Damages and Claims in Minor Injury and Death Cases

DAMAGES RECOVERABLE IN A MINORS
PERSONAL INJURY ACTION AND A

MINORS WRONGFUL DEATH CLAIM
February 20, 2012
Lynne Jones Blain

Dannel C. Duddy
Editors
ALABAMA
Sean W. Shirley
Joseph D. Leavens
Balch & Bingham LLP
Birmingham, Alabama
(205) 251-8100
Damages Recoverable in a Minors Personal Injury Action
I.
Economic Damages:
1. Medical Expenses. A [parent] may recover as damages resulting
from the negligent bodily injury of his minor child, medical expenses
in treating such injuries... Smith v. Richardson, 171 So. 2d 96, 100
(Ala. 1965).
2. Future Medical Expenses. It is well established in this jurisdiction
that future medical expenses are a proper element of damages in
personal injury actions. Ensor v. Wilson By and Through Wilson, 519
So. 2d 1244, 1273 (Ala. 1987).
3. Nursing Services. When a parent loses time from his work or duties
in caring for an injured child, the measure of damages recoverable for
the parent is the value of the services in nursing or caring for the
child. Smith v. Richardson, 171 So. 2d 96, 100 (Ala. 1965).
4. Future Lost Wages. A child may recover for future lost earning
capacity. See Collins v. Shelley By and Through Shelley, 514 So. 2d
1358, 1363 (Ala. 1987) (jury award upheld where minor son and father
alleged permanent disability sufficient to imply impairment of earning
capacity); Ensor v. Wilson, 519 So.2d 1244 (Ala. 1987) (upholding
jury award for minor, including loss of earning capacity, where expert
testimony established her injury, her highest earnings at minimum
wage, her limited ability to work in a sheltered environment at onehalf the minimum wage, and the causal connection between the
physical impairment and the reduced earning capacity).
5. Loss of Child Services. A [parent] may recover as damages
resulting from the negligent bodily injury of his minor
childcompensation for loss of services. Smith v. Richardson, 171
So. 2d 96, 100 (Ala. 1965) [Loss of services] means the labor and
assistance of a child rendered for the [parent], and impl[ies] a loss
measured by pecuniary standards of value. Id. See also Hannon v.
Duncan, 594 So.2d 85, 93 (Ala. 1992) (Stating the same definition of
loss of child services, explaining that a plaintiff must establish the
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value of the services and holding that because plaintiff failed to

demonstrate the pecuniary value of minors chores around the house
and lawn mowing no loss of child services damages were recoverable).
6. Loss of Society is NOT recoverable. The loss of society of a child as
distinguished from the loss of his services cannot form the element of
recoverable damages. Smith v. Richardson, 171 So. 2d 96, 100 (Ala.
1965).
II.
Noneconomic Damages:
1. Physical Pain and Suffering. A child may recover pain and suffering
and mental anguish damages for a personal injury. See Daniels v. East
Alabama Paving, Inc., 740 So. 2d 1033 (Ala. 1999); see also WalMart Stores, Inc. v. Dobson, By and Through Dobson, 709 So. 2d
1252, 1254 (Ala. Civ. App. 1998) (upholding $20,000 jury award for
minor with head injury noting that the law is clear that there is no
yardstick to measure the amount of recompense which should be
awarded for pain or mental suffering.)
2. Punitive Damages. Like an adult, punitive damages are available if
the defendant acted with fraud, malice, or wantonness which caused
the injury to the child. See Ala. Code 6-11-20; see also Superskate,
Inc. v. Nolen by Miller, 641 So. 2d 231, 236 (Ala. 1994) (affirming
$25,000 past damages, $25,000 future damages, and $35,000 punitive
damages where plaintiff daughter, by and through her mother,
established the skating rinks willful and wanton conduct causing her
injury).
III.
Model Jury Instructions:

a. Medical Expenses for Child APJI 11.24 (2011 Supp.).
[Name of Plaintiff] says that [he/she] has bills for the medical care,
treatment and services for [name of minor child] that [he/she] has
paid or will have to pay and that [he/she] will have to pay in the
future.
The measure of damages for medical expenses is:
All reasonable expenses for medical care, treatment, and services
that [name of defendant]s conduct caused [name of plaintiff] to
pay, or that [he/she] owes and will have to pay.
You must decide if the treatment is reasonably necessary, that the
expenses for it are reasonable, and the need for the treatment is
caused by [name of defendant]s conduct.
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*Note on Use Use this instruction when the plaintiff father or mother, or
spouse, claims damages for the medical expenses for the care of a minor
child or their spouse.
b. Parents Nursing Services for Child APJI 11.25 (2011
Supp.).
[Name of plaintiff] claims damages for the nursing care [he/she]
provided to [name of minor child].
The measure of damages for the nursing care for [name of minor
child] is the reasonable monetary value of the services
You must decide if the services to [name of minor child] were
necessary, the reasonably monetary value of the services, and if the
need for the services was caused by [name of defendants
conduct].
*Note on Use A parents lost time from work and lost wages are
not compensable.
c. Loss of Services Minor Child Temporary Disability APJI
11.26 (2011 Supp.)
[Name of plaintiff] says [he/she] lost the services of [name of
minor child] because of [name of defendant]s conduct.
The measure of damages is the reasonably monetary value of
[name of child]s services.
You must decide the reasonable monetary value of [name of
child]s services, and if the loss was caused by [name of
defendant]s conduct.
*Note on Use Use this instruction when a parent claims loss of
the minor childs services.
d. Loss of Services Minor Child Permanent Disability APJI
11.27 (2011 Supp.).
[Name of plaintiff] says that [name of minor child] is permanently
harmed because of [name of defendant]s conduct and [name of
plaintiff] has lost and will lose the childs services.
The measure of damages is the reasonable monetary value of
[name of child]s services until the child is 19 years old.
You must decide if [name of child] was permanently harmed, the

reasonable monetary value of the childs services, and if the loss
was caused by [name of defendant]s conduct.
*Note on Use Use this instruction when a child has a permanent
injury and a parent claims the loss of the childs services.
Who owns the right to sue for medical expenses? Parent or child? If
parent does that end at the age of majority when it becomes childs claim?
The parents, if living together, have a joint right to sue. If the parents are
divorced or separated, and custody is vested in one parent over the other, or if a
third party has legal custody of the child, the parent or individual with legal
custody owns the right to sue for expenses for the minors personal injuries. See
Ala. Code 6-5-390.
The claim becomes the minors claim at the age of majority and they have
two years to file. The statute of limitations for a negligence action is two years in
Alabama. See Ala. Code 6-2-8.
In cases where the minors parent claims damages extending beyond the
age of majority the damages are split between the child and the parent. See
Williston v. Ard., 611 So.2d 274 (Ala. 1992). The parent is covered for expenses
incurred prior to the age of majority and the minor receives damages for losses
extending beyond the age of majority. In Williston the minor suffered irreversible
brain damage during a routine appendectomy. Id. at 276. The minor sued by and
through her mother for medical malpractice. Id. The Supreme Court upheld a
$4,500,000 damage award for the minor based on her future costs of care and her
future lost wages. Id. at 283. The Court affirmed a separate damage award for
the mother based on the value of her services in nursing her injured daughter. Id.
at 283. The Courts remittitur as to the mothers damages was based on her failure
to prove the loss of her childs services. Id. The Court upheld the remainder of
the mothers damages based on past medical expenses paid. Id.
Damages Recoverable in a Minor Wrongful Death Claim
The parents or the personal representative may bring suit on behalf of the
deceased minor child and only punitive damages are recoverable. See Ala. Code
6-5-391, 6-5-410.
I.
Wrongful Death of a Minor (who may bring suit)
Ala. Code 6-5-391 provides:

(a) When the death of a minor child is caused by the wrongful act,
omission, or negligence of any person, persons, or corporation, or the
servants or agents of either, the father, or the mother as specified in
Section 6-5-390, or, if the father and mother are both dead or if they
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decline to commence the action, or fail to do so, within six months

from the death of the minor, the personal representative of the minor
may commence an action.
(b) An action under subsection (a) for the wrongful death of the minor
shall be a bar to another action either under this section or under
Section 6-5-410.
(c) Any damages recovered in an action under this section shall be
distributed according to the laws of intestate succession, Article 3
(commencing with Section 43-8-40) of Chapter 8 of Title 43.
II.
Wrongful Death Damages
In a wrongful death action, the only damages recoverable are punitive in

nature, and the amount thereof is determined by the gravity of the wrong done, the
propriety of punishing the wrongdoer, and the need for deterring others from
committing the same or similar wrongful conduct. Estes Health Care Centers,
Inc. v. Bannerman, 411 So. 2d 109, 112 (1982). Ordinarily, in a wrongful-death
action, mental suffering of family members is not compensable. Daniels v. East
Alabama Paving, Inc., 740 So. 2d 1033, 1048 (Ala. 1999).
Ala. Code 6-5-410 Wrongful Death Statute provides:
(a) A personal representative may commence an action and recover such
damages as the jury may assess in a court of competent jurisdiction within
the State of Alabama, and not elsewhere, for the wrongful act, omission,
or negligence of any person, persons or corporation, his or their servants,
or agents, whereby the death of his testator or intestate was caused,
provided the testator or intestate could have commenced an action for such
wrongful act, omission, or negligence if it had not caused death.
(b) Such action shall not abate by the death of the defendant, but may be
revived against his personal representative and may be maintained though
there has not been prosecution, conviction or acquittal of the defendant for
the wrongful act, omission, or negligence.
(c) The damages recovered are not subject to the payment of the debts or
liabilities of the testator or intestate, but must be distributed according to
the statute of distributions.
(d) Such action must be commenced within two years from and after the death
of the testator or intestate.
III.
Model Jury Instruction:

Wrongful Death APJI 11.28 (2011 Supp.).
This is a claim for the wrongful death of [name of decedent].
The damages in this case are punitive and not compensatory.
Punitive damages are awarded to preserve human life, to punish
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[name of defendant] for [his/her/its] wrongful conduct, and to deter

or discourage [name of defendant] and others from doing the same
or similar wrongs in the future.
The amount of damages must be directly related to [name of
defendant]s culpability, and by that I mean how bad [his/her]
wrongful conduct was. You do not consider the monetary value of
[name of decedent]s life because the damages are not to
compensate [name of plaintiff] or [name of decedent]s family
from a monetary standpoint because of his or her death.
The amount you award is within your discretion based on the
evidence and the guidelines in this instruction.
*Note on Use Use this instruction in all claims for wrongful
death.
ALASKA
Brian R. Cannon
Harman, Claytor, Corrigan & Wellman
Richmond, Virginia
(804) 747-5200
I.
Economic Damages:
1. Medical Expenses. The parents own the right of recovery for medical
expenses of a minor, absent an implied waiver by failing to object
when the minor seeks the damages or by testifying on behalf of the
minor. Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 950 (Alaska
1986).
2. Future Medical Expenses. Future medical expenses are appropriate
for compensation. Such damages must be proven with a reasonable
probability that they will occur in the future. Pluid v. B.K., 948 P.2d
981, 984 (Alaska 1997). Once the existence of future medical
expenses (or any other damages) has been proven to that standard, then
the amount of those damages need only be proven at a level that
affords the fact finder an ability to make a reasonable estimate of the
damages. Id.
3. Future Lost Wages. Impairment of earning capacity is a more
accurate calculation of damages for future lost wages than simply lost
earnings. Morrison v. State of Alaska, 516 P.2d 402, 404 (Alaska
1973). This category is also related to life expectancy estimates. In
the same case, the Supreme Court of Alaska found that a mortality
table is not binding on a court, but deviation from it must be accounted
for by some specific evidence presented at trial. Id. at 406.
II.
Non-economic Damages:
1. Physical Pain and Suffering, Etc. Alaska allows for the recovery of
pain and suffering and other non-economic losses. These are covered
broadly in Instruction 20.06 (below).
Specifically, tort reform has limited the recovery of non-economic
damages to the greater of $400,000 or $8,000 times the life expectancy
of the injured/deceased. AS 09.17.010(b). This cap applies to both
personal injury and wrongful death claims. This restriction was upheld
in 2002 by the Supreme Court of Alaska. Evans ex rel. Kutch v. State,
56 P.3d 1046 (Alaska 2002).
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In cases of severe or permanent physical injury/disfigurement, the cap

is greater of $1,000,000 or $25,000 multiplied by the plaintiff's life
expectancy. AS 09.17.010(c).
2. Punitive Damages. Punitive damages are available to minor if the
conduct was done with malice, was outrageous, or evidenced reckless
indifference to the interest of another. AS 09.17.20(b). Tort reform
placed limits on recovery for these damages in a complex fashion that
depends on the size of the company and various multipliers.
Generally, the cap is around $500,000. AS 09.17.020.
III.
Jury Instructions:
20.02A
PAST MEDICAL EXPENSES
The (first, second, etc.) item of economic loss claimed by the plaintiff is the
reasonable expense of necessary medical care from (insert date of the
accident) to (insert date of trial)]. [In fixing this amount, "medical care"
includes: (insert any claimed services or items which the Court determines
are "medical care", such as nursing care, drugs, etc.).]
20.02B
FUTURE MEDICAL EXPENSES
The (first, second, etc.) item of economic loss claimed by the plaintiff is the
reasonable expense of necessary medical care reasonably probable to be
received in the future. In order to award damages for a future medical
expense, you must find that
(1)
the expense is reasonably necessary;
(2)
the expense is reasonably certain to occur; and
(3)
the evidence provides you with a reasonable basis for

estimating the amount of the expense.
[In deciding how long the plaintiff may have medical expenses in the future
you may need to consider (his) (her) current life expectancy.]
[In fixing this amount, "medical care" includes: (insert any claimed services
or items which the Court determines are "medical care", such as nursing
care, drugs, etc.).]
20.03 PAST EARNINGS
The (first, second, etc.) item of economic loss claimed by the plaintiff is
the value of (work time) (earnings) (profits) (salaries) lost by the plaintiff
from the (insert date of the accident) to (insert date of trial). To calculate
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this amount, you must deduct federal [and state] income taxes that would
have been paid.
20.04 LOSS OF FUTURE EARNING CAPACITY
The (first, second, etc.) item of economic loss claimed is the reduction in the
ability of the plaintiff to earn money in the future.
You may award the plaintiff a fair amount for any reduction in future ability
to earn money that (he) (she) is reasonably probable to experience.
To calculate this amount, you must determine the difference between the
plaintiff's ability to earn money before the injury and (his) (her) ability to
earn money after the injury. To do this you may consider the plaintiff's
health, physical and mental abilities; (his) (her) work habits and occupation
before the accident; the nature and extent of (his) (her) injuries; and how
long and to what extent (his) (her) injuries will affect (his) (her) earning
ability in the future. Your calculation of the plaintiff's ability to earn money
before the injury must be based on the plaintiff's life expectancy before the
injury occurred.
To decide the plaintiff's earning ability, both before and after the injury, you
may consider the wages (he) (she) earned before and after the injury and any
reasonably probable increases in those wages due to promotions or automatic
step increases. You must not make any deduction for any future income
taxes [, and you must not consider any pay increases due to increases in the
cost of living].
20.05 INFLATION AND PRESENT VALUE/FUTURE ECONOMIC
LOSSES
Plaintiff claims that (he) (she) will have economic losses in the future,
consisting of [future medical expenses] [and] [loss of future earning
capacity]. I will now instruct you on two principles you must apply to
calculate an award for a future economic loss.
The first principle is that an award for future economic loss must account for
the effect that any future inflation would have on the amount of the future
economic loss. [Any award for future medical expenses must be based on
the cost of the medical expenses when they are incurred in the future.] [Any
award for future loss of earning capacity must account for reasonably
probable increases in wages due to inflation.]
The second principle is that any award that you make for future economic
loss must be equal to the amount of money that the plaintiff would need to
invest today so that the total of the amount invested today plus future
investment earnings equals the amount of the future economic loss when it
will occur in the future. To make this calculation, you must make three
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assumptions: (1) that the money you award to the plaintiff for a future
economic loss would be available to (him) (her) today; (2) that the plaintiff
would invest the money immediately; and (3) that the plaintiff would invest
the money in investments that would pay the long-term future interest rates
that would be obtained in the best and safest investments.
Use Note
This instruction must be given whenever the plaintiff claims a future
economic loss in a personal injury case, and where the parties have not
agreed pursuant to AS 09.17.040(c) to compute damages under the Beaulieu
rule. If the parties have agreed to use the Beaulieu rule, this instruction
should not be given.
The appropriate bracketed language in the second paragraph should be used
depending upon whether the plaintiff claims future medical expenses, loss of
future earning capacity or both.
Comment
In personal injury cases, AS 09.17.040(b) requires the fact finder to reduce
future economic damages to present value, and to consider the effect of
future anticipated inflation. This instruction is intended to convey these
concepts to the jury.
20.06 NON-ECONOMIC LOSSES
The (first, second, etc.) item of loss claimed by the plaintiff is for noneconomic losses. You may award the plaintiff a fair amount to compensate
the plaintiff for [pain and suffering] [loss of enjoyment of life]
[disfigurement] [physical impairment] [and] [inconvenience] resulting from
the injury. Such an award should fairly compensate the plaintiff for the noneconomic losses (he) (she) has experienced from the date of the injury until
the date of trial [and for non-economic losses that (he) (she) is reasonably
probable to experience in the future]. [In deciding how long the plaintiff
may experience such losses in the future, you may need to consider (his)
(her) current life expectancy.]
The law does not establish a definite standard for deciding the amount of
compensation for non-economic losses, and the law does not require that any
witness testify as to the dollar value of non-economic losses. You must
exercise your reasonable judgment to decide a fair amount in light of the
evidence and your experience.
* NOTE: This instruction replaces former instructions on physical
impairment and pain and suffering.
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20.07M
LIMIT ON NON-ECONOMIC DAMAGES SEVERE
PERMANENT PHYSICAL IMPAIRMENT
Plaintiff claims that the defendant's conduct caused him/her to have a severe
permanent physical impairment. The plaintiff has a severe permanent
physical impairment if he/she has a physical condition that substantially and
permanently limits one or more of his/her major life activities. Major life
activities include functions such as caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning and working.
20.07N
LIMIT ON NON-ECONOMIC DAMAGES SEVERE
DISFIGUREMENT
Plaintiff claims that he/she was severely disfigured because of the
defendant's conduct. The plaintiff had a severe disfigurement if a reasonable
person would find that after passage of a reasonable healing period, the
plaintiff had an injury that marred his/her physical appearance and caused a
degree of unattractiveness sufficient to bring negative attention or
embarrassment.
20.10 FUTURE DAMAGES - NO REDUCTION TO PRESENT
VALUE
As I have instructed you, you may decide it is reasonably probable that the
plaintiff will have some future [non-economic] losses resulting from the
(accident). In fixing an amount for future [non-economic] losses, you must
disregard the fact that any amount you award the plaintiff may be paid before
the actual loss occurs. You must also disregard the fact that the value of
money may change over time.
20.11 AGGRAVATION OF PRE-EXISTING CONDITION OR
DISABILITY
A person who has a condition or disability at the time of an injury cannot
recover damages for that condition or disability. However, (he) (she) is
entitled to recover damages for an aggravation of such pre-existing condition
or disability if the aggravation is the legal result of the injury.
This is true even if the person's condition or disability made (him) (her) more
susceptible to the possibility of ill effects than a normally healthy person
would have been, and even if a normally healthy person probably would not
have suffered any substantial injury. In other words, the law provides that a
defendant takes the plaintiff as (he) (she) (it) finds (him) (her) (it).
Where a pre-existing condition or disability is so aggravated, the damages as
to such condition or disability are limited to the additional damages caused
by the aggravation.
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20.12 ADDITIONAL HARM RESULTING FORM ORIGINAL

INJURY
If you find the defendant is legally responsible for the (accident), you may
award the plaintiff, in addition to compensation for losses resulting from the
original injury, (his) (her) losses resulting from:
1.
[Aggravation of the original injury resulting from the failure

of (insert name or the word "others") to use reasonable care
in providing medical or hospital treatment of the original
injury.]
2.
[Aggravation of the original injury resulting from the failure

of (insert name or the word "others") to use reasonable care
in transporting the plaintiff to a place where medical
treatment is available.]
20.13 LIFE EXPECTANCY

In fixing the amount of compensation for some items of loss you may have
to decide the life expectancy of the plaintiff, [either] [as it was prior to the
accident] [and] [or] [what it is now after the accident]. I will now explain
how you are to do this.
You have available as evidence what is called a table of mortality.
According to the table, the life expectancy of a (male) (female) person aged
(insert plaintiff's age) is (insert number from table) years. The table tells you
the average life expectancy of persons of a particular age and sex. Many
persons live longer and many die sooner than the average.
You should assume the figure in the table represents the probable life
expectancy of the plaintiff unless there is other evidence such as (his) (her)
occupation, health, family history, habits, and other activities from which
you can reasonably conclude that the plaintiff's life expectancy is longer or
shorter than average.
The parent has the primary right of action for past medical expenses on
behalf of an un-emancipated minor. However, this right may be waived by the
parent. If the parent fails to object to the infants seeking those damages or if the
parent testifies on the childs behalf in the case, then the parent is deemed to have
impliedly waived a claim to those damages. Alaskan Village, Inc. v. Smalley, 720
P.2d 945, 950 (Alaska 1986).
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Damages Recoverable in a Minors Wrongful Death Action

I.
Who May Recover
In a wrongful death action of a child below the age of majority, the

parents or personal representative of the child may bring a claim (provided the
minor has no dependents). AS 09.55.570. If there are no statutory beneficiaries
surviving, then the estate of the deceased minor may bring the action. Kulawik v.
ERA Jet Alaska, 820 P.2d 627 (Alaska 1991).
II.
Statute Damages Recoverable
Alaska Code 09.55.570 Action for Wrongful Death provides:

