioCourt 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 severefrontal lobe injury: see Sandhu v. Wellington Place Apartments , 2008ONCA 215. Those awards remain the largest of their kind in Canada.

2. General, Aggravated and Punitive Damages . Survivors may notclaim non-pecuniary damages for pain and suffering, loss of amenitiesor 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, $75,000to partners and parents); Saskatchewan Fatal Accidents Act , R.S.S. 1978, c. F-11, s. 4.1 ($30,000for 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).



punitive damages: Campbell v. Read , [1988] 3 W.W.R. 236(B.C.C.A.).


a. Damages – Wrongful Death – Child

(British Columbia)

―In the case of an event that causes the death of a child, our law providesthat damages may be awarded to the plaintiffs in proportion to the

pecuniary loss suffered by them. In this case the plaintiffs are the motherand father of the deceased child (and counsel have agreed that you neednot divide the loss which the mother or father have suffered separately, butyou 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 damagesfor 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 thechild, nor for grief and sorrow.

Pecuniary loss means the actual or anticipated financial benefit of whichthe parents have been deprived by the death of their child. In consideringthis 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 serviceswhich [the deceased child] may have provided in the home, as well asdirect monetary contributions. The parents are not required to prove a lossin 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 shouldtake into consideration what it would have cost the plaintiff(s) to educateand support [the deceased child] had [he/she] lived.

In weighing the matters that I have mentioned, you should consider theages 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 timeof the death or immediately prior thereto, and the respective lifeexpectancies as shown by the evidence. You should also consider thedisposition of [the deceased child], whether [he/she] followed any familyor cultural traditions of support or filial piety, and whether or not [he/she]

children tort claims

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