(a) Except as provided under (f) of this section and AS 09.65.145, when the death
of a person is caused by the wrongful act or omission of another, the personal
representatives of the former may maintain an action therefor against the latter, if
the former might have maintained an action, had the person lived, against the
latter for an injury done by the same act or omission. The action shall be
commenced within two years after the death, and the damages therein shall be the
damages the court or jury may consider fair and just. The amount recovered, if
any, shall be exclusively for the benefit of the decedent's spouse and children
when the decedent is survived by a spouse or children, or other dependents. When
the decedent is survived by no spouse or children or other dependents, the amount
recovered shall be administered as other personal property of the decedent but
shall be limited to pecuniary loss. When the plaintiff prevails, the trial court shall
determine the allowable costs and expenses of the action and may, in its
discretion, require notice and hearing thereon. The amount recovered shall be
distributed only after payment of all costs and expenses of suit and debts and
expenses of administration.
(b) The damages recoverable under this section shall be limited to those
which are the natural and proximate consequence of the negligent or wrongful act
or omission of another.
(c) In fixing the amount of damages to be awarded under this section, the
court or jury shall consider all the facts and circumstances and from them fix the
award at a sum which will fairly compensate for the injury resulting from the
death. In determining the amount of the award, the court or jury shall consider but
is not limited to the following:
(1) deprivation of the expectation of pecuniary benefits to the beneficiary or
beneficiaries, without regard to age thereof, that would have resulted from the
continued life of the deceased and without regard to probable accumulations or
what the deceased may have saved during the lifetime of the deceased;
(2) loss of contributions for support;
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(3) loss of assistance or services irrespective of age or relationship of

decedent to the beneficiary or beneficiaries;
(4) loss of consortium;
(5) loss of prospective training and education;
(6) medical and funeral expenses.
(d) The death of a beneficiary or beneficiaries before judgment does not
affect the amount of damages recoverable under this section.
(e) The right of action granted by this section is not abated by the death of a
person named or to be named the defendant.
(f) A person whose act or omission constitutes the felonious killing of
another person may not recover damages for the death of that person either
directly or as a personal representative of that person's estate. In this subsection, a
"felonious killing" means a crime defined by AS 11.41.100 - 11.41.140.
III.
Jury Instructions
04.05A
WRONGFUL
DEATH
ACTION
IDENTIFICATION OF STATUTORY BENEFICIARIES
In this case, (insert name of claimant(s)) (is) (are) (claim(s) to be)

the statutory beneficiar(y)(ies) of the deceased.
[I shall use the word "beneficiar(y)(ies)" to refer to (this) (these)
claimant(s).]
[You must decide if (insert name of claimant(s)) qualif(y)(ies) as
beneficiar(y)(ies) of the deceased. (You must make this decision
separately for each claimant.) Will now tell you how to decide if
the claimant(s) qualif(y)(ies) as beneficiar(y)(ies). (You may find
that more than one person qualifies as a beneficiary.)]
[The deceased's (wife) (husband) qualifies as a beneficiary.
Therefore, if you find that (insert name of claimant) was legally
married to the deceased at the date of death, then (insert name of
claimant) is a beneficiary.]
[A child of the deceased qualifies as a beneficiary. Therefore, if
you find that (insert name of claimant) is the biological or legally
adopted child of the deceased, then (insert name of claimant) is a
beneficiary.]
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[A person who was a "dependent" of the deceased at the time of

death qualifies as a beneficiary. For a claimant to qualify as a
dependent, you must find that it is more likely true than not true:
(1)
that the claimant was a close relative to the decedent or, at
the time of decedent's death, occupied a position similar to that of a
close relative; and
(2)
that the deceased made significant contributions of support
upon which the claimant was actually dependent at the time of
deceased's death; and
(3)
that these contributions would have continued, had the
deceased live. In deciding whether the contributions would have
continued, you may consider, among other things, the length of
time the deceased had made the contributions of support.]
[If you find that (insert name of claimant(s)) qualif(y)(ies) as
beneficiar(y)(ies), you should include (him) (her) (them) when
considering Instructions No. ______ applicable to beneficiaries.]
[If you find that none of the claimants qualify as beneficiaries, the
plaintiff may still maintain this lawsuit for the benefit of the
deceased's estate. Then, if you find that the plaintiff is entitled to
win this lawsuit, in calculating the amount of compensation, you
should refer only to Instruction No. _____ and not to Instruction
No. _____.]
04.05B
WRONGFUL DEATH RECOVERY BY
STATUTORY BENEFICIARIES
If you decide that the defendant is legally responsible for the death
of the deceased, you must decide what amount of money will fairly
and justly compensate (each)(the) beneficiary for the harm caused
by the death of the deceased. [You must state separately the
amount for each beneficiary.]
I will now list for you each item of loss claimed [by each
beneficiary]. [Insert list.]
(1)
(2)
(3)
. . . .
16
You may not assume because I list an item of loss or explain how
to measure a particular loss that you are required to award damages
for that loss. For each item of claimed loss, you must decide
whether it is more likely true than not true that:
(1)
that the beneficiary had such a loss or is reasonably
probable to have such a loss in the future; and
(2)
that the loss was legally caused by the conduct of the
defendant which forms the basis of your verdict.
If both of these things are true, then you must decide how much
money will fairly compensate the beneficiary for that item of loss.
If one or both of these things are not true with respect to a
particular item of loss, you may not make an award for that loss.
04.06A
SUPPORT
WRONGFUL DEATH DAMAGES PAST LOSS OF
The first item of claimed loss is the past loss of contributions for support
that (the) (each) beneficiary could have reasonably expected to receive
from the deceased from the date of death to the date of trial, (insert date),
had the deceased continued to live.
In fixing this amount, you may consider, along with other evidence, the
amount of money the deceased would have had available to provide
contributions for support; the willingness of the deceased to provide
contributions for support; the extent of the support contributions
customarily provided by the deceased in the past; the support contributions
reasonably expected to be provided by a (insert relationship of deceased to
the beneficiary/ies, e.g., husband to his wife and children); and how long
(the) (each) beneficiary would have received such contributions for
support. You may consider the contributions for support (the) (each)
beneficiary would have received from the deceased even though the
deceased may not have been legally required to provide support.
To determine how much money the deceased would have had available
from which to provide contributions for support, you should do the
following: Compute the amount the deceased could have earned had (he)
(she) lived from the date of death to the date of trial, (insert date). I will
explain in a few minutes how to compute the amount the deceased could
have earned. Subtract from that figure the income taxes the deceased
would have paid on those earnings. Then subtract the amount the
deceased would have spent on (himself) (herself) during that period, had
(he) (she) lived. The remaining amount is what the deceased would have
had available to contribute for support.
17
04.06B WRONGFUL DEATH DAMAGES FUTURE LOSS OF

SUPPORT
The second item of claimed loss is the future loss of contributions for
support that (the) (each) beneficiary could have reasonably expected to
received from the deceased from the date of death to the date of trial,
(insert date), to the end of the deceased's nature life expectancy, had the
deceased continued to live.
In fixing this amount, you may consider, along with other evidence, the
amount of money the deceased would have had available to provide
contributions for support; the willingness of the deceased to provide
contributions for support; the extent of the support contributions
customarily provided by the deceased in the past; the support contributions
reasonably expected to be provided by a (insert relationship of deceased to
the beneficiary/ies, e.g., husband to his wife and children); and how long
(the) (each) beneficiary would have received such contributions for
support. You may consider the contributions for support (the) (each)
beneficiary would have received from the deceased even though the
deceased may not have been legally required to provide support.
To determine how much money the deceased would have had available to
provide future contributions for support, you should do the following:
Compute the amount the deceased could have earned from the date of
trial, (insert date), to the end of (his) (her) natural life expectancy. I will
explain in a few minutes how to compute the amount the deceased could
have earned. Do not subtract any amount for payment of future income
taxes. Do subtract the amount the deceased would have spent on (himself)
(herself) had (he) (she) lived to the end of (his) (her) natural life
expectancy. The remaining amount is what the deceased would have had
available to contribute to future support.
[Any award for future loss of contributions for support must be reduced to
present cash value. I will explain in a few minutes the meaning of present
cash value and how to reduce to present cash value.]
04.07 WRONGFUL DEATH
ASSISTANCE OR SERVICES
DAMAGES
LOSS
OF
The items of claimed loss are the fair value of the assistance or services
that the deceased reasonably could have been expected to give to (the)
(each) beneficiar(y)(ies) if the deceased had continued to live, even though
the deceased was under no legal obligation to provide such assistance or
services.
In fixing this amount for each individual beneficiary, you may consider,
along with the evidence, the willingness of the deceased to provide
18
assistance or services; the nature of the assistance or services customarily

provided by the deceased; the assistance or services reasonably expected
to be provided by a (insert relationship of deceased to the
beneficiar(y)(ies), e. g., husband to his wife, mother to her adult son); and
how long the deceased would have provided such assistance or services.
04.08 WRONGFUL
CONSORTIUM
DEATH
DAMAGES
LOSS
OF
The item of claimed loss is the fair value of society, comfort, care,
protection, affection and companionship that the deceased reasonably
could have been expected to provide to (the) (each) beneficiary if the
deceased had continued to live.
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
PROSPECTIVE TRAINING AND EDUCATION
LOSS
OF
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.
along with other evidence, the ability and willingness of the deceased to
impart such skill or knowledge to (the) (each) beneficiary.
04.10 WRONGFUL DEATH DAMAGES MEDICAL AND
FUNERAL EXPENSES
The item of claimed loss is the reasonable medical and funeral expenses
which resulted from the injury or death of the deceased.
04.11 WRONGFUL DEATH DAMAGES
SUFFERING OF BENEFICIARY
PAIN
AND
The item of claimed loss is a fair amount to compensate (the) (each)

beneficiary for the sorrow, mental distress and grief that (he) (she) (they)
have suffered because of the death of the deceased.
*Note, it must be a statutory beneficiary
19
ARIZONA
John Merrick
Richmond, Virginia
(804) 747-5200
I.
Economic Damages:
1.
Medical Expenses. Both the minor and the minors parents are
entitled to recover pre-majority medical expenses, but double
recovery is not permitted. Estate of Desala v. Prescott Unified
School District No. 1, 226 Ariz. 387, 249 P.3d 767 (2011)
(overruling Pearson & Dickerson Contractors, Inc. v. Harrington,
60 Ariz. 354, 137 P.2d 381 (1943) and S.A. Gerard Co. v. Couch,
43 Ariz. 57, 29 P.2d 151 (1934). Children may recover postmajority medical expenses. Id.
2.
Future Medical Expenses. A child may recover for future

medical expenses. See City of Yuma v. Evans, 85 Ariz. 229, 336
P.2d 135 (1959).
3.
Nursing Services. A child may recover for future hospital or

nursing expenses. See City of Yuma v. Evans, 85 Ariz. 229, 336
P.2d 135 (1959). A parent may recover for the lost time away
from work to care for an injured child, medical expenses incurred
in caring for the child, and other provision of care costs, although
the injury, pain and suffering, etc. belong to the minor child.
Sheppard v. Crow-Barker Paul No. 1, LP, 192 Ariz. 539, 549,
58, 968 P.2d 612, 622 (App. 1998).
4.
Lost Wages. Past and future lost wages are an appropriate

measure of damages under Arizona law. Felder v. Physiotherapy
Associates, 215 Ariz. 154, 158 P. 3d 877 (2007); Lewis v. N.J.
Riebe Enterprises, Inc., 170 Ariz. 384, 825 P.2d 5 (1992).
5.
Loss of Childs Services. Parent being entitled to minor child's

services and earnings, infant suing for personal injuries cannot
ordinarily recover for impairment of his earning capacity during
infancy. S. A. Gerrard Co. v. Couch, 43 Ariz. 57, 29 P.2d
151(1934).
20
II.
III.
1.
Physical Pain and Suffering. Children may recover pain and

suffering. Estate of Desala v. Prescott Unified School District No.
1, 226 Ariz. 387, 249 P.3d 767 (2011). Children may recover for
future pain and mental anguish. See City of Yuma v. Evans, 85
Ariz. 229, 336 P.2d 135 (1959).
2.
Loss of Consortium. Parents may maintain a cause of action for

loss of their child's consortium when the child suffers severe,
permanent and disabling injury that substantially interferes with
child's capacity to interact with parents in a normally gratifying
way; however, the injury need not be the functional equivalent of
death or even be categorized as catastrophic. Whether the
threshold of a significant interference with the normal relationship
between parent and child has been met is a question of law for the
judge to determine. Once the judge finds that the child's injuries
are sufficiently severe to warrant a cause of action for loss of
consortium, the trier of fact determines the question of recovery or
the amount recoverable based on the degree of that interference.
Pierce v. Casas Adobes Baptist Church, 162 Ariz. 269, 782 P.2d
1162 (1989). Cause of action for loss of consortium is limited to
spouses, parents and children. Kaufman v. Langhofer, 223 Ariz.
249, 222 P.3d 272 (2009). Parents can recover damages for loss of
their childs 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.
Jury Instructions
Revised Arizona Jury Instructions (Civil) 4th: Personal Injury
Damages 1
If you find [any] [name of defendant] liable to [name of plaintiff],
you must then decide the full amount of money that will reasonably and
fairly compensate [name of plaintiff] for each of the following elements of
damages proved by the evidence to have resulted from the
fault of [any] [name of defendant] [party] [person]:
1.
The nature, extent, and duration of the injury.
2.
The pain, discomfort, suffering, disability, disfigurement,

and anxiety already experienced, and reasonably probable
to be experienced in the future as a result of the injury.
21
3.
Reasonable expenses of necessary medical care, treatment,

and services rendered, and reasonably probable to be
incurred in the future.
4.
Lost earnings to date, and any decrease in earning power or

capacity in the future.
5.
Loss of love, care, affection, companionship, and other

pleasures of the [marital] [family] relationship.
6.
Loss of enjoyment of life, that is, the participation in lifes

activities to the quality and extent normally enjoyed before
the injury.

Damages 4.
If you find [name of defendant] liable to [name of plaintiff], you may
consider assessing additional damages to punish [name of defendant] or to
deter [name of defendant] and others from similar misconduct in the
future. Such damages are called punitive or exemplary damages.
To recover such damages, [name of plaintiff] has the burden of proving by
clear and
convincing evidence, either direct or circumstantial, that [name of
defendant] acted with an evil mind. This required state of mind may be
shown by any of the following:
1.
2.
3.
4.
Intent to cause injury; or

Wrongful conduct motivated by spite or ill will; or
[Name of defendant] acted to serve his own interests,
having reason to know and consciously disregarding a
substantial risk that his conduct might significantly injure
the rights of others.]
[[Name of defendant] consciously pursued a course of
conduct knowing that it created a substantial risk of
significant harm to others.]
To prove this required state of mind by clear and convincing evidence,

[name of plaintiff] must persuade you that the punitive damages claim is
highly probable. This burden of proof is more demanding than the
standard of more probably true than not true, which applies to all other
claims in this case, but it is less demanding than the standard of proof
beyond a reasonable doubt, which is used in criminal cases.
22
The law provides no fixed standard for the amount of punitive damages
you may assess, if any, but leaves the amount to your discretion.
[However, if you assess punitive damages, you may consider the character
of [name of defendant]s conduct or motive, the nature and extent of the
harm to plaintiff that [name of defendant] caused, and the nature and
extent of defendants financial wealth.]
Source: 1. Elements of Punitive Damages: Volz v. Coleman Co., Inc., 155
Ariz. 567, 748 P.2d 1191 (1987); Gurule v. Illinois Mut. Life & Cas. Co.,
152 Ariz. 600, 734 P.2d 85 (1987); Hawkins v. Allstate Ins. Co., 152 Ariz.
490, 733 P.2d 1073 (1987); Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d
565 (1986); Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 723
P.2d 675 (1986); Bradshaw v. State Farm Mut. Auto. Ins., 157 Ariz. 411,
758 P.2d 1313 (Ct. App. 1988).
parent, does that end at the age of majority when it becomes childs claim?
Both the minor and the minors 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 of
the surviving husband or wife, child, parent or guardian, or personal
representative of the deceased person for and on behalf of the surviving
husband or wife, children or parents, or if none of these survive, on behalf
of the decedent's estate.
B. Either parent may maintain the action for the death of a child, and the
guardian may maintain the action for the death of the guardians ward.
C. The amount recovered in an action for wrongful death shall be
distributed to the parties provided for in subsection A in proportion to their
damages, and if recovery is on behalf of the decedent's estate the amount
shall be an asset of the estate.
23
D. For the purposes of subsection A, "personal representative" includes

any person to whom letters testamentary or of administration are granted
by competent authority under the laws of this or any other state. The
personal representative may maintain the action for wrongful death
without the issuance of further letters or any other requirement or
authorization of law.
II.
Damages Recoverable
A. R. S 12-613. Measure of damages; nonliability for debts of
decedent.
In an action for wrongful death, the jury shall give such damages as it
deems fair and just with reference to the injury resulting from the death to
the surviving parties who may be entitled to recover, and also having
regard to the mitigating or aggravating circumstances attending the
wrongful act, neglect or default. The amount recovered in such action
shall not be subject to debts or liabilities of the deceased, unless the action
is brought on behalf of the decedent's estate.
Other
1. Loss of Consortium. In Arizona, parents may recover loss of
consortium claims for the wrongful death of their child, as well as
children for the loss of their parents. Reben v. Ely, 146 Ariz. 309, 705
P.2d 1360 (1985).
2. Loss of Probability of Inheritance. Arizona recognizes the loss of
probability of inheritance. Salinas v. Kahn, 2 Ariz.App. 181, 407 P.2d
120 (App. 1965). Although no case has addressed the loss of
probability of inheritance from a minor under the wrongful death
statutes, this is compensable under the Employers Liability Law.
Pacific Gas & Elec. Co. v. Almanzo, 22 Ariz. 431, 198 P. 457 (1921).
3. Grief, Pain, Suffering. Grief, pain, and suffering are recoverable by
all statutory beneficiaries in a wrongful death action. Vasquez v. State,
220 Ariz. 304, 206 P.3d 753 (2008).
24
III.
Jury Instruction
Damages 3
If you find [name of defendant] liable to [name of plaintiff], you must then
decide the full amount of money that will reasonably and fairly
compensate [name of each survivor] [separately] for each of the following
elements of damages proved by the evidence to have resulted from the
death of [name of decedent].
1.
The loss of love, affection, companionship, care,

protection, and guidance since the death and in the future.
2.
The pain, grief, sorrow, anguish, stress, shock, and mental

suffering already experienced, and reasonably probable to
be experienced in the future.
3.
The income and services that have already been lost as a

result of the death, and that are reasonably probable to be
lost in the future.
4.
The reasonable expenses of funeral and burial.
5.
The reasonable expenses of necessary medical care and

services for the injury that resulted in the death.
Source: A.R.S. 12-613; City of Tucson v. Wondergem, 105 Ariz. 429,

466 P.2d 383 (1970); Jeffery v. United States, 381 F. Supp. 505 (Ariz.
1974); Salinas v. Kahn, 2 Ariz. App. 181, 407 P.2d 120 (1965).
*Note on Use Depending on the evidence in the case, some of the
elements in paragraphs 1 and 2 may be inapplicable or cumulative, and the
elements listed in paragraphs 3, 4, and 5 may be inapplicable. Customize
the instruction to fit the case.
25
ARKANSAS
Charles Clay
Christopher Bird
Jennifer Harbaugh
Weinberg, Wheeler, Hudgins, Gunn & Dial
Atlanta, Georgia
(404) 876-2700
I.
Economic Damages:
1. Property Damages. Property damages are generally recoverable in
Arkansas.
2. Medical and Other Related Expenses. A party seeking medical
damages has the burden of proving the reasonableness and necessity
for that party's medical expenses. Avery v. Ward, 326 Ark. 829, 833,
934 S.W.2d 516, 519 (1996). However, expert medical testimony is
not essential in every case to prove the reasonableness and necessity of
medical expenses. Volunteer Transp., Inc. v. House, 357 Ark. 95, 104,
162 S.W.3d 456, 461 (2004)
3. Loss of Wages or Wage-Earning Capacity. It is settled law that past
and future earnings or profits lost because of personal injuries are
recoverable as damages. Ishie v. Kelley, 302 Ark. 112, 114, 788
S.W.2d 225, 226 (1990); see also Lopez v. Waldrum Estate, 249 Ark.
558, 460 S.W.2d 61 (1970) (probable loss of earning capacity after
majority is recoverable by a minor and a parent is also entitled to
recover for the minor's earning capacity during minority).
II.
1. Hedonic Damages. The scope of compensation for future pain and
suffering is broad enough to encompass hedonic damages. See RLI
Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991) (the court, in
affirming an award of $8,000,000, referred to the victim's inability to
participate in activities, the change in life-style, the need for future
surgery, limited employment opportunities, and pain and suffering);
Vaccaro Lumber v. Fesperman, 100 Ark. App, 267, 267 S.W.3d 619
(2007) (finding that evidence did not support jury's award of ten times
the amount of special damages when the plaintiff testified that she still
carried on with her normal activities and did everything that she did
before the accident).
2. Disfigurement.
Recoverable damages include scars and
disfigurement. See St. Joseph's Mercy Health Ctr. v. Edwards, 2011
26
Ark. App. 560, ____ S.W.3d ____ (2011) (noting that in determining
whether the amount of damages is so great as to shock the conscience
of this court, the court considers, among other things, scars resulting in
disfigurement)
3. Loss of Use of Limb. The loss of use of a limb is a recoverable
expense. See Perkins Oil Co. v. Fitzgerald, 197 Ark. 14, 121 S.W.2d
877, 886 (1938) ("The recovery, of course, should compensate for pain
and suffering, for humiliation and the anguish on account of the loss of
limbs, the impaired earning capacity, as well as the increased expense
of living occasioned by the injury"); Gaster v. Hicks, 181 Ark. 299, 25
S.W.2d 760, 765 (1930) (stating that the embarrassment and
humiliation from the maimed limb was an element of damages to be
considered by the jury).
4. Punitive Damages. Arkansas Code Annotated 16-55-206 provides
that punitive damages may be awarded in the following circumstances:
In order to recover punitive damages from a defendant, a
plaintiff has the burden of proving that the defendant is liable
for compensatory damages and that either or both of the
following aggravating factors were present and related to the
injury for which compensatory damages were awarded:
(1) The defendant knew or ought to have known, in light of the
surrounding circumstances, that his or her conduct would
naturally and probably result in injury or damage and that he or
she continued the conduct with malice or in reckless disregard
of the consequences, from which malice may be inferred; or
(2) The defendant intentionally pursued a course of conduct for
the purpose of causing injury or damage.
The Plaintiff has the burden of proving these elements by clear and
convincing evidence. See Ark. Code Ann. 16-55-207. Additionally,
punitive damages are capped as provided in Arkansas Code Annotated
16-55-208:
(a) Except as provided in subsection (b) of this section, a
punitive damages award for each plaintiff shall not be more
than the greater of the following:
(1) Two hundred fifty thousand dollars ($250,000); or
(2) Three (3) times the amount of compensatory damages
awarded in the action, not to exceed one million dollars
($1,000,000).
27
(b) Subsection (a) of this section shall not apply when the
finder of fact:
(1) Determines by clear and convincing evidence that, at the
time of the injury, the defendant intentionally pursued a course
of conduct for the purpose of causing injury or damage; and
(2) Determines that the defendant's conduct did, in fact, harm
the plaintiff.
(c) As to the punitive damages limitations established in
subsection (a) of this section, the fixed sums of two hundred
fifty thousand dollars ($250,000) set forth in subdivision (a)(1)
of this section and one million dollars ($1,000,000) set forth in
subdivision (a)(2) of this section shall be adjusted as of January
1, 2006, and at three-year intervals thereafter, in accordance
with the Consumer Price Index rate for the previous year as
determined by the Administrative Office of the Courts.
Arkansas law also provides for a bifurcated proceeding upon request:
(a)(1) In any case in which punitive damages are sought, any
party may request a bifurcated proceeding at least ten (10) days
prior to trial.
(2) If a bifurcated proceeding has been requested by either
party, then:
(A) The finder of fact first shall determine whether
compensatory damages are to be awarded; and
(B) After a compensatory damages award determination, the
finder of fact then shall determine whether and in what amount
punitive damages will be awarded.
(b) Evidence of the financial condition of the defendant and
other evidence relevant only to punitive damages is not
admissible with regard to any compensatory damages
determination.
Ark. Code Ann. 16-55-211.
5. Emotional Distress. A claim of negligent infliction of emotional
distress must be accompanied by some physical injury. Dowty v.
Riggs, 2010 Ark. 465, ___ S.W.3d ___ (2010). It has long been held
'[t]here can be no recovery for fright or mental pain and anguish
caused by negligence, where there is no physical injury.' Id. at *7
(quoting Erwin v. Milligan, 188 Ark. 658, 663, 67 S.W. 592, 594
28
(1934). 'The reason that mental suffering, unaccompanied by

physical injury, is not considered as an element of recoverable
damages is that it is deemed to be too remote, uncertain and difficult of
ascertainment; and the reason that such suffering is allowed as an
element of damages, when accompanied by physical injury, is that the
two are so intimately connected that both must be considered because
of the difficulty in separating them.' Id. (quoting Rock Island &
Pacific Ry. Co. v. Caple, 207 Ark. 52, 58-9, 179 S.W.2d 151, 154
(1944)).
Emotional distress is recoverable even in the absence of physical
impact, however, where it is caused by willful or intentional conduct.
See Erwin, 188 Ark. at 663, 67 S.W.2d at 594. Arkansas law also
provides for the recovery of emotional distress damages based on the
tort of "outrage." To establish a claim for outrage, a plaintiff must
demonstrate the following elements: (1) the actor intended to inflict
emotional distress or knew or should have known that emotional
distress was the likely result of his conduct; (2) the conduct was
extreme and outrageous, beyond all possible bounds of decency, and
was utterly intolerable in a civilized community; (3) the actions of the
defendant were the cause of the plaintiff's distress; and (4) the
emotional distress sustained by the plaintiff was so severe that no
reasonable person could be expected to endure it. Coombs v. J.B. Hunt
Transp., Inc., 2012 Ark. App. 24, ____ S.W.3d ____ (2012).
Importantly, however, discomfort, upset, embarrassment, anxiety, loss
of sleep, and depression do not meet the mental distress element of
the tort of outrage. Id.
III.
Jury Instructions
AMI 2201 Measure of DamagesGeneral Instruction
[If you decide for on the question of liability (against any party (he)(she)
is suing)] [If an interrogatory requires you to assess the damages of ], you
must then fix the amount of money which will reasonably and fairly
compensate [him][her] for any of the following __________ elements of
damage sustained [which you find were proximately caused by the
(negligence)(or)(fault) of (or )]:
[Here insert the elements.]
[First:]
[Second:]
[Third:]
[etc.:]
29
Whether any of these __________ elements of damage has been proved

by the evidence is for you to determine.
AMI 2202 Measure of DamagesThe Nature, Extent, Duration, and
Permanency of the Injury
A. The nature, extent, and duration of any injury.
B. The nature, extent, duration, and permanency of any injury.
C. The nature, extent, and duration of any injury and whether it is
temporary or permanent.
AMI 2203 Measure of DamagesAggravation of Pre-existing
Condition
In this regard you should consider the full extent of any injury sustained,
even though the degree of injury is found by you to have proximately
resulted from the aggravation of a [condition][disease] that already
existed and that predisposed to injury to a greater extent than another
person. [However, you may not award [him][her] damages for any
(pain)(mental anguish)(disability) (__________) which [he][she] would
have suffered even though the accident had not occurred.]
AMI 2204 Measure of DamagesMedical ExpensePast and Future
The reasonable expense of any necessary medical care, treatment and
services received, [including (transportation)(and)(board)(and)(lodging)
expenses necessarily incurred in securing such care, treatment, or services]
[and the present value of such expense reasonably certain to be required in
the future].
AMI 2205 Measure of DamagesPain, Suffering, and Mental
AnguishPast and Future
Any pain and suffering [and mental anguish] experienced in the past [and
reasonably certain to be experienced in the future].
AMI 2206 Measure of DamagesLoss of Earnings or ProfitsPast
and Future
The value of any [earnings][profits][salary][working time] lost [and the
present value of any (earnings)(profits)(salary)(working time) reasonably
certain to be lost in the future].
AMI 2207 Measure of DamagesLoss of Earning Capacity
The present value of any loss of ability to earn in the future.
30
AMI 2208 Measure of DamagesScars, Disfigurement, and Visible

Results of Injury
Any [scars][and][disfigurement][and][visible results
injury].
of
[his][her]
AMI 2209 Measure of DamagesCaretaking ExpensePast and

Future
The reasonable expense of any necessary help in [his][her] home, which
has been required as a result of [his][her] injury [and the present value of
such expense reasonably certain to be required in the future].
AMI 2212 Measure of DamagesParent's Cause of ActionInjury to
Child
[If you decide for __________ (against any party [he][she] is suing) on
[his][her] claim for damages resulting from injuries to __________,] [If
an interrogatory requires you to assess the damages of __________
resulting from injuries to __________,] you must then fix the amount of
money which will fairly and reasonably compensate [him][her] for any of
the following elements of damage which you find were proximately
caused by the [negligence][or][fault] of [or ]:
(a) [The reasonable expense of any necessary medical care, treatment and
services
received
by
__________
(including
[transportation][and][board][and][lodging]
expenses
necessarily
incurred in securing such care, treatment, or services) (and the present
value of such expense reasonably certain to be required in the future
during __________'s minority):]
(b) [The present value of any reasonable expense of medical care and
treatment reasonably certain to be incurred in the future during
__________'s minority:]
(c) [The reasonable value of any (services)(and)(contributions) of
__________ which the parents have lost (and the present value of any
[services][and][contributions] the parents are reasonably certain to lose in
the future [during __________'s minority])].
Whether any of these elements of damage has been proved by the
evidence is for you to determine.
AMI 2213 Measure of DamagesMinor Plaintiff's Cause of Action
[If you decide for __________ on the question of liability (against any
party [he][she] is suing)] [If an interrogatory requires you to assess the
damages of __________], you must then fix the amount of money which
31
will reasonably and fairly compensate [him][her] for any of the following
elements of damage which you find were proximately caused by the
[negligence][or][fault] of [or ]:
(a) [The nature, extent, and duration of any injury;][The nature, extent,
duration, and permanency of any injury;][The nature, extent, and duration
of any injury and whether it is temporary or permanent;]
(b) [In this regard you should consider the full extent of any injury
sustained, even though the degree of injury is found by you to have
resulted from the aggravation of a (condition)(disease) that already existed
and that predisposed __________ to injury to a greater extent than another
person.] [However, you may not award [him][her] damages for any
(pain)(mental anguish)(disability)__________ which[he][she] would
have suffered even though the accident had not occurred;]
(c) [The reasonable expense of any necessary medical care, treatment, and
services received (including [transportation][and][board][and][lodging]
expenses necessarily incurred in securing such care, treatment, or services)
(and the present value of such expense reasonably certain to be required in
the future);] [The present value of the reasonable expense of any necessary
medical care, treatment, and services reasonably certain to be required
after reaching majority (including the present value of
[transportation][and][board][and][lodging] expenses reasonably certain
to be incurred in securing such care, treatment, or services);]
(d) [Any pain and suffering (and mental anguish) experienced in the past
(and reasonably certain to be experienced in the future);]
(e) [The value of any (working time)(earnings)(profits)(salary) lost (and
the present value of any [working time][earnings][profits][salary]
reasonably certain to be lost in the future);] [The present value of any
(working time)(earnings)(profits)(salary) reasonably certain to be lost
after reaching majority;]
(f) [The present value of any loss of ability to earn in the future;]
(g) [Any (scars)(and)(disfigurement)(and)(visible results of [his][her]
injury);]
(h) [The reasonable expense of any necessary help in [his][her] home
which has been required as a result of [his][her] injury (and the present
value of such expense reasonably certain to be required in the future);]
[The present value of the reasonable expense of any necessary help in
[his][her] home reasonably certain to be required as a result of [his][her]
injury after reaching majority;]
(i) [(His)(Her) inability to attend school;]
32
(j) [If property damage is involved insert here appropriate clause from
AMI 2227 through 2229.]
Whether any of these elements of damage has been proved by the
AMI 2218 Punitive Damages
In addition to compensatory damages for any actual loss that __________
may have sustained, [he][she] asks for punitive damages from
__________. Punitive damages may be imposed to punish a wrongdoer
and to deter the wrongdoer and others from similar conduct. In order to
recover punitive damages from __________, __________ has the burden
of proving [by clear and convincing evidence][either, first]:
[That __________ knew or ought to have known, in the light of the
surrounding circumstances, that [his][her][its] conduct would naturally
and probably result in (injury)(damage) and that [he][she][it] continued
such conduct (with malice or) in reckless disregard of the consequences
from which malice may be inferred]
[Or, second]
[That __________ intentionally pursued a course of conduct for the
purpose of causing (injury)(damage)]
[Or both].
[In arriving at the amount of punitive damages you may consider the
financial condition of __________, as shown by the evidence.]
[Clear and convincing evidence is proof that enables you without
hesitation to reach a firm conviction that the allegation is true.]
You are not required to assess punitive damages against __________ but
you may do so if justified by the evidence.
[You may consider an award of punitive damages only if you found that
__________ is entitled to recover compensatory damages.]
In case of injury to a minor child, there are two separate and distinct
causes of action: one in favor of the infant for his injuries and one in favor of the
parent for losses suffered by the parent. National Bank of Commerce v. Quirk,
323 Ark. 769, 792, 918 S.W.2d 138, 151 (1996). "The minor has a claim for his
injuries, which includes damages for pain and suffering, personal disfigurement,
future medical expenses reasonably certain to be required after majority and
33
probable loss of earnings and earning capacity after majority." Broadway v.

Adidas America, Inc., No. 3:07cv000149 SWW, 2008 WL 2705566 (E.D. Ark.
July 10, 2008). "The minor's damages do not include medical expenses incurred
during his minority." Id. Rather, the parents own the right to recover for medical
expenses incurred during an unemancipated child's minority. See Nat'l Bank of
Commerce v. Quirk, 323 Ark. 769, 792-93, 918 S.W.2d 138, 151 (1996)
(affirming exclusion of medical expenses where parents of child did not become
parties to the suit until after the statute of limitations for actions based on medical
injury ran); see also Parrott v. Mallett, 262 Ark. 525, 528-29, 558 S.W.2d 152,
154 (1977) ("We have not specifically stated that recovery cannot be had in an
action on behalf of a minor child for medical expenses incurred and to be incurred
during his minority, where he has not paid them and is not liable for them. By an
overwhelming weight of authority, it is held that no award for such damages may
be made in an action brought on behalf of the child, where the child is
unemancipated and not responsible for his own debts and has not paid the bill for
such expenses). A parent is also entitled to recover for the value of the minor's
services and loss of such a minor's earning capacity during minority and for
expenses incurred and to be incurred by the parent on account of an injury to the
child. Lopez v. Waldrum Estate, 249 Ark. 558, 563, 460 S.W.2d 61, 64-65
(1970).
Under Arkansas law, when a person's death is caused by the negligence of
another, two causes of action arise: first, there is a cause of action for the estate
under the survival statute, and, second, there is a cause of action for the statutory
beneficiaries under the wrongful death statute. Ark. Code Ann. 16-62-201, 1662-102. Under Arkansas Wrongful Death Statute, statutory beneficiaries may
recover for loss of the services and companionship of the decedent and any mental
anguish (including grief normally associated with loss of a loved one) resulting
from his/her death. The Administrator of the Estate may also recover damages for
the decedents loss of life, funeral expenses, pain and suffering and lost future
earnings.
I.
Economic Damages:
1. Property Damages. Property damages are recoverable. See Arkansas
Code Ann. 16-62-101.
2. Funeral, Medical and Other Related Expenses. Arkansas' Survival
Statute allows the administrator of the estate of the deceased to
recover, on behalf of the estate, expenses suffered by the decedent
prior to his death such as medical expenses, lost earnings and
conscious pain and suffering. The administrator may also recover for
funeral expenses. Meredith v. Buchman, 101 F. Supp. 2d 764, 766
(E.D. Ark. 2000).
34
3. Life Expectancy. Arkansas courts consider age and life expectancy of

the decedent in determining lost earning capacity. See Lowe v. U.S.,
662 F. Supp. 1089 (W.D. Ark. 1987). Future damages must be
reduced to present value by the jury. The jury will consider the fact
that money recovered and invested or saved will earn interest to pay
for future losses. The jury must therefore reduce any award of
damages to compensate for the reasonable earning power of money.
AMI 2220; see also Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291
(1959).
II.
1. Loss of Society and Companionship. Pecuniary injuries, including
mental anguish associated with the loss of a loved one, are
recoverable. Ark. Code Ann. 16-62-102(f)(1). Accordingly, mental
anguish suffered by the surviving parents of a minor child, including
grief and despair associated with the loss, is a compensable injury.
See, e.g. Maryland Cas. Co. v. Rowe, 256 Ark. 221, 224, 506 S.W.2d
569, 572 (1974). Loss of probable future contributions are also
recoverable. See id.
2. Pain and Suffering. Pain and Suffering experienced by the Decedent
between the time of injury and his/her subsequent demise is
recoverable. See New Prospect Drilling Co. v. First Commercial Trust,
N.A., 332 Ark. 466, 966 S.W.2d 233 (1998); Meredith v. Buchman,
101 F. Supp. 2d 764 (E.D. Ark. 2000).
3. Punitive Damages. See punitive damages discussion above.
4. Loss of Enjoyment of Life. In addition to all other elements of
damages provided by law, a decedent's estate may recover for the
decedent's loss of life as an independent element of damages. Ark.
Code Ann. 16-61-101(b). Loss-of-life damages seek to compensate a
decedent for the loss of the value that the decedent would have placed
on his or her own life. Durham v. Marberry, 356 Ark. 481, 492, 156
S.W.3d 242, 248 (2004).
5. Emotional Distress. Arkansas's wrongful-death statute allows for
statutory beneficiaries, who have suffered no physical injury as a result
of a tortfeasor's negligence, to recover for mental anguish. See Ark.
Code Ann. 16-62-102(f)(2). The proximity of relationship between
the deceased and the survivors is the most significant factor in
determining whether recovery is allowable. Distant relatives generally
have no more than normal grief and will not be allowed to recover
without establishing something more. Martin v. Rieger, 289 Ark. 292,
711 S.W.2d 776 (1986). Arkansas courts consider the following
factors in evaluating the relationship between the decedent and
35
survivors: (1) The duration and intimacy of the relationship and the
ties of affection between decedent and survivor; (2) Frequency of
association and communication between an adult decedent and an
adult survivor; (3) The attitude of the decedent toward the survivor,
and of the survivor toward the decedent; (4) The duration and intensity
of the sorrow and grief; (5) Maturity or immaturity of survivor; (6)
The violence and suddenness of the death; (7) Sleeplessness or
troubled sleep over an extended period; (8) Obvious extreme or
unusual nervous reaction to the death; (9) Crying spells over an
extended period of time; (10) Adverse effect on survivor's work or
school; (11) Change of personality of the survivor; (12) Loss of weight
by survivor and other physical symptoms; and (13) Age and life
expectancy of the decedent. Id.
III.
Jury Instruction:
AMI 2217 Measure of DamagesWrongful DeathUnmarried
Minor
As administrator of the estate of ______, the deceased minor, _____
represents the estate of the deceased and also __________.
[If you decide for the administrator on the question of liability (against any
party [he][she] is suing)] [If an interrogatory requires you to assess the
damages of the administrator], you should determine [from the evidence]
the present value of any [services][and][contributions] that would have
been received by the parent(s)[during the child's minority], less providing
for the child. You should then fix an amount that would fairly and
reasonably compensate the parents for the net value of such
[services][and][contributions].
[In the case of the death of a child too young to be capable of earning
anything or rendering services of any value, the value of its probable
future services to the parent during its minority is necessarily a matter of
conjecture, and may be determined by you without the testimony of
witnesses.]
[You should also determine an amount from the evidence that would
reasonably compensate __________ for any mental anguish
(he)(she)(they)(has)(have) endured as a result of the death of the minor
(and reasonably probable to be endured in the future). Mental anguish
includes the mental suffering resulting from emotions, such as grief and
despair, associated with the loss of a loved one.]
[One][Certain] element(s) of damage may be awarded only to the estate
of __________. [This is][These are][decedent's loss of life][the
reasonable value of funeral expenses][and][conscious pain and suffering
36
(and mental anguish) of the deceased prior to death][and][the reasonable

value of medical expenses attributable to the fatal injury][and][property
damage][and][the value of any (earnings) (profits) (salary) (working
time) lost by the deceased prior to death][and][any (scars)
(disfigurement) (and) (visible results of the injury) sustained by the
deceased prior to death.]
Whether any of the damages sued for have been proved by the evidence is
for you to determine.
AMI 2219 Purpose of Mortality Tables
In the event that you find that is entitled to damages arising in the future
because of [injuries][or][future (medical) (caretaking) expenses][or][loss
of earnings][or][loss of earning capacity][or][loss of contributions], you
must determine the amount of these damages.
If these damages are of a continuing nature, you may consider how long
they will continue. [If they are permanent in nature, then in computing
these damages you may consider how long is likely to live.]
[With respect to loss of future (earnings)(earning capacity)(contributions)
you may consider that some persons work all their lives and others do not
and that a person's earnings may remain the same or may increase or
decrease in the future.]
Mortality tables are evidence of an average life expectancy of a person
who has reached a certain age, but they are not conclusive. They may be
considered by you in connection with other evidence relating to the
probable life expectancy of , including evidence of [his][her] occupation,
health, habits, and other activities, bearing in mind that some persons live
longer than the average and some persons less than the average.
AMI 2220 Present ValueDefinition
I have used the expression present value in these instructions with
respect to certain elements of damage which you may find that
__________ will sustain in the future. This simply means that if you find
that __________ is entitled to recover any elements of damage which
require you to determine their present value, you must take into
consideration the fact that money recovered will earn interest, if invested,
until the time in the future when these losses will actually occur.
Therefore, you must reduce any award of such damages to compensate for
the reasonable earning power of money.
37
CALIFORNIA
Merton A. Howard
Shannon M. Nessier
Hanson Bridgett LLC
(415) 777-3200
Generally, Cal. Civ. Proc. Code (CCP) 376 identifies the parental right
to maintain an action for injuries to their child. Cal. Civil Code 1431.2 defines
which damages are considered economic and which are considered noneconomic.
I.
Economic Damages:
1. Medical Expenses: Past medical expenses reasonably incurred for
treatment of injuries can be recovered by both the minor child and the
parents. White v. Moreno Valley Unified School District (1986) 181
Cal.App.3d 1024, 1030. Future medical expenses may also be
recovered, including medical monitoring costs, but there must be a
reasonable degree of certainty for the need for such monitoring. Potter
v. Firestone Tire and Rubber Company (1993) 6 Cal.4th 965, 1004.
Keep in mind that recovery for these expenses, to the minor or
otherwise, is still subject to reduction under principles of comparative
fault under California law. Hasson v. Ford Motor Company (1977) 19
Cal.3d 530, 551.
2. Earnings & Earning Capacity: A minor or his parents may recover
lost earnings during his minority. They may both also recover for his
lost future earnings and the impairment to his earning capacity, with
the parents' rights to such future awards bounded by the injured child's
reaching the age of majority. Heiner v. Kmart Corp. (2000) 84
Cal.App.4th 335, 348; Cal. Family Code 7500.
3. Service to Parents: Parents may also recover for any services the
minor would have contributed to the family unit. Cal. Family Code
7500; Baxter v. Superior Court (1977) 19 Cal.3d 461, 462.
4. Property Damages: Loss to real or personal property is recoverable.
II.
Non-Economic Damages:
1. Pain, Suffering, and Emotional Distress: Mental suffering is a
compensable damage and includes nervousness, grief, anxiety, worry,
shock, humiliation and indignity as well as physical pain. Crisci v.
The Security Insurance Co. of New Haven, Connecticut (1967) 66
38
Cal.2d 425, 433; Duarte v. Zachariah (1994) 22 Cal.App.4th 1652,

16641665. Note that under Cal. Civil Code 3333.2, there is a cap
of $250,000.00 for pain and suffering damages in medical professional
negligence cases brought against a health care provider. These
damages may only be recovered by the injured person and not a
parent.
2. Disfigurement: Usually awarded with humiliation and
embarrassment, as a pain and suffering damage, disfigurement could
be considered a separate compensable detriment even if it does not
give rise to those injuries.
3. Loss of enjoyment of life/Hedonic Damages: A person temporarily
or permanently disabled by bodily injury and the mental consequences
of such disability, may seek damages for the loss of the capacity to
enjoy a normal life. Huff v. Tracy (1976) 57 Cal.App.3d 939, 943.
However, most courts view these damages as properly a component of
the damages for pain and suffering, and cannot be separately instructed
on if to do so would invite duplication of awards. Loth v. Truck-AWay Corp. (1998) 60 Cal.App.4th 757, 766.
4. Punitive Damages: Under California Civil Code 3294, an injured
party may recovery punitive damages when the conduct causing his
harm involves oppression, fraud, or malice.
III.
Jury Instructions
3903A. Medical ExpensesPast and Future
To recover damages for past medical expenses, plaintiff must prove
the reasonable cost of reasonably necessary medical care that
[he/she] has received.
To recover damages for future medical expenses, plaintiff must prove the
reasonable cost of reasonably necessary medical care that [he/she] is
reasonably certain to need in the future.
3903C. Past and Future Lost Earnings
To recover damages for past lost earnings, plaintiff must prove the amount
of income/earnings/salary/wages that [he/she] has lost to date.
To recover damages for future lost earnings, plaintiff must prove the
amount of income/earnings/salary/wages [he/she] will be reasonably
certain to lose in the future as a result of the injury.
39
3903E. Loss of Ability to Provide Household Services

To recover damages for the loss of the ability to provide household
services, plaintiff must prove the reasonable value of the services [he/she]
would have been reasonably certain to provide to [his/her] household if
the injury had not occurred.
3903D. Lost Earning Capacity
To recover damages for the loss of the ability to earn money as a result of
the injury, plaintiff must prove the reasonable value of that loss to
[him/her]. It is not necessary that [he/she] have a work history.
Noneconomic Damages Instructions:
3903A. Physical Pain, Mental Suffering, and Emotional Distress
No fixed standard exists for deciding the amount of these
noneconomic damages. You must use your judgment to decide a
reasonable amount based on the evidence and your common sense.
To recover for future [physical pain/ mental suffering/ loss of
enjoyment of life/ disfigurement/ physical impairment/
inconvenience/ grief/ anxiety/ humiliation/ emotional distress],
plaintiff must prove that [he/she] is reasonably certain to suffer
that harm.
For future [insert item of pain and suffering], determine the amount
in current dollars paid at the time of judgment that will compensate
plaintiff for future [insert item of pain and suffering]. This amount
of noneconomic damages should not be further reduced to present
cash value because that reduction should only be performed with
respect to economic damages.
3945. Punitive Damages Instructions (see 3946-3949 for bifurcated
and individual and entity instructions)
If you decide that defendants conduct caused plaintiff harm, you must
decide whether that conduct justifies an award of punitive damages. The
purposes of punitive damages are to punish a wrongdoer for the conduct
that harmed the plaintiff and to discourage similar conduct in the future.
You may award punitive damages against defendant only if plaintiff
proves that defendant engaged in that conduct with malice, oppression, or
fraud. To do this, plaintiff must prove one of the following by clear and
convincing evidence:
(1)That the conduct constituting malice, oppression, or fraud was
committed by one or more officers, directors, or managing agents of
40
defendant, who acted on behalf of defendant; or

(2)That the conduct constituting malice, oppression, or fraud was
authorized by one or more officers, directors, or managing agents of
defendant; or
(3)That one or more officers, directors, or managing agents of defendant
knew of the conduct constituting malice, oppression, or fraud and
adopted or approved that conduct after it occurred.
Malice means that defendant acted with intent to cause injury or that
defendants conduct was despicable and was done with a willful and
knowing disregard of the rights or safety of another. A person acts with
knowing disregard when he or she is aware of the probable dangerous
consequences of his or her conduct and deliberately fails to avoid those
consequences.
Oppression means that defendants conduct was despicable and
subjected plaintiff to cruel and unjust hardship in knowing disregard of
[his/her] rights.
Despicable conduct is conduct that is so vile, base, or contemptible
that it would be looked down on and despised by reasonable people.
Fraud means that defendant intentionally misrepresented or
concealed a material fact and did so intending to harm plaintiff.
An employee is a managing agent if he or she exercises substantial
independent authority and judgment in his or her corporate decision
making such that his or her decisions ultimately determine corporate
policy.
There is no fixed formula for determining the amount of punitive
damages, and you are not required to award any punitive damages. If you
decide to award punitive damages, you should consider all of the
following factors in determining the amount:
(a) How reprehensible was defendants conduct? In deciding how
reprehensible defendants conduct was, you may consider, among other
factors:
1.
2.
3.
Whether the conduct caused physical harm;

Whether defendant disregarded the health or safety of
others;
Whether plaintiff was financially weak or vulnerable and
defendant knew plaintiff was financially weak or
vulnerable and took advantage of [him/her/it];
41
4.
5.
Whether defendants conduct involved a pattern or

practice; and
Whether defendant acted with trickery or deceit.
(b) Is there a reasonable relationship between the amount of punitive

damages and plaintiffs harm or between the amount of punitive damages
and potential harm to plaintiff that defendant knew was likely to occur
because of [his/her/its] conduct?
(c) In view of defendants financial condition, what amount is necessary
to punish [him/her/it] and discourage future wrongful conduct? You may
not increase the punitive award above an amount that is otherwise
appropriate merely because defendant has substantial financial resources.
Any award you impose may not exceed defendants ability to pay.
Punitive damages may not be used to punish defendant for the impact of
[his/her/its] alleged misconduct on persons other than plaintiff.
The right to recover past medical expenses belongs to both the minor child
and the parents. White v. Moreno Valley Unified School District (1986) 181
Cal.App.3d 1024, 1030. The only limitation is that the funds cannot be recovered
by the parents if they were paid from the minor's own funds. Future medicals,
however, belong to the child in all cases, and to the parents in only some
instances. See Laugher v. Byrne (1993) 18 Cal.App.4th 904, 909.
The right to pursue a Wrongful Death action is detailed in CCP 377.60,
and the damages recoverable in CCP 377.61. Note that on behalf of the
deceased minor's estate, several items of damages survive the minor's death, and
can be recovered not by the parents as individuals, but possibly by a parent acting
on behalf of the minor's estate (e.g., punitive damages otherwise unrecoverable in
a wrongful death action, under a survival statute are recoverable if proven).
I.
Economic Damages:
1. Financial Support: Parents can recover the value of the financial
support, if any, that the minor would have contributed to the family.
Little v. Yanagisawa (1924) 70 Cal. 303, 307.
2. Gifts or benefits: Parents may recover the loss of gifts or benefits that
they could have expected to receive from the minor. Sails v. General
Electric Co. (1968) 264 Cal.App.2d 82, 87.
42
3. Funeral and burial expenses: Parents may recover all expenditures

related to burial of and/or memorial services for the minor. Vander v.
Lin (1983) 146 Cal.App.3d 358, 364.
4. Household Services: Parents may also recover the reasonable value of
household services that the minor would have provided.
II.
1. Loss of Companionship: A parent is entitled to damages for loss of
love, companionship, comfort, affection, society, solace, moral
support, and protection that the child could have been expected to
give. Tyson v. Rome (1948) 88 Cal.2d 752, 758. Note however, that
this is not to include the grief, sorrow or suffering of the surviving
parents. Krause v. Graham (1977) 19 Cal.3d 59, 70.
2. Punitive Damages: While Punitive damages are not permitted in
wrongful death actions, Cortez v. Macias (1980) 110 Cal.App.3d 640,
657, punitive damages may awardable to the decedents estate in an
action by the estate representative based on the cause of action the
decedent would have had if he or she had survived. Roof v. Simpson
(2001) 86 Cal.App.4th 573, 616.
III.
Jury Instructions
3922 Wrongful Death (Parents' Recovery for Death of a Minor Child)
If you decide that plaintiff has proved [his/her] claim against defendant
for the death of the minor, you also must decide how much money will
reasonably compensate plaintiff for the death of the minor. This
compensation is called damages.
Plaintiff does not have to prove the exact amount of these damages.
However, you must not speculate or guess in awarding damages.
The damages claimed by Plaintiff fall into two categories called
economic damages and noneconomic damages. You will be asked to state
the two categories of damages separately on the verdict form.
Plaintiff claims the following economic damages:
(1)
The value of the financial support, if any, that the minor
would have contributed to the family during either the life
expectancy that the minor had before [his/her] death or the life
expectancy of Plaintiff, whichever is shorter;
43
(2)
The loss of gifts or benefits that Plaintiff could have
expected to receive from the minor;
(3)
Funeral and burial expenses; and
(4)
The reasonable value of household services that the minor
would have provided.
Your award of any future economic damages must be reduced to present
cash value.
Plaintiff also claims the following noneconomic damages: The loss of the
minors love, companionship, comfort, care, assistance, protection,
affection, society, and moral support.
No fixed standard exists for deciding the amount of noneconomic
damages. You must use your judgment to decide a reasonable amount
based on the evidence and your common sense. For these noneconomic
damages, determine the amount in current dollars paid at the time of
judgment that will compensate Plaintiff for those damages. This amount
of noneconomic damages should not be further reduced to present cash
value because that reduction should only be performed with respect to
future economic damages.
Do not include in your award any compensation for the following:
(1)
Plaintiffs grief, sorrow, or mental anguish; or
(2)
The minors pain and suffering.
In computing these damages, you should deduct the present cash value of
the probable costs of the minors support and education.
In deciding a persons life expectancy, consider, among other factors, that
persons health, habits, activities, lifestyle, and occupation. Life
expectancy tables are evidence of a persons life expectancy but are not
conclusive. In computing these damages, consider the losses suffered by
all plaintiffs and return a verdict of a single amount for all plaintiffs. I will
divide the amount among/between the plaintiffs.
44
COLORADO
John W. Grund
Joan S. Allgaier
Grund Dagner, P.C.
Denver, Colorado
(303) 830-7770
I.
Economic Damages:
1. Property Damages: Property damages are recoverable.
2. Medical Expenses: Expenses incurred for the minors medical
treatment and paid for by the parent are recoverable. Natl Fuel Co. v.
Green, 115 P. 709 (Colo. 1911). The parent may recover for those
expenses, or the child may recover where the parent has released that
right to the child. Wales v. Howard, 433 P.2d 493 (Colo. 1967).
3. Lost Earnings During the Age of Minority: Parents have a right of
action against the defendant for diminution in the earning capacity of
their minor child during minority because of physical injury. Pawnee
Farmers Elevator Co. v. Powell, 227 P. 836 (Colo. 1924). The child
may recover lost earnings during the age of minority where the parent
has relinquished that right to the child. Wales v. Howard, 433 P.2d
493 (Colo. 1967).
4. Lost Future Earnings and Diminution of Earning Capacity: Even
though it is not possible to provide evidence of the value of the future
lost wages of a minor, the decision of whether to award such damages
and the amount thereof is left to the sound judgment and experience of
the jury. Stewart v. Rice, 25 P.3d 1233, 1236 (Colo.App. 2000), revd
on other grounds, 47 P.3d 316 (Colo. 2002).
5. Other Expenses: The future pecuniary loss on account of added
expenses for an injured minor child is recoverable. See Colorado Util.
Corp. v. Casady, 300 P. 601 (Colo. 1931).
6. Prejudgment Interest: Pursuant to 13-21-101, C.R.S., interest
accumulates on an award at the rate of 9% per year and accrues from
the date the action accrues until the date suit is filed. During this
period, it is simple interest. From the date of filing suit until the date
of judgment and, generally, post-judgment, that same rate is
compounded annually.
45
II.
Noneconomic Damages
1. Noneconomic Loss or Injury: Defined as nonpecuniary harm
including pain and suffering, inconvenience, emotional stress, and
impairment of the quality of life. 13-21-102.5(2)(b), C.R.S. Minor
plaintiffs are entitled to recover for pain and suffering, mental anguish,
and emotional distress. See Colorado Util. Corp. v. Casady, 300 P.
601 (Colo. 1931); Natl Fuel Co. v. Green, 115 P. 709 (Colo. 1911).
2. No Recovery for Loss of Consortium: Parents may not recover
damages for loss of consortium arising solely from injury to their
child. Elgin v. Bartlett, 994 P.2d 411 (Colo. 1999).
3. Damages Cap: Pursuant to 13-21-102.5, C.R.S, noneconomic
damages are capped at $250,000 but this amount is adjusted for
inflation. As of January 2012, the inflation-adjusted cap is $366,250;
under the statute, however, if proved by clear and convincing
evidence, the trial court may increase that figure up to the currently
inflation-adjusted cap of $732,500. 13-21-203.7(1), C.R.S. In cases
involving more than one defendant, the cap on noneconomic damages
is applicable to the amount of noneconomic damages that a plaintiff
can recover from each defendant, rather than to the total amount of
noneconomic damages awarded. General Elec. Co. v. Niemet, 866
P.2d 1361 (Colo. 1994).
4. Damages for Impairment and Disfigurement: Damages for
impairment and disfigurement are separate from noneconomic
damages and are not capped. See Pringle v. Valdez, 171 P.3d 624
(Colo. 2007). Minor plaintiffs may recover damages for impairment.
See Colorado Util. Corp. v. Casady, 300 P. 601 (Colo. 1931).
5. Punitive Damages: Punitive damages may be imposed where the
wrongful conduct is attended by circumstances of fraud, malice, or
willful and wanton conduct. Pursuant to 13-21-102(1.5)(a), C.R.S.,
a request for punitive damages may not be made in the complaint. It
may be asserted by amendment to the pleadings only after the
substantial completion of discovery and only after the plaintiff
establishes prima facie proof of a triable issue.1 Punitive damages
must be proven beyond a reasonable doubt. 13-25-127(2), C.R.S.
The law allows only a 1:1 ratio for punitive to compensatory damages,
unless the judge finds the existence of certain factors, in which case
the court may increase the award to not more than a 3:1 ratio. See
Coors v. Security of Denver Life Ins. Co., 112 P.3d 59 (Colo. 2005).
This statute applies to all personal-injury actions except for those involving healthcare
malpractice, though a plaintiff may not initially seek punitive damages in those cases either, under
13-64-302.5, C.R.S.
46
Prejudgment interest is not available on any award of punitive

damages. Seaward Constr. Co. v. Bradley, 817 P.2d 971 (Colo. 1991).
III.

a.
Personal Injuries Minor Child Colorado Jury Instructions 6:2
Plaintiff, (name), has the burden of proving, by a preponderance of the

evidence, the nature and extent of (his) (her) damages. If you find in favor
of the plaintiff, you must determine the total dollar amount of plaintiff's
damages, if any, that were caused by the (insert appropriate description,
e.g., "negligence") of the defendant(s), (name[s]), (and) (,) (the [insert
appropriate description, e.g., "negligence"], if any, of the plaintiff(s),
[name(s)]), (and) (the [insert appropriate description, e.g., "negligence"], if
any, of any designated nonparties).
In determining such damages, you shall consider the following:
1. Any noneconomic losses or injuries which plaintiff has had to
the present time or which plaintiff will probably have in the future,
including: physical and mental pain and suffering, inconvenience,
emotional stress, impairment of the quality of life, and (insert any other
recoverable nonecomonic losses for which there is sufficient evidence).
(In considering damages in this category, you shall not include actual
damages for [physical impairment] [or] [disfigurement], because these
damages, if any, are to be included in a separate category.)
2. Any economic losses or injuries which plaintiff will probably
have in the future after (he) (she) reaches the age of 18 (or is otherwise
emancipated), including: loss or damage to (his) (her) ability to earn
money in the future, any (reasonable and necessary) medical, hospital, and
other expenses the plaintiff, as a minor, has paid for (or for which [he]
[she] is personally responsible), and (insert any other recoverable
economic losses of which there is sufficient evidence). (In considering
damages in this category, you shall not include actual damages for
[physical impairment] [or] [disfigurement], since these damages, if any,
are to be included in a separate category.)
3. Any [physical impairment] [or] [disfigurement]. In considering
damages in this category, you shall not include damages again for losses
or injuries already determined under either numbered paragraph 1 or 2
above.)
(In determining the plaintiff's, (name of minor child), damages you should
not include [any future expenses for (insert appropriate description)] [or]
[any future (loss of earnings) (impairment of earning capacity)] which
plaintiff (name of minor child) may have between now and the time when
(he) (she) reaches the age of 18 [or is emancipated] because these
47
damages, if any, are recoverable by the plaintiff's parents.) (For the same
reason, you should not include in plaintiff's, (name of minor child),
damages any damages for any loss of past earnings.)
b. Personal Injuries Minor Child Measure of Parents Damages
Colorado Jury Instructions 6:3
Plaintiff(s), (name[s]), (has) (have) the burden of proving, by a
preponderance of the evidence, the nature and extent of (his) (her) (their)
damages. If you find in favor of the plaintiff(s), (name of parent(s), on
(his) (her) (their) claim of damages for injuries caused to (his) (her) (their)
child, (name of minor child), by the defendant(s), (name[s] of
defendant[s]), you must determine the total dollar amount of
plaintiff('s)(s'), (name(s) of parent(s)), damages, if any, that were caused
by the (insert appropriate description, e.g., "negligence") of the
defendant(s), (name(s)), (and) (,) (the [insert appropriate description, e.g.,
"negligence"], if any, of the plaintiff(s), (name[s]), (and) (the [insert
appropriate description, e.g., "negligence"], if any, of any designated
nonparties).
1. Any (reasonable and necessary) expenses the plaintiff(s) (has)
(have) had on (name of minor child)'s behalf to the present time and any
expenses the plaintiff(s), (name(s) of parent(s)), will have in the future
between now and the time (name of minor child) reaches the age of 18 (or
is emancipated) for (insert appropriate description, using separately
lettered subparagraphs for various categories, if necessary, e.g., "medical,
hospital, and other similar services," etc.);
2. Any loss of past earnings (name of minor child) may have had to
the present time;
3. Any future (loss of earnings) (damage to [name of minor child's]
ability to earn money in the future) will probably have between now and
the time when (name of minor child) reaches the age of 18 (or is
emancipated);
4. Any loss of past household and similar services or any loss of
such services in the future (name of minor child) would have provided to
the plaintiff(s), (name(s) of parent(s)) until (name of minor child) reaches
the age of 18 (or is emancipated);
5. (Insert any other appropriate elements of damages, e.g., any
unusual services the plaintiff may be required to render the child because
of [his] [her] injuries).
48
c. Personal Injuries Minor Child Loss of Earnings Distinction

Between Parents and Childs 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 the
child.
Parents may pursue their own claims to recover for medical expenses
incurred for an injured minor child, or a minor child has the right to recover if the
parent has relinquished that right to the child. The mere fact that the parent brings
an action as the next friend of the minor is not necessarily evidence that the parent
released that right. Wales v. Howard, 433 P.2d 493 (Colo. 1967).
In Elgin v. Bartlett, 994 P.2d 411 (Colo. 1999), the court held that a
parents claim for expenses is derivative and turns upon the right of the injured
person to recover, but that the statute tolling the limitations for a minors action
did not apply to the parents action.
I.
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 ( 1380-108(2), C.R.S.).
1. Economic Damages: Parents may recover the net pecuniary loss for
the death of a minor child, in addition to funeral expenses. Net
pecuniary loss includes the parents loss of the services and earnings
that they could have reasonably expected from their child during his or
her minority, but for the untimely death, less their expenditures for
maintenance, in addition to the loss of services and support that they
could reasonably have anticipated when their child was an adult and
they were growing older. See Herbertson v. Russell, 371 P.2d 422
(Colo. 1962); McEntyre v. Jones, 263 P.2d 313 (Colo. 1953).
2. Noneconomic Damages are Capped: The Wrongful Death Act
allows a maximum recovery of up to $250,000 for noneconomic
damages (e.g., grief), 13-21-203(1), C.R.S., although that amount is
adjusted for inflation. As of January 2012, the inflation-adjusted cap
is $341,250. See 13-21-203.7, C.R.S. Importantly, that $250,000
cap applies on a collective and not an individual basis, and is the most
that may be recovered for any wrongful death. Lanahan v. Chi Psi
Frat, , 175 P.3d 97 (Colo. 2008).
49
The cap on noneconomic damages does not apply if the conduct

causing the death is determined to have been a felonious killing.
15-11-803(1)(b), C.R.S. A plaintiff is not required to show that a
conviction was or could have been obtained and, instead, may show
that the conduct in question constitutes the statutory elements of a
"felonious killing." Estate of Wright v. United Servs. Auto. Ass'n, 53
P.3d 683 (Colo.App. 2001), cert. denied (2002).
In lieu of establishing noneconomic damages, those persons entitled to
sue may elect in writing to seek a solatium of $50,000. 13-21203.5, C.R.S. Again, this figure in the statute has been adjusted for
inflation, and as of January 2012, the number is $68,500. A party that
seeks only solatium recovery and proves any liability on the
defendants part, recovers the entire amount for solatium, because this
recovery is exempt from any reduction by virtue of the comparativenegligence statute, B.G.s, Inc. v. Gross, 23 P.3d 691 (Colo. 2001), or
any liability allocable to a nonparty tortfeasor, Smith v. Vincent, 77
P.3d 927 (Colo. 2003).
3. Punitive Damages. Pursuant to 13-21-203, C.R.S., an award of
punitive damages may not be sought in the complaint. The request to
amend the complaint must wait until at least 60 days following the
exchange of initial disclosures, and there must be prima facie proof of
a triable issue. Punitive damages may be imposed at 1:1 ratio to
actual damages, though the court may increase the award to not more
than a 3:1 ratio. The court may reduce the award if the deterrent effect
has been accomplished, the subject conduct has ceased, or the purpose
of such damages has otherwise been served. The award may be
increased if the subject conduct has continued or the defendant acted
in a willful and wanton manner while the action was pending.
II.
Model Jury Instruction

a. Damages for Wrongful Death. Colorado Jury Instructions 10:3
Plaintiff, (name), has the burden of proving, by a preponderance of the
evidence, the nature and extent of (his) (her) damages (and the damages of
those the plaintiff represents). If you find in favor of the plaintiff, you
must determine the total dollar amount of the damages, if any, of plaintiff
(and those that plaintiff represents), that were caused by the (insert
appropriate description, e.g., "negligence") of the defendant(s), (name[s]),
(and) (,) (the [insert appropriate description, e.g., "negligence"], if any, of
[name of decedent], (and) (the [insert appropriate description, e.g.,
"negligence"], if any, of any designated nonparties).
50
1.
Any noneconomic losses, including grief, loss of
companionship, impairment of the quality of life, inconvenience, pain and
suffering, and emotional stress the plaintiff [and those the plaintiff
represents] [has] [have] had to the present, and any grief, loss of
companionship, impairment of the quality of life, inconvenience, pain and
suffering, and emotional stress the plaintiff [and those the plaintiff
represents] will have in the future;) (and)
2. Any economic losses, including reasonable funeral, burial,
internment, or cremation expenses, and any net financial loss which the
plaintiff has [and those the plaintiff represents have] had because of the
death of [name of decedent]. The net financial loss is the same as the
financial benefit the plaintiff [and those the plaintiff represents] might
reasonably have expected to receive from [name of decedent] had [he]
[she] lived.)
In determining these damages, if any, you should consider the age,
health, and life expectancy of (name of decedent), the age, health, and life
expectancy of the plaintiff (and those the plaintiff represents), the (name
of decedent's) industriousness, ability to earn money, willingness to assist
the plaintiff (and those the plaintiff represents), and the nature of the
relationship between (name of decedent) and the plaintiff (and between
[name of decedent] and those the plaintiff represents).
b. Wrongful Death of Child Determining Pecuniary Loss. Colorado
Jury Instructions 10:4.
The net economic loss, if any, incurred by the plaintiff(s) as the parent(s)
of (name of child) would be the reasonable value of any services (name of
child) would have provided and earnings (he) (she) might have made
while a minor together with any support (he) (she) might reasonably have
been expected to provide the plaintiff(s) after (he) (she) became an adult,
less the expenses the plaintiff(s) might reasonably have incurred in
maintaining (name of child) and providing (him) (her) an education.
In determining the net economic loss, if any, you should consider (name of
child)'s as well as the plaintiff('s)(s') ages, health, conditions of life,
probable duration of their lives and their abilities to earn money. You
should also consider (name of child)'s work habits and (his) (her)
likelihood to aid and assist the plaintiff(s), taking into account not only the
legal relationship between (name of child) and the plaintiff(s) but also the
actual relationship between them as shown by acts of service or financial
assistance, if any, provided by (name of child) to the plaintiff(s).
51
CONNECTICUT
Jonathan Ciottone
Angelina Ioannou
Cheryl A. Possenti
Goldberg Segalla LLP
Hartford, Connecticut
(860) 760-3300
A minor child may only bring a civil action by a guardian or next friend
Orsi v. Senatore, 230 Conn. 459, 466-67, 645 A.2d 986 (1994). They are not a
party or the action, as the real party plaintiff is the minor child. Botelho v. Curtis,
28 Conn. Supp. 493, 495, 267 A.2d 675 (1970); Tulin v. Tulin, 124 Conn. 518,
522, 200 A. 819 (1938).
I.
Economic Damages:
1. Pecuniary Losses. Connecticut allows for the recovery of all
pecuniary losses including, but not limited to, the cost of reasonable
and necessary medical care, rehabilitative services, custodial care and
lost earnings and loss of future earnings capacity. Connecticut General
Statute 52-572h
2. Parents Expenses. The parent has a right to file an independent
action to recover expenses paid for the child as a result of the third
partys negligence. Connecticut General Statute 52-204; Botelho v.
Curtis, 28 Conn. Supp. 496 A.2d 675 (1970).
3. Caveat: Economic damages awards can be reduced by collateral
source payments. These are payment made by most health care
providers. The deduction is reduced by the premiums paid by the
plaintiff or the employer. If the premiums paid exceed the collateral
source payments then there is no deduction. Conn. Gen Stat. 52-225a
-225c
52
II.
1. Pain and Suffering. Physical pain and suffering and mental and
emotional suffering, along with the loss of the ability to enjoy lifes
pleasures.
2. Fear of Risk of Complications. Fear of increased risk of future
medical complications. Marchetti v. Ramirez, 240 Conn. 49, 55
(1997); Seymour v. Carcia, 221 Conn. 473, 481 n.7 (1992); Petriello v.
Kalman, 215 Conn. 377, 392 n.7, 397-98 (1990).
3. Punitive Damages. Claims for reckless conduct, most common in
motor vehicle claims, allow for recovery of double or triple damages.
Conn. Gen. Stat. 14-295
III.
Jury Instructions
a. Civil Jury Instruction 3.4-1 Damages General
The rule of damages is as follows. Insofar as money can do it, the plaintiff
is to receive fair, just and reasonable compensation for all injuries and
losses, past and future, which are proximately caused by the defendant's
proven negligence. Under this rule, the purpose of an award of damages is
not to punish or penalize the defendant for (his/her) negligence, but to
compensate the plaintiff for (his/her) resulting injuries and losses. You
must attempt to put the plaintiff in the same position, as far as money can
do it, that (he/she) would have been in had the defendant not been
negligent.
Our laws impose certain rules to govern the award of damages in any case
where liability is proven. Just as the plaintiff has the burden of proving
liability by a fair preponderance of the evidence, (he/she) has the burden
of proving (his/her) entitlement to recover damages by a fair
preponderance of the evidence. To that end, the plaintiff must prove both
the nature and extent of each particular loss or injury for which (he/she)
seeks to recover damages and that the loss or injury in question was
proximately caused by the defendant's negligence. You may not guess or
speculate as to the nature or extent of the plaintiffs losses or injuries.
Your decision must be based on reasonable probabilities in light of the
evidence presented at trial. Injuries and losses for which the plaintiff
should be compensated include those (he/she) has suffered up to and
including the present time and those (he/she) is reasonably likely to suffer
53
in the future as a proximate result of the defendant's negligence.

Negligence, as I previously instructed you, is a proximate cause of a loss
or injury if it is a substantial factor in bringing that loss or injury about.
Once the plaintiff has proved the nature and extent of (his/her)
compensable injuries and losses, it becomes your job to determine what is
fair, just and reasonable compensation for those injuries and losses. There
is often no mathematical formula in making this determination. Instead,
you must use human experience and apply sound common sense in
determining the amount of your verdict.
In a personal injury action, there are two general types of damages with
which you must be concerned: economic and noneconomic damages.
Economic damages are monies awarded as compensation for monetary
losses and expenses which the plaintiff has incurred, or is reasonably
likely to incur in the future, as a result of the defendant's negligence. They
are awarded for such things as the cost of reasonable and necessary
medical care and lost earnings. Noneconomic damages are monies
awarded as compensation for non-monetary losses and injuries which the
plaintiff has suffered, or is reasonably likely to suffer in the future, as a
result of the defendant's negligence. They are awarded for such things as
physical pain and suffering, mental and emotional pain and suffering, and
loss of diminution of the ability to enjoy life's pleasures.
I will now instruct you more particularly on economic damages. In this
case, the plaintiff seeks to recover economic damages for each of the
following types of monetary losses or expenses: <Here list each type of
monetary loss or expense for which the plaintiff seeks, and the evidence
potentially supports, an award of economic damages. Then, proceed to
instruct on each such claim under the appropriate paragraph(s) below.>
The plaintiff is entitled to recover the reasonable value of medical care and
expenses incurred for the treatment of injuries sustained as a result of the
defendant's negligence. The plaintiff must prove that the expenses
(he/she) claims were reasonably necessary and proximately caused by the
defendant's negligence.
The plaintiff is also entitled to recover any loss of earnings or earning
capacity that (he/she) proves to have been proximately caused by the
defendant's negligence. With respect to lost earnings up to the present
time, the plaintiff must prove that the defendant's negligence has
prevented (him/her) from receiving the earnings for which (he/she) seeks
compensation. (He/She) must do so by establishing a reasonable
probability that (his/her) injury brought about a loss of earnings. The
evidence must establish a basis for a reasonable estimate of that loss.
54
The plaintiff is also entitled to damages for the loss of future earnings
based upon the evidence as to what (he/she) probably could have earned
but for the harm caused by the defendant's negligence and as to what the
plaintiff can now earn through the earning period of (his/her) life.
Let me now turn to noneconomic damages. In this case, the plaintiff seeks
to recover noneconomic damages for each of the following types of nonmonetary losses or injuries: <Here list each type of non-monetary loss or
injury for which the plaintiff seeks, and the evidence potentially supports,
an award of noneconomic damages. Then, proceed to instruct on each
such claim under the appropriate paragraph(s) below.>
A plaintiff who is injured by the negligence of another is entitled to be
compensated for all physical pain and suffering, mental and emotional
suffering, loss of the ability to enjoy life's pleasures, and permanent
impairment or loss of function that (he/she) proves by a fair
preponderance of the evidence to have been proximately caused by the
defendant's negligence. As far as money can compensate the plaintiff for
such injuries and their consequences, you must award a fair, just, and
reasonable sum. You simply have to use your own good judgment in
awarding damages in this category. You should consider the nature and
duration of any pain and suffering that you find.
A plaintiff who is injured by the negligence of another is entitled to be
compensated for mental suffering caused by the defendant's negligence for
the results which proximately flow from it in the same manner as (he/she)
is for physical suffering.
You should consider, as a separate category for awarding damages in this
case, the length of time the plaintiff was, or will probably be, disabled
from engaging in activities which (he/she) enjoys.
If you find that it is reasonably probable that (he/she) has suffered
permanent physical harm, loss of function or disfigurement, the plaintiff is
entitled to be compensated for that category of injury. Your award should
be in accordance with the nature and extent of such physical impairment,
loss of function or disfigurement and the length of time (he/she) is
reasonably expected to endure its negative consequences. <Here it may be
appropriate to instruct the jury as to the use of any evidence of life
expectancy that has been introduced.>
The plaintiff is entitled to full compensation for all injuries and losses
proximately caused by the defendant's negligence even though those
injuries and losses are more serious than they otherwise would have been
because of a pre-existing condition. You may not compensate the plaintiff
for the pre-existing injury itself. However, the aggravation of such an
55
injury, proximately caused by the defendant's negligence, is a proper item

of noneconomic damages.
b. Civil Jury Instruction 3.4-2 Damages - Double or Treble
In any civil action to recover damages resulting from (personal injury /
wrongful death / damages to property) as in this case the jury, as the
trier of fact, may award double or treble (triple) damages if the plaintiff
has proved that the defendant has:
1. deliberately or with reckless disregard, operated a motor vehicle
in violation of statute <insert appropriate statute and describe
elements, definitions, and specific facts where appropriate>, and
2. that the violation was a substantial factor in causing such
(injury / death / damage to personal property).
You should understand that the phrase deliberately or with reckless
disregard involves conduct that is more than negligence. It is conduct that
indicates a reckless disregard of the just rights or safety of others or of the
consequences of the action. It is conduct that tends to take on the aspect
of highly unreasonable conduct, involving an extreme departure from
ordinary care, in a situation where a high degree of danger is apparent.
If you find that has been proven, you are allowed to multiply any fair, just
and reasonable damages that you award by either two or three. You are
not obliged to do so but you may do so. That is solely within your
discretion.
c. Civil Jury Instruction 3.4-6 Damages - Compensation for
Increased Risk of Injury
The plaintiff claims that (he/she) has suffered an increased risk of
<alleged future complication> as a result of the defendants negligence.
The plaintiff is entitled to recover damages for physical harm resulting
from a failure to exercise reasonable care. If the failure to exercise
reasonable care increases the risk that such harm will occur in the future,
the plaintiff is entitled to compensation for the increased risk. In order to
award this element of damages, you must find a breach of duty that was a
substantial factor in causing a present injury which has resulted in an
increased risk of future harm. The increased risk must have a basis in the
evidence. Your verdict may not be based on speculation. The plaintiff is
entitled to compensation to the extent that the future harm is likely to
occur as measured by multiplying the total compensation to which the
plaintiff would be entitled if the harm in question were certain to occur by
the proven probability that the harm in question will in fact occur.
56
d. Civil Jury Instruction 3.4-8 Damages - Duty to Mitigate (or

Minimize)
You should also consider what efforts the plaintiff took to minimize the
effects of (his/her) injury. One who has been injured by the negligence of
another must use reasonable care, such as following doctors instructions
regarding the treatment of (his/her) injuries, to promote recovery and
prevent any aggravation or increase of the injury. The plaintiff is not
entitled to be compensated for any injury or aggravation of injury caused
by (his/her) failure to minimize damages. Thus, you should reduce the
damages awarded to the plaintiff to the extent you find that the plaintiff
made (his/her) condition worse by not taking reasonable care to promote
(his/her) recovery or prevent any aggravation or increase of the injury. It is
the defendants burden to prove by a preponderance of the evidence that
the plaintiff has failed to minimize (his/her) damages.
Conn. Gen. Stat. 52-555 is the sole basis to bring a claim for wrongful
death. Like any other claim on behalf of a minor child, this must also be brought
by a parent or next friend. Botelho v. Curtis, 28 Conn. Supp. 493, 495, 267A.2d
675 (1970); Tulin v. Tulin, 124 Conn. 518, 522, 200 A. 819 (1938).
I.
Economic Damages:
1. Economic Damages. The same economic damages allowed for
negligence are also permitted in wrongful death claims.
2. Funeral Costs. Also allowed are funeral expenses and any other
reasonable or necessary expenses incurred as a result of the death such
as autopsy costs. General Statutes 52-555; General Statutes 52555a; General Statutes 52-572 (a) and (f); Carrano v. Yale-New
Haven Hospital, 279 Conn. 622, 650-51 (2006); Katsetos v. Nolan,
170 Conn. 637, 657, 659 (1976); Floyd v. Fruit Industries, Inc., 144
Conn. 659, 669-76 (1957); Tesler v. Johnson, 23 Conn. App. 536, 54142 (1990), cert. denied, 217 Conn. 806 (1991).
3. Lost earnings capacity. Recovery is allowed for the value of the
decedent's lost earning capacity less deductions for (his/her) necessary
living expenses taking into consideration that a present cash payment
will be made. Carrano v. Yale-New Haven Hospital, 279 Conn. 622,
651 (2006). "Personal living expenses" do not include recreational
57
expenses, nor that proportion of living expenses properly allocable to

the furnishing of food and shelter to members of the decedent's family
other than himself. Carrano v. Yale-New Haven Hospital, 279 Conn.
622, 651 (2006).
II.
1. Destruction of capacity to enjoy lifes activities.
2. Compensation for the death itself.
3. Pain and suffering if the death was not instantaneous. Butler v. Steck,
146 Conn. 114 (1959); Sanderson v. Steve Snyder Enterprises, 196
Conn. 134 (1985).
III.
Jury Instructions:
In addition to the model jury instructions above, these apply as to

wrongful death cases:
Civil Jury Instruction 3.4-7 Damages - Wrongful Death
a. Reasonable and Necessary Medical and Funeral Expenses
You may award damages for the reasonable and necessary medical,
funeral and burial expenses. The plaintiff is entitled to recover the
reasonable value of medical care and expenses incurred for the treatment
of injuries sustained by the decedent as a result of the defendant's
negligence. The plaintiff must prove that the expenses (he/she) claims
were reasonably necessary and legally caused by the defendant's
negligence.
b. Destruction of Earning Capacity
The destruction of earning capacity, that is, the capacity to carry on the
particular activity of earning money, may be compensated. First, we
address the probable net earnings, in the ordinary sense of that phrase,
during the decedent's probable lifetime.
In measuring the compensation for the destruction of (Mr./Ms.) <name of
decedent>'s earning capacity over (his/her) probable lifetime, it is proper
for you to consider the salary or wages (Mr./Ms.) <name of decedent>
had been earning before the injury which caused (his/her) death. This is
not conclusive evidence; yet, it is evidence of the value of (his/her)
earning capacity. It is likewise proper for you to consider (his/her) general
58
experience as a wage earner and (his/her) qualifications for conducting a

gainful occupation. Necessarily, the damages would be limited to that
period of time which you find would have been (Mr./Ms.) <name of
decedent>'s length of life had (he/she) not died.
Next, you should understand that the probable income taxes must be
deducted from (his/her) probable lifetime earnings to get any fair or proper
basis for assessing reasonable compensation for the loss caused by the
destruction of (his/her) earning capacity. For all practical purposes, the
only usable earnings are net earnings after payment of such taxes.
[<If expert testimony was offered on economic loss:> You may recall the
testimony of <name of expert> who described (his/her) formula in
reducing to present value lost earnings over the decedent's working
lifetime. (He/She) estimated what the wages would have been had the
decedent lived to work from age___ through age ___.]
Next, the probable cost of future personal living expenses must also be
deducted from an award of reasonable compensation for the total
destruction of (his/her) earning capacity. The phrase "personal living
expenses" refers to those personal expenses that would have been
reasonably necessary for (him/her) to spend to maintain (his/her) lifestyle
in order to keep (himself/herself) in such a condition of health and wellbeing that (he/she) could enjoy life's activities before (his/her) death.
Accordingly, in determining the loss to the plaintiff, you must subtract
probable income taxes and necessary personal living expenses.
Now I will instruct you on noneconomic damages.
c. Destruction of Capacity to Enjoy Life's Activities
Damages are also allowed for the destruction of (Mr./Ms.) <name of
decedent>'s capacity to enjoy life's activities.
Evidence has been presented as to those incidents of life that (Mr./Ms.)
<name of decedent> enjoyed, including family, work, sports, recreation
and other aspects of life. You may consider those areas in connection with
this claim and award damages for this loss.
d. Compensation for the Death Itself
The rule is that insofar as money can do it, the plaintiff may be awarded
fair, just and reasonable compensation for the loss of life. As in the other
categories of damages, there is no precise mathematical formula for a jury
to apply.
59
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.>
60
DELAWARE
Christopher Viceconte
Stephen J. Finley, Jr.
Gibbons P.C.
Wilmington, Delaware
(302) 295-4875
I.
Economic Damages
1. Medical Expenses. Medical expenses and other related costs, actually
incurred, resulting from a defendants liability-producing conduct are
recoverable. A minor-plaintiff may also recover estimated future
medical expenses upon a showing of a reasonable probability that such
expenditures will be necessary. Expert testimony is typically required
to establish the amount of estimated future medical expenses and
related costs. See Weiner v. Wisniewski, 213 A.2d 857 (Del. 1965).
An award of future medical expenses should be reduced to its present
value. See Thorpe v. Bailey, 386 A.2d 668 (Del. 1978).
2. Loss of Earnings and Future Earning Capacity. Loss of earnings
(or other item of economic value relating to employment) and, as is
more likely to be an issue in a case involving a minor, loss of future
earning capacity, is a recoverable element of damages in a minorplaintiffs personal injury action. In order to prove a claim for loss of
future earning capacity, a plaintiff must present sufficient evidence as
to the reasonable probability that his or her future earnings will be
diminished because of an injury. See Henne v. Balick, 146 A.2d 394
(Del. Super. Ct. 1958). Expert testimony is required to support such a
claim. See Jardel Co. v. Hughes, 523 A.2d 518 (Del. 1987). The
impact of income taxes, deemed too speculative, should not be
considered in determining an award for lost future earnings. See
Gushen v. Penn Central Transp. Co., 280 A.2d 708 (Del. 1971). An
award for lost future earnings must be reduced to its present value.
See Steppi v. Stromwasser, 297 A.2d 26 (Del. 1972).
II.
Non-Economic Damages
1. Pain and Suffering. A plaintiff is entitled to recover the amount that
would reasonably compensate him or her for any past and future pain
and suffering incurred by reason of the injuries sustained. There must
be a reasonable probability that the pain and suffering was or will be
caused by the injuries. Pain and suffering damages may include
mental as well as physical suffering, and are to be determined based
61
upon the particular facts of each case. See Prettyman v. Topkis, 3 A.2d
708 (Del. Super. Ct. 1938).
2. Compensation for Permanent Nature of Injury. A minor plaintiff
may recover damages for limitations relating to the permanent nature
of the claimed injury. A plaintiff seeking such damages must show a
reasonable probability of the permanence of the injury. See Laskowski
v. Wallis, 205 A.2d 825 (Del. 1964). In assessing these damages, a
jury may consider the life expectancy of the plaintiff, as well as the
activities which the impairment impedes or prevents. See, e.g., Winter
v. Pennsylvania R. Co., 68 A.2d 513 (Del. Super. Ct. 1949).
3. Punitive Damages. Punitive damages are recoverable in personal
injury actions where a tortfeasors conduct is determined to be
intentional, reckless, wanton, willful or undertaken with a disregard for
the safety of another. See Jardel Co. v. Hughes, 523 A.2d 518 (Del.
1987); Strauss v. Biggs, 525 A.2d 992 (Del. 1987). An award of
compensatory damages is a predicate to a punitive damages award,
and such an award should be reasonably proportionate to the amount
of compensatory damages awarded. See Stephenson v. Capano Dev.,
Inc., 462 A.2d 1069 (Del. 1983). Evidence relating to a defendants
financial circumstances may be considered by a jury in determining
punitive damages. See Strauss v. Biggs, 525 A.2d 992 (Del. 1987).
III.
Pattern Jury Instructions

a. Measure of Damages - Personal Injury. DPJI 22.1
If you do not find that [plaintiff's name] has sustained [his/her] burden of
proof, the verdict must be for [defendant's name]. If you do find that
[plaintiff's name] is entitled to recover for damages proximately caused
by the [__accident / injury__], you should consider the compensation to
which [he/she] is entitled.
The purpose of a damages award in a civil lawsuit is just and reasonable
compensation for the harm or injury done. Certain guiding principles
must be employed to reach a proper damages award. First, damages must
be proved with reasonable probability and not left to speculation.
Damages are speculative when there is merely a possibility rather than a
reasonable probability that an injury exists. While pain and suffering are
proper elements on which to determine monetary damages, the damages
for pain and suffering must be fair and reasonably determined and may not
be determined by a fanciful or sentimental standard. They must be
determined from a conclusion about how long the suffering lasted, the
degree of suffering, and the nature of the injury causing the suffering.
62
If you find for [plaintiff's name], you should award to [him/her] the sum
of money that in your judgment will fairly and reasonably compensate
[him/her] for the following elements of damages that you find to exist by
a preponderance of the evidence:
(1)
compensation for pain and suffering that [he/she] has

suffered to date;
(2)
compensation for pain and suffering that it is reasonably

probable that [plaintiff's name] will suffer in the future;
(3)
compensation for permanent impairment;
(4)
compensation for reasonable and necessary medical

expenses incurred to date;
(5)
compensation for reasonable and necessary medical

expenses that it is reasonably probable that [plaintiff's
name] will incur in the future;
(6)
compensation for loss of earnings suffered to date; and
(7)
compensation for earnings that will probably be lost in the

future.
In evaluating pain and suffering, you may consider its mental as well as its
physical consequences. You may also consider such things as discomfort,
anxiety, grief, or other mental or emotional distress that may accompany
any deprivation of usual pleasurable activities and enjoyments.
In evaluating impairment or disability, you may consider all the activities
that [plaintiff's name] used to engage in, including those activities for
work and pleasure, and you may consider to what extent these activities
have been impaired because of the injury and to what extent they will
continue to be impaired for the rest of [his/her] life expectancy. [It has
been agreed that a person of [plaintiff's name]'s age and sex would have a
life expectancy of ___ years.]
The law does not prescribe any definite standard by which to compensate
an injured person for pain and suffering or impairment, nor does it require
that any witness should have expressed an opinion about the amount of
damages that would compensate for such injury. Your award should be
just and reasonable in light of the evidence and reasonably sufficient to
compensate [plaintiff's name] fully and adequately.
b. Measure of Damages - Injury to Minor. DPJI 22.6.
{Comment: Awarding damages to an injured child often poses a difficult
problem to the jury, especially with regard to such items as loss of future
63
earnings and long-term pain and suffering. In such circumstances, it may

be necessary to emphasize that the jury use its common sense and do the
best it can with criteria enumerated in Jury Instr. No. 21.1. A special
instruction, however, should not be necessary.}
c.
Punitive Damages. DPJI 22.27.
If you decide to award compensatory damages to [plaintiff's name], you

must determine whether [defendant's name] is also liable to [plaintiff's
name] for punitive damages.
Punitive damages are different from compensatory damages.
Compensatory damages are awarded to compensate the plaintiff for the
injury suffered. Punitive damages, on the other hand, are awarded in
addition to compensatory damages.
You may award punitive damages to punish a party for outrageous
conduct and to deter a party, and others like [him/her/it], from engaging in
similar conduct in the future. To award punitive damages, you must find
by a preponderance of the evidence that [defendant's name] acted
[intentionally/recklessly]. Punitive damages cannot be awarded for mere
inadvertence, mistake, errors of judgment and the like, which constitute
ordinary negligence.
Intentional conduct means it is the persons conscious object to engage in
conduct of that nature. Reckless conduct is a conscious indifference that
amounts to an "I don't care" attitude. Reckless conduct occurs when a
person, with no intent to cause harm, performs an act so unreasonable and
dangerous that [he/she/it] knows or should know that there is an eminent
likelihood of harm that can result. Each requires that the defendant
foresee that [his/her/its] conduct threatens a particular harm to another.
The law provides no fixed standards for the amount of punitive damages.
In determining any award of punitive damages, you may consider the
nature of [defendants name]s conduct and the degree to which the
conduct was reprehensible. Finally, you may assess an amount of
damages that will deter [defendant's name] and others like [him/her/it]
from similar conduct in the future. You may consider [defendant's
name]'s financial condition when evaluating deterrence. Any award of
punitive damages must bear a reasonable relationship to [plaintiff's
name]'s compensatory damages. If you find that [plaintiff's name] is
entitled to an award of punitive damages, state the amount of punitive
damages separately on the verdict form.
{Comment: Generally the jury will decide liability and compensatory
damages before hearing evidence on assets and being instructed on
64
punitive damages. If both compensatory and punitive damages go to the

jury at the same time, the jury should also be instructed:
{Defendants name]s financial condition must not be considered in
assessing compensatory damages.}
Damages Recoverable in an Action arising from the Death of a Minor
Delaware recognizes two distinct causes of action when a person dies as a
result of the tortious conduct of another: a survival action under 10 Del. C.
3701 and 3704 and a wrongful death action pursuant to 10 Del. C. 3721 3725.
I.
Damages Recoverable in a Minors Survival Action
A survival action allows the executor or administrator of the decedents

estate to pursue an action which the decedent had prior to his or her death. 10
Del. C. 3701; Magee v. Rose, 405 A.2d 143 (Del. Super. Ct. 1979).
A.
Economic Damages
1. Medical Expenses. As in the case of a personal injury action,
medical expenses and other related costs, actually incurred, from
the date of the injury until the date of death, resulting from a
defendants liability-producing conduct are recoverable in a
survival action. See Magee v. Rose, 405 A.2d 143 (Del. Super. Ct.
1979).
2. Loss of Earnings. As in the case of a personal injury action, lost
earnings from the time of injury to the time of death is a
recoverable element of damages in a survival action.
B.
1. Pain and Suffering. A decedents conscious pain and suffering
from the time of injury until death is a proper element of recovery
in a survival action. It is the plaintiffs burden to prove, by a
preponderance of the evidence, an appreciable interval of
conscious pain and suffering after the time of injury and before
death. Absent such proof, compensatory damages for pain and
suffering are not recoverable. See Magee v. Rose, 405 A.2d 143
(Del. Super. Ct. 1979). In addition, recovery of damages for the
hedonic value of the portion of the decedents life extinguished by
the defendants tortious conduct are not recoverable in a survival
action. However, a plaintiff may offer evidence of the hedonic
value of the decedents life to the extent relevant to a measure of
the decedents pain and suffering in the time between the injury
65
and death. See Sterner v. Wesley College, Inc., 747 F. Supp. 263
(D. Del. 1990).
2. Physical Impairment. Compensation may be awarded for
physical impairment resulting from a defendants tortious conduct
for the period of time between the decedents 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 survival
action (to the extent available in a personal injury action) for the
pain and suffering incurred by the decedent before death. See
Reynolds v. Willis, 209 A.2d 760 (Del. 1965). However, punitive
damages are not available where there is no award of
compensatory damages for a decedents conscious pain and
suffering. See Magee v. Rose, 405 A.2d 143 (Del. Super. Ct.
1979).
II.
Damages Recoverable in a Minors Wrongful Death Action
Under the Delaware Wrongful Death Act, an action may be brought for
the benefit of the spouse, parent, child and siblings of the deceased person. 10
Del. C. 3724. In determining the amount of damages to be awarded, the court
or jury shall consider all the facts and circumstances and from them fix the award
at such sum as will fairly compensate for the injury resulting from the death. 10
Del. C. 3724(d).
A.
Economic Damages
1. Loss of Pecuniary Benefits. Damages are recoverable for the
beneficiaries deprivation of the expectation of pecuniary benefits
to the beneficiary or beneficiaries that would have resulted from
the continued life of the deceased. 10 Del. C. 3724(d)(1). This
is measured as the portion of the decedents likely earnings during
his or her lifetime that would have been left as an estate and which
would have gone to the next of kin. In the case of a minor
plaintiff, it has been held that [t]he recovery in an action for the
wrongful death of a child of tender years is the jurys estimate of
the value of the estate the child probably would have earned, saved
and left to his next of kin at the end of his life expectancy. This
sea of pure conjecture may be otherwise described as the jurys
estimate of the present money value of the childs life to the
estimated prospective estate of the child. Cann v. Mann Constr.
Co., 93 A.2d 741 (Del. Super. Ct. 1952). See also Taylor v.
Riggin, 7 A.2d 903 (Del. Super. Ct. 1939). Tax consequences
should not be considered by the jury is assessing this element of
66
wrongful death damages. See High v. State Highway Dept, 307

A.2d 799 (Del. 1973).
2. Loss of Support. Damages are recoverable for the beneficiaries
loss of contributions for support that would have resulted from
the continued life of the deceased. 10 Del. C. 3724(d)(2).
3. Loss of parental, marital and household services, including the
reasonable cost of providing for the care of minor children. 10
Del. C. 3724(d)(3).
4. Reasonable funeral expenses. Reasonable funeral expenses not
to exceed $7,000, or the amount designated in 5546(a) of Title
29, whichever is greater, are recoverable. 10 Del. C. 3724(d)(4).
B.
1. Mental anguish. Pursuant to 10 Del. C. 3724 (d)(5), damages
for mental anguish resulting from the decedents death to the
surviving spouse and next of kin of such deceased person are
available. However, when mental anguish is claimed as a measure
of damages, such claim will be applicable only to the surviving
spouse, children and persons to whom the deceased stood in loco
parentis at the time of the injury which caused the death of the
deceased, parents and persons standing in loco parentis to the
deceased at the time of the injury which caused the death of the
deceased (if there is no surviving spouse, children or persons to
whom the deceased stood in loco parentis), and siblings (if there is
no surviving spouse, children, persons to whom the deceased stood
in loco parentis at the time of the injury, parents or persons
standing in loco parentis to the deceased at the time of the injury
which caused the death of the deceased). A claimant may
potentially recover damages for his or her mental anguish without
a showing of physical injury. See Spencer v. Goodill, 2009 Del.
Super. LEXIS 425 (Del. Super. Nov. 13, 2009). Hedonic damages
are not available in a wrongful death action, and evidence of the
hedonic value of the decedents life is inadmissible as either a
distinct basis for recovery or as a purported measure of a
beneficiarys claimed mental anguish. See Sterner v. Wesley
College, 747 F. Supp. 263 (D. Del. 1990).
2. No punitive damages. Punitive damages are not available in a
wrongful death action. Reynolds v. Willis, 209 A.2d 760 (Del.
1965).
67
III.
Pattern Jury Instructions

a. Measure of Damages - Wrongful Death. DPJI 22.8.
The law recognizes that when a person dies as the result of anothers
wrongful conduct, there is injury not only to the deceased but also to
immediate family members. While it is impossible to compensate the
deceased for the loss of [his/her] life, it is possible to compensate certain
family members for the losses that they have suffered from the death of a
loved one. For this reason, Delaware law provides that when a person dies
as a result of anothers wrongful act, certain family members may recover
fair compensation for their losses resulting from the death. In determining
a fair compensation, you may consider the following:
(1)
the loss of the expectation of monetary benefits that would
have resulted from the continued life of [decedents name]; that is, the
expectation of inheritance that [name of family beneficiaries] have lost;
(2)
the loss of the portion of [decedents name]s earnings and
income that probably would have been used for the support of [names of
family beneficiaries];
(3)
the loss of [decedents name]s parental, marital, and
household services, including the reasonable cost of providing for the care
of minor children;
(4)
$7000; and
the reasonable cost of funeral expenses, not to exceed
(5)
the mental anguish suffered by [names of eligible family
beneficiaries] as a result of [decedents name]s death.
The term mental anguish encompasses the grieving process associated
with the loss of a loved one. You may consider that the grieving process,
accompanied by its physical and emotional upheaval, will be experienced
differently by different people, both in its intensity and in its duration.
The ability to cope with the loss may be different for each person.
There is no fixed standard or measurement. You must determine a fair
and adequate award through the exercise of your judgment and experience
after considering all the facts and circumstances presented to you during
the trial.
While [plaintiffs name] carries the burden of proving [his/her/their]
damages by a preponderance of the evidence, [he/she/they] [is/are] not
required to claim and prove with mathematical precision exact sums of
money representing their damages for mental anguish. It is required only
68
that [plaintiffs name] furnish enough evidence so that you, the jury, can
make a reasonable determination of those damages.
69
FLORIDA
H. Hamilton Rice, III
Courtney L. Rice
Bush Graziano & Rice, P.A.
Tampa, Florida
(813) 228-7000
I.
Economic Damages:
1. Property Damages. Property damages are recoverable.
2. Medical Expenses and other Pecuniary Losses. Medical expenses
incurred as a result of such wrongful or negligent act or omission are
recoverable. See, e.g. City Stores Co. v. Langer, 308 So.2d 621 (Fla.
3d DCA 1975).
3. Lost Wages and Lost Earning Capacity. Loss of Wages or WageEarning Capacity is a recoverable expense. In order to recover future
economic losses, these losses must be shown with established with
reasonable certainty. See, e.g., Benjamin v. Diel, 831 So.2d 1227
(Fla. 4th DCA 2004). The Supreme Court has stated that while
permanent injury is not required for future economic damages, it is a
significant factor in establishing reasonable certainty. Auto-Owners
Insurance Assoc. v. Tompkins, 651 So.2d 89, 91 (Fla. 1995).
4. Loss of Support and Services. This right belongs to the parents of a
minor child.
II.
1. Pain, Suffering, Disability, Disfigurement, Mental Anguish and
Loss of Capacity for the Enjoyment of Life. This recovery right
belongs to the minor. Florida courts have specifically held that there is
no recovery by a parent in a personal injury action for the suffering,
pain, embarrassment and/or humiliation caused the parent by injuries
of the child. See, e.g., City Stores Co. v. Langer, 308 So.2d 621 (Fla.
3d DCA 1975).
2. Loss of Filial Consortium. The Florida Supreme Court first
recognized the right of the parent of an injured child to recover for
permanent loss of filial consortium in United States v. Dempsey, 635
So.2d 961 (Fla. 1994), which is separate from the common law right to
recover loss of support and services. This cause of action only exists
where there is loss of filial consortium as a result of a significant
70
injury resulting in the childs permanent total disability. Id. at 965.

The Florida Supreme Court defined consortium to include the loss
of companionship, society, love, affection, and solace of the injured
child, as well as ordinary day-to-day services that the child would have
rendered. Id. at 965. These damages are limited to the period until
the minor child attains majority. See, Cousins Club Corp. v. Silva,
869 So. 2d 719 (Fla. 4th DCA 2004); See also, Broward Co. School
Board v. Cruz, 761 So. 2d 388, 396 (Fla. 4th DCA 2000), affd, 800
So.2d 213 (Fla. 2001)
3. Punitive Damages. 768.72, Fla. Stat. (2011). In Florida, before a
claim for punitive damages can be asserted in a pleading, there must
be a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such
damages. 768.72(1), Fla. Stat. Punitive damages are permissible
only where the trier of fact, based on clear and convincing evidence,
finds that the defendant was personally guilty of intentional
misconduct or gross negligence. 768.72, Fla. Stat. (2011)
Intentional misconduct is defined so as to require actual knowledge
of the wrongfulness of the conduct and knowledge of the high
likelihood of harm as a result of the conduct. There is a higher
standard for imposing punitive damages on an employer, principal or
an entity. A finding of intentional misconduct or gross negligence by
an individual must be made, as well as a finding by the trier of fact that
the employer/principal/entity actively participated in the conduct,
ratified/condoned/consented to the conduct, or that the
employer/principal/entity itself engaged in conduct that was grossly
negligent and contributed to the claimants injury. 768.72(3), Fla.
Stat. (2011). A greater weight of the evidence standard applies to the
award of damages, while the clear and convincing evidence standard
applies to the issue of entitlement to punitive damage. 768.725, Fla.
Stat. (2011).
III.
Jury Instructions
Negligence General Instruction Personal Injury. Florida Supreme
Court Jury Instruction 501.1(b), 501.2(a), (b), (c).
If your verdict is for Defendant(s) you will not consider the matter of
damages. But, if your verdict is for Plaintiff you should award Plaintiff an
amount of money that the greater weight of the evidence shows will fairly
and adequately compensate him/her for his/her loss/injury/damage,
including any damage Plaintiff is reasonably certain to incur in the future.
You shall consider the following elements:
71
a. Any bodily injury sustained by Plaintiff and any resulting pain

and suffering, disability or physical impairment, disfigurement,
mental anguish, inconvenience, or loss of capacity for the
enjoyment of life experienced in the past or to be experienced
in the future. There is no exact standard for measuring such
damage. The amount should be fair and just in the light of the
evidence.
b. The reasonable value or expense of hospitalization and medical
and nursing care and treatment necessarily or reasonably
obtained by (claimant) in the past or to be so obtained in the
future.
c. The reasonable value or expense of hospitalization and medical
and nursing care and treatment necessarily or reasonably to be
obtained by (minor claimant) after he/she reaches the age of
(legal age).
d. Any loss of ability to earn money sustained in the past and any
such loss in the future.
In Florida, a minor childs personal injury action must be brought be a
guardian or next friend. Wilkie v. Roberts, 109 So. 225 (Fla. 1926); See also,
Rule 1.210, Fla. R. Civ. P. The parent of an injured minor child has the right to
assert independent, individual claims to recover loss of support and services of
their minor child through the age of majority, as well as medical expenses in
effecting a cure through the age of majority. See, L.H. Youngblood v. Taylor, 89
So.2d 503 (Fla. 1956); See also, Wilkie, 109 So. at 227 (Fla. 1926). However, the
right to recover future medical expenses past the age of majority belongs to the
minor. See, e.g., Brown v. Caldwell, 389 So. 2d 287, 288 (Fla. 1st DCA 1980).
There is an exception to this general rule where an evidentiary showing is made
that the minor child will be unable to support himself, due to mental or physical
deficiency, past the age of majority. Id. at 289.
In Florida, the Florida Wrongful Death Act sets out the damages
recoverable in a wrongful death action. See, 766.16, et seq. A survivor of a
deceased minor child is entitled to recover damages for the death of a minor child
under Floridas Wrongful Death Act. Fla. Stat. 768.16, et seq. (2011).
Survivor is defined to include parents, while minor children is defined
within the statute as children under 25 years of age. Fla. Stat. 768.18. A
Florida wrongful death action, however, must be brought by the personal
representative of the decedents estate, who shall recover damages for the
decedents survivors and the estate. Fla. Stat. 768.20.
72
Notably, the Florida Supreme Court has not yet recognized the right of a
surviving parent to recover for the wrongful death of a stillborn child under the
Wrongful Death Act, as that stillborn child is not considered a person within the
meaning of the Act. Tanner v. Hartog, 696 So.2d 705, 706 (Fla. 1997). [The
Court still recognizes a common law right of action for negligent stillbirth, which
permits a parent to recover emotional damages as a result of the negligent death of
a stillborn fetus. Tanner, 696 So.2d at 708.] On the other hand, if a fetus
survives after birth and subsequently dies, there is a right of action under the
Wrongful Death Act. In essence, a showing must be made of existence separate
and independent from the mother after birth before recovery under the Wrongful
Death Act is permitted. See Duncan v. Flynn, 358 So.2d 178 (Fla. 1978)
I.
Economic Damages:
1. Medical and Funeral Expenses. Funeral and medical expenses due to
the decedents 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 decedents injury or death paid on behalf
of the decedent, minus those recoverable by a survivor. See
768.21(4), (6)(b), Fla. Stat.
2. Lost Support and Services and Future Loss of Support and
Services. These damages are recoverable by each survivor. Factors to
be considered with respect to a loss of support and services award are
the survivors relationship to the decedent, the amount of the
decedents probable net income available for distribution to the
survivor and the replacement value of the decedents services. See
768.21(1), Fla. Stat. Florida courts have indicated that the expense of
maintaining a child through the age of majority will normally exceed
the value of any lost services, in the absence of extraordinary income
producing abilities. See, Gresham v. Courson, 177 So. 2d 33 (Fla. 1st
DCA 1965). In the case of parents who are divorced at the time of the
minor childs death, the parent who actually supported the minor child
(without regard to any court order) has the right to recover for loss of
support and services. McDonald v. Forman, 238 So.2d 131, 132 (Fla.
4th DCA 1970).
3. Loss of earnings from the date of injury to date of death. The
personal representative, on behalf of the decedents estate, may
recover these damages. See 768.21(6), Fla. Stat.
II.
1. Mental Pain and Suffering. The parent(s) of a deceased minor child
can recover damages for mental pain and suffering from the date of
injury. See 768.21(4), Fla. Stat.
73
2. Punitive Damages. 768.72, Fla. Stat. (2011). In Florida, before a

claim for punitive damages can be asserted in a pleading, there must
be a reasonable showing by evidence in the record or proffered by the
claimant which would provide a reasonable basis for recovery of such
damages. 768.72(1), Fla. Stat. Punitive damages are permissible
only where the trier of fact, based on clear and convincing evidence,
finds that the defendant was personally guilty of intentional
misconduct or gross negligence. 768.72, Fla. Stat. (2011)
Intentional misconduct is defined so as to require actual knowledge
of the wrongfulness of the conduct and knowledge of the high
likelihood of harm as a result of the conduct. There is a higher
standard for imposing punitive damages on an employer, principal or
an entity. A finding of intentional misconduct or gross negligence by
an individual must be made, as well as a finding that the
employer/principal/entity actively participated in the conduct,
ratified/condoned/consented to the conduct, or that the
employer/principal/entity itself engaged in conduct that was grossly
negligent and contributed to the claimants injury. 768.72(3), Fla.
Stat. (2011). A greater weight of the evidence standard applies to the
award of damages, while the clear and convincing evidence standard
applies to the issue of entitlement to punitive damage. 768.725, Fla.
Stat. (2011).
III.
Jury Instructions
Wrongful Death. Florida Supreme Court Jury Instruction 502.1(b),
502.2(a), (b), (c), (f), (g) and (h).
If your verdict is for Defendant, you will not consider the
matter of damages. But, if your verdict is for Personal
representative, you should award decedents personal
representative an amount of money that the greater weight
of the evidence shows will fairly and adequately
compensate decedents estate and decedents survivors for
their damages, including any damages that the estate and
the survivors are reasonably certain to incur or experience
in the future.
Damages for Estate
In determining the damages recoverable on behalf of
(decedents) estate, you shall consider the following
elements:
74
a.
Lost earnings:
The estates loss of earnings of decedent from the date of

injury to the date of death, less any amount of monetary
support you determine a survivor lost during that period.
b.
Lost accumulations:
The estates loss of net accumulations: Net

accumulations is the part of decedents net income [from
salary or business] after taxes, including pension benefits
[but excluding income from investments continuing beyond
death], which decedent, after paying his personal expenses
and monies for the support of his/her survivors, would have
left as part of his/her estate if he/she had lived a normal life
expectancy.
c.
Medical or funeral expenses:
Medical or funeral expenses due to decedents injury or

death which have become a charge against decedents
estate or were paid by or on behalf of (decedent) by one
other than a survivor.
Damages for Surviving Parents
In determining any damages to be awarded decedents personal
representative for the benefit of decedents surviving parent(s), you shall
consider certain additional elements of damage for which there is no exact
standard for fixing the compensation to be awarded. Any such award
should be fair and just in the light of the evidence regarding the following
elements:
a.
Mental Pain and Suffering of Parents
The mental pain and suffering of [parent(s)] as a result of

the injury and death of (child). In determining the duration
of mental pain and suffering, you may consider the life
expectancies of the surviving parent(s) together with the
other evidence in the case.
b.
Lost Support and Services
The survivors loss, by reason of decedents injury and

death, of decedents support and services including interest
at (legal rate) on any amount awarded for such loss from
the date of injury to the date of death. In determining the
75
duration of any future loss, you may consider the joint life
expectancy of the survivor(s) and decedent.
In evaluating past and future loss of support and services,
you shall consider the survivors relationship to decedent,
the amount of decedents probable net income available for
distribution to the survivor and the replacement value of
(decedents) services to the survivor(s)..
c.
Medical and funeral expenses paid by survivor:
Medical or funeral expenses due to decedents injury or

death paid by any survivor.
76
GEORGIA
Charles L. Clay, Jr.
Brannon J. Arnold
Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC
Atlanta, Georgia
(404) 876-2700
I.
Economic/Special Damages:
Special damages are defined as those which actually flow from a tortious
act and must be proven in a specific amount. O.C.G.A. 51-12-2.
1. Medical and Other Related Expenses. To recover past medical
expenses in a personal injury action, a plaintiff must prove that such
expenses arose from the injury sustained and were reasonable and
necessary. Barnes v. Cornett, 134 Ga. App. 120, 120-21, 213 S.E.2d
703, 705 (1975); see also O.C.G.A. 51-12-7 (providing that a
plaintiff can recover for necessary expenses consequent upon an
injury). The plaintiff has the burden of proving the amount he is
entitled to receive with reasonable certainty. Lester v. S.J. Alexander,
Inc., 127 Ga. App. 470, 471, 193 S.E.2d 860, 861 (1972). However,
Georgias collateral source rule precludes a defendant from
introducing evidence that the plaintiff received benefits from a third
party who is not a joint tortfeasor. Rabun & Associates Const., Inc. v.
Berry, 276 Ga. App. 485, 490, 623 S.E.2d 691, 696 (2005). Therefore,
a plaintiff is allowed to introduce the total amount of medical bills, and
recover for same, even though the amounts actually paid by the
plaintiff or his insurer are less than the amounts shown in the bills;
however, where the defendant, or its insurers, have paid medical
expenses prior to judgment, the defendant is entitled to a set-off
against those payments in order to prevent double recovery. Link and
Hertz, Georgia Law of Damages, 13:3 (2009).
2. Future Medical and Other Related Expenses. In order to recover
future medical expenses, a plaintiff must prove both that the injury will
require future medical attention and that the amount of medical
expenses incurred can be proven with reasonable certainty. Bennett v.
Haley, 132 Ga. App. 512, 514-15, 208 S.E.2d 302, 306 (1974). Any
recovery for future medical expenses must be reduced to present cash
value. Hughes v. Brown, 109 Ga. App. 578, 136 S.E.2d 403 (1964).
Under Georgia law, it is conclusively presumed that an award of
compensation will earn interest at the rate of 5% per annum." Meader
By and Through Long v. U.S., 881 F.2d 1056, 1058 (citing O.C.G.A.
51-12-13) ("It shall be lawful for the trier of fact, in determining the
77
present value of any future earnings, annuity, or amounts, to reduce the

same to the present value upon the basis of interest calculated at 5
percent per annum"); Piggly-Wiggly S., Inc. v. Tucker, 139 Ga. App.
873, 877, 229 S.E.2d 804, 807 (1976) ("the General Assembly has
established that a five percent figure shall be used for reduction of
future expenses to present values). "The award must therefore be
discounted to reflect such interest." Id. However, because a plaintiffs
economists will usually opine that the cost of medical expenses rise
more than average inflation, there is usually little or no discount
obtained for future medical expenses.
3. Loss of Earnings or Earning Capacity. An injured plaintiff may
recover for diminished capacity to labor, lost earning capacity and/or
loss of future earnings. See Myrick v. Stephanos, 220 Ga. App. 520,
521, 472 S.E.2d 431, 434 (1996). Recovery for lost earning capacity
is an item of special damages which requires some evidence upon
which a jury can base with reasonably certainty a finding as to the
amount. Leggett v. Benton Cros. Drayage & Storage Co., 138 Ga.
App. 761, 765, 227 S.E.2d 397, 400-01 (1976). Although proof of the
plaintiffs actual earnings is not essential, there must be some evidence
tending to show what the plaintiff was capable of earning both before
and after the injury. Dept. of Human Resources v. Thomas, 217 Ga.
App. 174, 178-79, 456 S.E.2d 724, 727 (1995). Recovery for the
separately recognized claim of loss of future earnings is permitted
where there is proof of loss of definite earnings that would have been
received in the future but for an injury, even though the injury is not
permanent. Myrick, 220 Ga. App. at 521, 472 S.E.2d at 434.
Diminished capacity to labor is an element of pain and suffering,
and the rule for determining such damages is the enlightened
conscience of fair and impartial jurors. City Council of Augusta v.
Drawdy, 75 Ga. App. 543, 547, 43 S.E.2d 569, 572 (1949). These
damages must also be reduced to present cash value.
II.
Non-Economic/General Damages:
General damages are those which the law presumes to flow from any
tortious act. O.C.G.A. 51-12-2. These damages may be recovered without
proof of any specific amount of damages. Id.
1. Pain and Suffering. An injured party can recover for pain and
suffering for the past, present and future. Aretz v. U.S., 456 F.Supp.
397, 401-402 (S.D. Ga. 1978), judgment affd, 604 F.2d 417 (5th Cir.
1979), on rehg, 635 F.2d 485 (5th Cir. 1982), certified question
answered, 248 Ga. 18, 280 S.E.2d 345 (1981). Pain and suffering is a
generic name for several types of damages, including: mental and
physical pain and suffering; past anxiety or worry proximately
78
attributable to an injury; mental distress caused by impairment of the

enjoyment of life; disfigurement and deformity; and loss of earning
capacity. Id. The measure of damage in such cases is the enlightened
conscience of impartial jurors. Dept. of Human Resources v. Johnson,
264 Ga. App. 730, 738, 592 S.E.2d 124, 131 (2003). This is a highly
subjective standard and plaintiffs attorneys will often play on the
emotions of the jury in order to inflate recovery of these damages.
Future pain and suffering damages are not reduced to net present
value. Chancey v. Shirah, 96 Ga. App. 91, 99 S.E.2d 365 (1957).
2. Punitive Damages. An award of actual or compensatory damages is
necessary to support an award of punitive damages. Weprin v.
Peterson, 736 F. Supp. 1131, 1132 (N.D. Ga. 1988). Punitive
damages may be awarded only in tort actions in which it is proven by
clear and convincing evidence that the defendants actions showed
willful misconduct, malice, fraud, wantonness, oppression, or that
entire want of acre which would raise the presumption of conscious
indifference to consequences. O.C.G.A. 51-12-5.1(b). For any
action not involving product liability (see O.C.G.A. 51-12-5.1(e)), or
a specific intent to harm or the use of alcohol or drugs (see O.C.G.A.
51-12-5.1(f)), the amount of punitive damages which may be
awarded shall be limited to a maximum of $250,000. O.C.G.A. 5112-5.1(g).
3. Emotional Distress. Where a claim is based on ordinary negligence,
the general rule is that damages for emotional or mental distress can
only be recovered in the event of a physical injury. Russaw v. Martin,
221 Ga. App. 683, 685, 472 S.E.2d 508, 510 (1996). However, a
plaintiff may recover for emotional distress if a tort causes aggravation
of a preexisting mental illness. Underwood v. Atlanta & West Point
Railroad Co., 105 Ga. App. 340, 124 S.E.2d 758 (1962). A mental
injury is considered a physical injury. Nationwide Mutual Fire Ins.
Co. v. Lam, 248 Ga. App. 134, 546 S.E.2d 283 (2001). A plaintiff
may also recover for the shock and mental suffering that accompany a
physical injury. Pullman Co. v. Strang, 35 Ga. App. 59, 132 S.E. 399
(1926); Marcelli v. Teasley, 72 Ga. App. 421, 33 S.E.2d 836 (1945).
In addition, a plaintiff may recover for intentional infliction of
emotional distress where the defendant engaged in intentional,
wanton or reckless conduct that resulted in severe emotional distress.
Link and Hertz, Georgia Law of Damages, 4:3 (2009). Georgia
rejects the zone of danger rule, which allows recovery for emotional
distress by one who only witnesses an injury to another person. Burch
v. Uokuni International, Inc., 192 Ga. App. 861, 386 S.E.2d 889
(1989).
79
III.
Jury Instructions
Suggested Pattern Jury Instructions, Vol. I: Civil Cases, 5th ed. (2007),
Charge 66.001.
Damages are given as pay or compensation for injury done. When one
party is required to pay damages to another, the law seeks to ensure that
the damages awarded are fair to both parties. If you believe from a
preponderance of the evidence that the Plaintiff is entitled to recover, you
should award to the Plaintiff such sums as you believe are reasonable and
just in this case.
Suggested Pattern Jury Instruction, Vol. 1: Civil Cases, 5th ed. (2007),
Charge 66.015.
When a person is injured by the negligence of another, he must mitigate
his damages as far as is practicable by the use of ordinary care and
diligence. If you believe that Plaintiff has suffered damages as alleged,
under the law, the Plaintiff is bound to reduce those damages, as far as is
practicable, by the use of ordinary care. If you believe that by the use of
such care, the Plaintiff could have reduced the damages, you would
determine to what extent and reduce such damages to that extent.
Charge 66.040.
"In all cases, necessary expenses resulting from the injury are a legitimate
item of damages. As to medical expenses, such as hospital, doctor, and
medicine bills, the amount of the damage would be the reasonable value of
such expense as was reasonably necessary."
Suggested Pattern Jury Instruction, Vol. 1: Civil Cases, 5th ed. (2007).
"Pain and suffering is a legal item of damages. The measure is the
enlightened conscience of fair and impartial jurors. Questions of whether,
how much, and how long the plaintiff has suffered or will suffer are for
you to decide."
Any action for medical expenses incurred during a child's minority
belongs exclusively to the parents. Adams, Ga. Law of Torts 30:1 (2011)
(citing to O.C.G.A. 19-7-1; Central R. Co. v. Brinson, 64 475 (1880); Frazier v.
Georgia R.R. & Banking Co., 101 70(3), 28 S.E. 684 (1897); Coleman v. Dublin
Coca-Cola Bottling Co., 47 Ga. App. 369, 170 S.E. 549 (1933); Krasner v.
O'Dell, 89 Ga. App. 718(2), 80 S.E.2d 852 (1954); Rose v. Hamilton Medical
Center, Inc., 184 Ga. App. 182, 361 S.E.2d 1 (1987)). The tolling provision for
80
minors under O.C.G.A. 9-3-90 does not apply, and thus, the claim is subject to
the two-year statute of limitations for personal injury actions. Id. at 184, 361
S.E.2d at 2. A parent can properly maintain an action to recover the medical
expenses incurred during the childs minority even after the child turns eighteen
so long as the parent brings the action within the two-year statute of limitations.
The child has no right to bring an action for his medical expenses incurred or to
be incurred while he is a minor; however, he may maintain an action in his own
name for medical expenses incurred after reaching the age of majority.
I.
Wrongful Death
The Georgia Wrongful Death Act is codified in O.C.G.A. 51-4-1 et seq.

and entitles certain individuals to recover for the wrongful death of a minor. See
O.C.G.A. 51-4-1; 51-4-4; and 19-7-1 In every case involving the homicide of a
child, minor or sui juris, some party shall be entitled to maintain an action for the
full value of the life of the child. See O.C.G.A. 19-7-1. The primary rationale
for Georgias full value of the life standard is to impose a civil penalty to deter
homicides. Roescher v. Lehigh Acres Development, Inc., 125 Ga. App. 565, 408
S.E.2d 818 (1991).
A. The Right to Bring a Wrongful Death Claim
The surviving parents, including adoptive parents, have the right to bring a
wrongful death claim for the death of a child in the event that the deceased child
does not leave a spouse or a child. O.C.G.A. 19-7-1(c)(2), 19-8-19(a)(2), 514-4. If the parents are not divorced, the right of action is shared by the parents
jointly. O.C.G.A. 19-7-1(c)(2)(A). Where both parents are living but are
divorced, separated, or living apart, the right will be in both parents. Kimpflen,
14 Ga. Jur. Personal Injury and Torts, 25:22 (2011). If either parent is deceased,
the right shall be in the surviving parent. O.C.G.A. 19-7-1(c)(2)(B). In the
event that the parents are not married or are living separately and one parent either
cannot be located or refuses to proceed, then the other parent has the right to
contract for representation on behalf of both parents. O.C.G.A. 19-7-1(c)(2)(C).
Any recovery is shared equally by both parents in such a situation. See id. If,
after two years from the date of any recovery, the share of an absent parent has
not been paid to the absent parent, the other parent can petition the court for the
funds. See id. A parents right to bring a wrongful death action is not terminated
by an award of temporary custody to state childrens services. DeLoach v. Floyd,
160 Ga. App. 728, 288 S.E.2d 65 (1981). If the deceased child does not have any
parents, adoptive parents, spouse, or child at the time of death, the administrator
or executor of the deceased child may bring a wrongful death claim for the benefit
of the next of kin. O.C.G.A. 51-4-5. The fact that the child was born out of
wedlock does not bar recovery. O.C.G.A. 19-7-1(5).
81
B. Damages Recoverable in a Wrongful Death Action: Full Value

of the Life of the Decedent.
O.C.G.A. 51-4-1(1) states that the [f]ull value of the life of the
decedent, as shown by the evidence means the full value of the life of the
decedent without deduction for necessary or other personal expenses of the
deceased had the deceased lived. The full value of the life of the decedent
consists of two elements 1) the economic value of the deceaseds normal life
expectancy as determined by his expected lifetime earnings, and 2) an intangible
element incapable of exact proof such as a persons society, advice, example and
counsel. Dept. of Human Resources v. Johnson, 264 Ga. App. 730, 738, 592
S.E.2d 124, 131 (2003) (internal citation omitted); TGM Ashley Lakes, Inc. v.
Jennings, 264 Ga. App. 456, 468-69, 590 S.E.2d 807, 819 (2003). Dependency
and economic loss to the beneficiary are not part of Georgias wrongful death
elements because damages under Georgias wrongful death statute are measured
from the decedents point of view. Brock v. Wedincamp, 253 Ga. App. 275, 280,
558 S.E.2d 836, 841 (2002). The value of a childs life must be established by
the enlightened conscience of an impartial jury as applied to the evidence in the
case, including testimony as to such childs age, life expectancy, precocity, health,
mental and physical development, family circumstances, and from the experience
and knowledge of human affairs on the part of the jury. Johnson, 264 Ga. App.
at 738, 592 S.E.2d at 131.
1. Loss of Services. Loss of services may be awarded in a wrongful
death action as part of the full value of the decedents life. South
Fulton Medical Center, Inc., v. Poe, 224 Ga. App. 107, 112, 480
S.E.2d 40, 45 (1996); O.C.G.A. 19-7-1(a) (providing that until the
age of majority, the child shall be under the control of the parents,
who are entitled to his services and the proceeds of his labor.).
2. Loss of Earnings. Minors often have limited or zero earnings history
but Georgia courts allow plaintiffs to present earnings evidence based
upon averages. Georgia allows the introduction of facts which may be
reliable indicators of what a deceased would have earned and those
facts includes such things as a deceaseds age, sex, education, and the
deceaseds parents education and profession. Woods v. Andersen, 145
Ga. App. 492, 243 S.E.2d 748 (1978). Though this distinction does
not come into play that often in the case of deceased minors, the
proper earnings figures to consider are adjusted gross income figures
as opposed to gross earnings. Miller v. Tuten, 137 Ga. App. 188, 223
S.E.2d 237 (1976).
C. Damages Not Recoverable in a Wrongful Death Action:
1. Mental Anguish or Emotional Distress. Recovery for wrongful
death does not include recovery for mental anguish or emotional
82
distress. OB-GYN Assoc. of Albany v. Littlejohn, 259 Ga. 663, 664,

386 S.E.2d 146, 147 (1989), overruled in part on other grounds, Lee v.
State Farm Mut. Ins. Co., 533 S.E.2d 82, 84, 272 Ga. 583, 585 (2000).
The emotional upset of the plaintiff is no part of the measure of
damages in a wrongful death action. Hudson v. Cole, 102 Ga. App.
300, 304, 115 S.E.2d 825, 829 (1960). It is common practice for
defense counsel to move in limine or otherwise object to exclude
evidence of the effect a minors death has had on plaintiff or others,
including family members of the decedent.
2. Loss of Consortium. Georgia does not recognize a cause of action for
loss of consortium arising from the death of a child. In the absence of
a statute to the contrary, a cause of action for loss of consortium is
limited to and applicable only to two parties to a marital union, the
spouses. W.J. Bremer Co., Inc. v. Graham, 169 Ga. App. 115, 116,
312 S.E.2d 806, 808 (1983).
3. Punitive Damages. Punitive damages are not available in a wrongful
death claim. Because wrongful death actions are by their nature
punitive, Georgia courts have determined that to allow punitive
damages would authorize a recovery in excess of the actual loss to the
survivor, namely, the full value of the decedents life. Ford Motor Co.
v. Stubblefield, 171 Ga. App. 331, 340, 319 S.E.2d 470, 480 (1984).
II.
Survival Actions on Behalf of Minors
O.C.G.A. 9-2-41 provides that actions for tort and certain other causes of
action shall not abate by the death of either party and that the cause of action,
in case of the death of the plaintiff and in the event there is no right of
survivorship in any other person, shall survive to the personal representative of
the deceased plaintiff.
A. Damages Recoverable in Survival Actions
1. Funeral, Medical and Other Necessary Expenses. O.C.G.A. 51-45(b) provides for the survival of the deceaseds own cause of action for
the medical and other necessary expenses incurred in caring for the
deceased prior to his or her death. Gay v. Piggly Wiggly Southern,
Inc., 183 Ga. App. 175, 180, 358 S.E.2d 468, 473 (1987). The cause
of action shall be brought by the personal representative on behalf of
the estate. O.C.G.A. 51-4-5(b).
2. Pain and Suffering. A survival action for pain and suffering under
O.C.G.A. 51-4-5(b) and 9-2-41 is separate and distinct from a
wrongful death action under O.C.G.A. 51-4-4 and 19-7-1 and shall
be brought by the personal representative of the estate. Blackstone v.
83
Blackstone, 282 Ga.App. 515, 518, 639 S.E.2d 369, 372, n. 5 (2006).
In order for pre-death pain and suffering damages to be awarded in a
wrongful death action, the jury must have some evidence that the
deceased at some point was conscious of his or her imminent death.
The jury may infer such consciousness from evidence immediately
prior to the impact or following his or her injury. Dept. of Transp. v.
Dupree, 256 Ga. App. 668, 680, 570 S.E.2d 1, 11 (2002).
3. Punitive Damages. Punitive damages may be awarded in connection
with an administrators claims for a decedents pre-death injuries and
pain and suffering. Jones v. Davis, 183 Ga. App. 401, 403, 359 S.E.2d
187, 290 (1987), overruled on other grounds, Brown v. State, 274 Ga.
31, 549 S.E.2d 107 (2001).
III.
Jury Instructions
Charge 66.301
"You may determine the life expectancy of a person when the person's age
is shown without any other direct evidence on the subject. In deciding this
matter, you are also entitled to consider the evidence pertaining to the
person's health, habits, surroundings, and method of living."
Charge 66.302
"There is another way in which you may determine the life expectancy of
the plaintiff. There has been introduced into evidence a copy of the
__________ mortality tables. If you desire to determine from this table the
life expectancy of a person, look up that person's age in one column, and
across from the age column, you will find the life expectancy of a person
of that age. Life expectancy shown on any such table is merely a guide
that you may follow while considering the evidence as a whole."
84
HAWAII
Katherine J. Sullivan, Esquire
DEASEY, MAHONEY, VALENTINI & NORTH, LTD.
Philadelphia, Pennsylvania
215-587-9400
I.
Economic Damages
2. Medical and Other Related Expenses. Medical and related expenses
are recoverable.
3. Loss of Wages or Wage-Earning Capacity. Loss of wages or earning
capacity are recoverable. Hudson v. Uwekoolani, 65 Haw. 468.
II.
Noneconomic Damages
1. Hedonic Damages. Loss of enjoyment of life damages are recoverable.
HRS 663-8.5(a).
2. Punitive Damages. Under Hawaii law, punitive damages are
recoverable where the defendant has acted with such an entire want of
care as would raise a presumption of conscious indifference to
consequences. In determining whether punitive damages are
appropriate, the court focuses primarily on the defendant's state of
mind and, to a lesser degree, the nature of his conduct. Punitive
damages are not awarded for mere inadvertence, mistake, or errors of
judgment. Further, a plaintiff must prove entitlement to punitive
damages by clear and convincing evidence. Assn of Apt. Owners v.
Venture 15, Inc., 115 Haw. 232, (HI 2007).
3. Emotional Distress. Claims for emotional distress are recoverable.
The elements of an action for intentional infliction of emotional
distress are 1) that the conduct allegedly causing the harm was
intentional or reckless, 2) that the conduct was outrageous, and 3) that
the conduct caused 4) extreme emotional distress to another. Plaintiff
may recover damages for negligent infliction of emotional distress
only if she proves that a reasonably prudent person in the same
situation and possessing the same knowledge as the defendant would
have foreseen that someone in Plaintiff's position would have suffered
serious mental distress because of their actions. "Serious mental
distress" is found where a reasonable person, normally constituted,
85
would be unable to adequately cope with the mental stress caused by

the circumstances of the case. Nelson v. Univ. of Hawaii, 15, 97 Haw.
376, (HI 2001).
II.
Jury Instructions. 8.9 Elements of Damages

a. Medical Expenses for Child
If you find for plaintiff(s) on the issue of liability, plaintiff(s) is/are
entitled to damages in such amount as in your judgment will fairly and
adequately compensate him/her/them for the injuries which
he/she/they suffered. In deciding the amount of such damages, you
should consider:
The reasonable value of the medical services provided by physicians,
hospitals and other health care providers, including examinations,
attention and care, drugs, supplies, and ambulance services, reasonably
required and actually given in the treatment of plaintiff(s) and the
reasonable value of all such medical services reasonably probable to
be required in the treatment of plaintiff(s) in the future;
b. Lost Wages
should consider:
The lost income sustained by plaintiff(s) in the past and the lost
income he/she/they is/are reasonably probable to sustain in the future.
c. Pain and Suffering
should consider:
The pain, emotional suffering, and disability which he/she/they
has/have suffered and is/are reasonably probable to suffer in the future
because of the injuries, if any;
86
d. Permanency
should consider:
The extent and nature of the injuries he/she/they received, and also the
extent to which, if at all, the injuries he/she/they received are
permanent;
e.
Disfigurement
should consider:
The deformity, scars and/or disfigurement he/she/they received, and
also the extent to which, if at all, the deformity, scars and/or
disfigurement are permanent;
f. Punitive Damages 8.92

If you award plaintiff(s) any damages, then you may consider whether
you should also award punitive damages. The purposes of punitive
damages are to punish the wrongdoer and to serve as an example or
warning to the wrongdoer and others not to engage in such conduct.
You may award punitive damages against a particular defendant only
if plaintiff(s) have proved by clear and convincing evidence that the
particular defendant acted intentionally, willfully, wantonly,
oppressively or with gross negligence. Punitive damages may not be
awarded for mere inadvertence, mistake or errors of judgment.
The proper measure of punitive damages is (1) the degree of
intentional, willful, wanton, oppressive, malicious or grossly negligent
conduct that formed the basis for your prior award of damages against
that defendant and (2) the amount of money required to punish that
defendant considering his/her/its financial condition. In determining
the degree of a particular defendant's conduct, you must analyze that
defendant's state of mind at the time he/she/it committed the conduct
which formed the basis for your prior award of damages against that
defendant.
87
Any punitive damages you award must be reasonable.

The right to sue for medical expenses belongs to the parent. Upon the age
of majority, the child has the right to sue for medical expenses for which the child
becomes responsible. Chapman v. Brown, 198 F. Supp. 78 (U.S. H.I., 1961).
I.
Economic Damages:
2. Funeral, Medical and Other Related Expenses. Funeral, medical
and other expenses are recoverable.
3. Loss of Wages or Wage-Earning Capacity. Loss of Wages and
Wage-earning capacity are recoverable. Wages are calculated by
consideration of evidence of the decedents probable income during
the remainder of his projected life expectancy if the accident had not
occurred, less cost of maintenance. HRS 663-8.
II.
1. Loss of Society and Companionship. Loss for society and
companionship of a minor child, though difficult to value, are
recoverable.
2. Pain and Suffering. Pain and suffering of the minor child calculated
from the time the incident occurred until the minors death are
recoverable by the Minors estate.
3. Punitive Damages. Punitive damages are recoverable in a wrongful
death
action.
4. Loss of Enjoyment of Life. Loss of enjoyment of life damages are
recoverable. HRS 663-8.5(a).
5. Emotional Distress. Emotional distress experienced by the minor
prior to the minors death is also a basis for recovery.
88
III.
Model Jury Instructions
Hawaii has not adopted standard jury instruction for wrongful death and
survival action claims that are separate and independent from its general damages
instruction.
89
IDAHO
John J. Burke
Robert A. Berry
Farley Oberrecht West Harwood & Burke, P.A.
Boise, Idaho
(208) 395-8500
Generally: The parents of a minor child may maintain an action for the
injury of the minor child. I.C. 5-310; IRCP 17(c). In every such action
damages may be given as under all the circumstances of the case that may be just.
Hayward v. Yost, 72 Idaho 415, 425, 242 P.2d 971, 977 (1952); Jacobsen v.
Schroder, 117 Idaho 442, 444, 788 P.2d 843, 845 (1990). The claims of children
arising from injuries to themselves are permitted for pecuniary as well as for nonpecuniary damages. Id.
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 related
expenses are recoverable. Lasselle v. Special Prods. Co., 106 Idaho
170, 173, 677 P.2d 483, 486 (1984).
3. Loss of Wages or Wage-Earning Capacity: Damages include
contributions which the parents might reasonably have expected to
receive from the earnings of such minor child until his
majority. Hayward v. Yost, 72 Idaho 415, 425, 242 P.2d 971, 977
(1952); Jacobsen v. Schroder, 117 Idaho 442, 444, 788 P.2d 843, 845
(1990); see also Baldwin v. Ewing, 69 Idaho 176, 179, 204 P.2d 430,
431 (1949)(Where an injury to a minor child results in loss of the
ability of that child to work, the parent entitled to the child's services
during minority is deprived of such services and, therefore, is entitled
to damages to compensate him for such loss.)
II.
1. Generally: Damages include contributions which the parents might
reasonably have expected to receive from the earnings of such, for
which there is no precise measure, as well as the loss of protection,
comfort, society and companionship. Hayward v. Yost, 72 Idaho 415,
425, 242 P.2d 971, 977 (1952); Jacobsen v. Schroder, 117 Idaho 442,
444, 788 P.2d 843, 845 (1990);
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2. Punitive Damages: Punitive damages are not favored and should be

awarded in only the most unusual and compelling circumstances, and
are to be awarded cautiously and within narrow limits. Payne v.
Wallace, 136 Idaho 303, 308, 32 P.3d 695, 700 (Ct. App. 2001) citing
Walston v. Monumental Life Ins. Co., 129 Idaho 211, 221, 923 P.2d
456, 466 (1996) quoting Manning v. Twin Falls Clinic & Hosp., 122
Idaho 47, 52, 830 P.2d 1185, 1190 (1992) (emphasis added). Punitive
damages must be requested through the filing of a motion to amend to
seek such a claim; punitive damages may not be requested in the
original complaint. I.C. 6-1604(2). The court shall allow a motion
to amend the pleadings, if after weight the evidence presented, the
court concludes that the moving party has established at such hearing a
reasonable likelihood of proving facts at trial sufficient to support an
award of punitive damages. At trial, the party seeking recovery of
punitive damages must prove by clear and convincing evidence,
oppressive, fraudulent, malicious or outrageous conduct by the party
against whom the claim for punitive damages is asserted. I.C. 61604(2).
3. Emotional Distress. Emotional distress is recoverable as a negligent
or intentional tort.
Intentional infliction of emotional distress requires the following
elements: (1) the defendants conduct was intentional or reckless; (2)
the conduct was extreme and outrageous; (3) there was a causal
connection between the wrongful conduct and the plaintiffs emotional
distress, and (4) the emotional distress was severe. Spence v. Howell,
126 Idaho 763, 774, 890 P.2d 714, 725 (1995); Payne v. Wallace, 136
Idaho 303, 306, 32 P.3d 695, 698 (Ct. App. 2001); Davis v. Gage, 106
Idaho 735, 741, 682 P.2d 1282, 1288 (Ct. App. 1984). The conduct
must be not merely unjustifiable; it must rise to the level of atrocious
and beyond all possible bounds of decency, such that it would cause
an average member of the community to believe that it was
outrageous. Edmondson v. Shearer Lumber Products, 139 Idaho 172,
180, 75 P.3d 733, 741 (2003).
Negligent infliction of emotional distress is simply a category of the
tort of negligence, requiring the elements of a common law negligence
action. See Nation v. State, Dept of Correction, 144 Idaho 177, 18991, 158 P.3d 953, 965-66 (2007); Black Canyon Racquetball Club,
Inc. v. Idaho First Natl Bank, 119 Idaho 171, 175-77, 804 P.2d 900,
904-06 (1991); Brown v. Matthews Mortuary, Inc., 118 Idaho 830,
837, 801 P.2d 37, 44 (1990). It requires the following elements to be
met: (1) a duty recognized by law requiring the defendant to conform
to a certain standard of conduct; (2) a breach of that duty; (3) a causal
connection between the conduct and the plaintiffs injury; and (4)
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actual loss or damage. Brooks v. Logan, 127 Idaho 484, 489, 903 P.2d
73, 78 (1995); Black Canyon Racquetball Club, Inc., 119 Idaho at 17576, 804 P.2d at 904-05; Nation, 144 Idaho at 189, 158 P.3d at 965. In
addition to these elements, there must be some physical manifestation
of the plaintiffs emotional injury. Black Canyon Racquetball Club,
Inc., 119 Idaho at 177, 804 P.2d at 906; Czaplicki v. Gooding Joint
School Dist. No. 231, 116 Idaho 326, 332, 775 P.2d 640, 646 (1989).
III.
Jury Instructions
Damages Instruction
If the jury decides the plaintiff[s] [is/are] entitled to recover from the
defendant[s], the jury must determine the amount of money that will
reasonably and fairly compensate the plaintiff[s] for any damages proved
to be proximately caused by the defendant[s/s] negligence.
The elements of damage the jury may consider are:
A.
Non-economic damages
1.
The nature of the injuries;
2.
The physical and mental pain and suffering,
past and future;
3.
The impairment of abilities to perform usual
activities;
4.
The disfigurement caused by the injuries;
5.
The aggravation caused to any preexisting
condition.
B.
Economic damages
1.
The reasonable value of necessary medical
care received and expenses incurred as a result of
the injury [and the present cash value of medical
care and expenses reasonably certain and necessary
to be required in the future];
2.
The reasonable value of the past earnings
lost as a result of the injury;
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3.
The present cash value of the future earning
capacity lost because of the injury, taking into
consideration the earning power, age, health, life
expectancy, mental and physical abilities, habits,
and disposition of the plaintiff[s], and any other
circumstances shown by the evidence.
4.
The reasonable value of necessary services
provided by another in doing things for the
plaintiff[s], which, except for the injury, the
plaintiff[s] would ordinarily have performed [and
the present cash value of such services reasonably
certain to be required in the future];
5.
[Any other specific item based upon the
evidence.]
Whether the plaintiff[s] [has/have] proved any of these elements is for the
jury to decide.
The general rule is that the parents have the primary right of action for
expenses incurred by the child in connection with the injury. Lasselle v. Special
Prods. Co., 106 Idaho 170, 173, 677 P.2d 483, 486 (1984). However, parents
may waive or relinquish their rights in favor of the child so as to entitle the child
to recover the full amount of damages. Id. This waiver may be formal or implied
from the party's conduct such as failing to object to the bringing of an action by
the child in which the child claims damages properly belonging to the parent, or
when he testifies in the child's action in regard to such damages. If a parent does
not waive or relinquish the right to recover the full amount of damages, this
means that the parent would have sued in their own individual capacity. As such,
it does not appear that the plaintiffs right to sue for medical expenses would
terminate in this situation.
Idaho Code 5-311 authorizes wrongful death actions for heirs or
personal representatives when the wrongful act or neglect of another caused the
decedent's death. This statute does not allow a decedent's claims to survive, but
creates a new cause of action in favor of heirs or personal representatives. Craig
v. Gellings, 148 Idaho 192, 194, 219 P.3d 1208, 1210 (Ct. App. 2009).
I.
Economic Damages:
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1. Property Damages, Future Income. The calculation of damage to

heirs for the wrongful death of a parent should not consider financial
or other circumstances that arise subsequent to the parent's death, such
as the remarriage of a surviving parent. Westfall v. Caterpillar, Inc.,
120 Idaho 918, 821 P.2d 973 (1991). Idaho courts follow a loss of
support theory of damages. Pfau v. Comair Holdings, Inc., 135 Idaho
152, 154-55, 315 P.3d 1160, 1162-63(2000). This theory measures
damages as the loss to the survivors of what the decedent would have
contributed to them in the form of support if he or she had lived. This
theory defines just damages to include recovery for loss of
companionship, protection, bodily care, intellectual culture, and moral
training providing it sufficiently appears that pecuniary damages
resulted from such loss. Id. The recoverable damages do not include
an heir's loss of anticipated inheritance or accumulated earnings from
the decedent; recoverable amounts include only what the heir
reasonably could expect to receive during the decedent's life. Pfau v.
Comair Holdings, Inc., 135 Idaho 152, 15 P.3d 1160 (2000).
2. Funeral, Medical and Other Related Expenses. Funeral, medical, or
other related expenses incurred by or for the deceased as a result of
such wrongful or negligent act or omission are recoverable. Idaho
Code 5-311; Horner v. Sani-Top, Inc., 143 Idaho 230, 237, 141 P.3d
1099, 1106 (2006).
II.
1. Loss of Society and Companionship. Damages for wrongful death
are not limited to pecuniary loss. Sawyer v. Claar, 115 Idaho 322, 766
P.2d 792 (Ct. App. 1988). The elements of damage proper for
consideration under the statute include the loss of the society,
companionship, comfort, protection, guidance, advice, and intellectual
training which the deceased would have provided. Hepp v. Ader, 64
Idaho 240, 130 P.2d 859 (1942).
2. Pain and Suffering, Loss of enjoyment of Life and Emotional
Distress. Pain and suffering are personal to the decedent and are not
damages suffered by the survivors, so an action for pain and suffering
under Idaho Code 5-311 does not survive death. Vulk v. Haley, 112
Idaho 855, 858, 736 P.2d 1309, 1312 (1987). The decedents family,
however, may seek an award of damages for their own emotional
distress arising from the wrongful death of the decedent. Manning v.
Twin Falls Clinic & Hosp., Inc., 122 Idaho 47, 830 P.2d 1185 (1992).
3. Punitive Damages. See above discussion regarding punitive damages.
Punitive damages are potentially recoverable in a wrongful death
94
action under the statute. Gavica v. Hanson, 101 Idaho 58, 608 P.2d
861 (1980).
III.
Jury Instructions
If the jury decides the plaintiff[s] [is/are] entitled to recover from the
defendant[s], the jury must determine the amount of money that will
reasonably and fairly compensate the plaintiff[s] for any damages proved
to be proximately caused by defendant[s/s] negligence.
The elements of damage the jury may consider are:
1.
The reasonable cost of the decedents funeral.
2.
The reasonable value of necessary medical care and
expenses incurred prior to the decedents death.
3.
The reasonable value to the plaintiff[s] of the loss of the
decedents [services] [training] [comfort] [conjugal relationship] and
[society] and the present cash value of any such loss that is reasonably
certain to occur in the future, taking into consideration the life expectancy
of the plaintiff[s], the decedents age and normal life expectancy, habits,
disposition and any other circumstances shown by the evidence.
4.
The plaintiff[s/s] loss of financial support from the
decedent, and the present cash value of financial support the decedent
would have provided to the plaintiff[s] in the future, but for the decedents
death, taking into account the plaintiff[s/s] life expectancy, the
decedents age and normal life expectancy, the decedents earning
capacity, habits, disposition and any other circumstances shown by the
evidence.
Death is inevitable. Although the law compensates for the
untimeliness of a death caused by another, no damages are allowed for
grief or sorrow.
95
ILLINOIS
John S. Monical
Christina Mermigas
Lawrence, Kamin, Saunders & Uhlenhop, LCC
Chicago, Illinois
(312) 372-1947
I.
Economic Damages:
1. Medical Expenses. The reasonable expenses of necessary medical
care, treatment and services received by the child, as well as the
present cash value of the reasonable expenses of necessary medical
care, treatment and services reasonably certain to be received in the
future are recoverable. I.P.I. Civil No. 32.05.
2. Childs Lost Services and Earnings. A parent may recover the
reasonable value of the services of an unemancipated minor. I.P.I.
Civil No. 32.06. The parent generally may recover the childs lost
earnings during the childs minority, but the child generally may
recover the current lost value of future earnings beyond the age of
majority 18. See I.P.I. Civil No. 32.06 (comments); Wolczek v. Public
Serv. Co. of N. Ill., 174 N.E. 577, 583 (Ill. 1930).
3. Caretaking Expenses and Parent Lost Wages. A parent may not
recover the parents lost wages while caring for an injured minor, but a
parent may recover the reasonable value of the care or attendance
rendered by the parent or the expense of necessary paid care or
attendance which has been required as a result of the injury to a minor
and the cash value of such help reasonably certain to be required in the
future. Worley v. Barger, 347 Ill.App.3d 492, 497 (5th Dist. 2004);
I.P.I. Civil No. 30.09.
II.
1. Disfigurement. Disfigurement is recoverable as an element of
damages. I.P.I. Civil No. 30.04; Holston v. Sisters of the Third Order
of St. Francis, 165 Ill.2d 150, 175 (1995). Illinois courts have defined
disfigurement as that which impairs or injures the beauty, symmetry
or appearance of a person or thing; that which renders unsightly,
misshapen or imperfect or deforms in some manner. Antol v. ChavezPereda, 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).
96
2. Disability or Loss of a Normal Life. I.P.I. Civil No. 30.04.01 refers

to disability and loss of normal life as alternative measures of
damage. Case law has defined disability as an absence of competent
physical, intellectual, or moral powers caused by physical defect or
infirmity or the inability to pursue an occupation or perform services
for wages because of physical or mental impairment. Antol v. ChavezPereda, 672 N.E.2d 320, 327 (Ill App. Ct. 1st Dist. 1996); Mulack v.
Hickory Hills Police Pension Board, 625 N.E.2d 259, 263 (Ill. App.
Ct. 1st Dist. 1993). I.P.I. Civil No. 30.04.02 defines loss of a normal
life to include the temporary or permanent diminished ability to enjoy
life, including a persons inability to pursue the pleasurable aspects of
life. Note: The nature, extent, and duration of an injury cannot be
compensated for as a separate element of damages, but the jury may
generally consider the nature, extent, and duration of the injury in
considering other elements of damage. Powers v. Illinois Central Gulf
R.R., 438 N.E.2d 152 (Ill. 1982).
3. Shortened Life Expectancy.
Shortened life expectancy is
recoverable as an element of damages. I.P.I. Civil No. 30.04.05.
4. Increased Risk of Future Harm. Under certain circumstances,
Illinois may allow recovery for future damages that are not reasonably
certain to occur where the Plaintiff proves an increased risk that the
injury will occur. In such cases, the jury is instructed to multiply the
total amount that the plaintiff would be entitled to recover if the future
harm were certain to occur by the probability that it is actually likely
to occur. I.P.I. Civil No. 30.04.03 and 30.04.04.
5. Physical and Mental Pain and Suffering. Pain and suffering has
been defined as the sensation proceeding from hurt or disorder of the
body of which the mind is conscious and is therefore felt. City of
Chicago v. Gilfoil, 99 Ill.App. 88, 89 (Ill. App. Ct. 1st Dist. 1901); see
also Carter v. Azaran, 774 N.E.2d 400 (Ill. App. Ct. 1st Dist. 2002).
Damages for pain and suffering are proper when there is evidence of a
physical injury. Rheinheimer v. Village of Crestwood, 684 N.E.2d 777
(Ill. App. Ct. 1st Dist. 1997). A minor plaintiff can recover for both
past and future pain and suffering, as well as emotional distress
experienced and reasonably certain to be experienced in the future.
I.P.I. Civil Nos. 30.05, 30.05.01. Note: In addition to the mental pain
and suffering of an injured minor, caregivers may, under some
circumstances, be able to recover in a direct claim for negligent
infliction of emotional distress to them if they were in the zone of
danger when a child was injured. See Clark v. Childrens Mem.
Hosp., 955 N.E.2d 1065 (Ill. 2011); Rickey v. Chicago Transit Auth.,
457 N.E.2d 1 (Ill. 1983).
97
6. Aggravation of Pre-existing Injury. The minor child may not

recover for aggravation of a pre-existing condition as a separate
element of damages but the jury may take aggravation of a preexisting condition into account when awarding other, recognized
damage claims. Luye v. Schopper, 809 N.E.2d 156 (Ill. App. Ct. 1st
Dist. 2004). The concept of aggravation of any pre-existing ailment
or condition is reflected in the instruction on measure of damages.
I.P.I. Civil No. 30.21.
7. Punitive damages. Recoverable only in actions sounding in tort and
only when certain aggravated factors are present. As a general rule,
punitive damages may be awarded only when torts are committed with
fraud, actual malice, or deliberate violence or oppression or when the
defendant acts willfully or with such gross negligence as to indicate a
wanton disregard of the rights of others. See I.P.I. Civil No. 35.01.
III.
Jury Instructions:
I.P.I. Civil No. 30.01: Measure of Damages - Personal and Property
If you decide for the plaintiff on the question of liability, you must then fix
the amount of money which will reasonably and fairly compensate him for
any of the following elements of damages proved by the evidence to have
resulted from the [negligence] [wrongful conduct][of the defendant],
[taking into consideration (the nature, extent and duration of the injury)
(and) (the aggravation of any pre-existing ailment or condition)].
[Here insert the elements of damages which have a basis in the evidence.]
Whether any of these elements of damages has been proved by the
I.P.I. Civil No. 30.04: Measure of Damages Disfigurement
The disfigurement resulting from the injury.
I.P.I. Civil No. 30.04.01: Measure of Damages - Disability/Loss of a
Normal Life
[The disability experienced (and reasonably certain to be experienced in
the future).] [Loss of a normal life experienced (and reasonably certain to
be experienced in the future).]
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I.P.I. Civil No. 30.04.02: Loss of a Normal Life Definition

When I use the expression loss of a normal life, I mean the temporary or
permanent diminished ability to enjoy life. This includes a persons
inability to pursue the pleasurable aspects of life.
I.P.I. Civil No. 30.04.03:
Damages
Increased Risk of Harm - Measure of
The increased risk of future [specify condition] [harm] resulting from the
[injury] [injuries] [condition] [conditions].
I.P.I. Civil No. 30.04.04: Increased Risk of Harm Calculation
To compute damages for increased risk of future [specify condition]
[harm] only, you must multiply the total compensation to which the
plaintiff would be entitled if [specify condition] were certain to occur by
the proven probability that [specify condition] will in fact occur. [You do
not reduce future damages by this formula if those damages are more
[likely than not] [probably true than not true] to occur.]
I.P.I. Civil No. 30.04.05: Measure of Damages - Shortened Life
Expectancy
Shorted life expectancy.
I.P.I. Civil No. 30.05: Measure of Damages - Pain and Suffering - Past
and Future
The pain and suffering experienced and reasonably certain to be
experienced in the future] as a result of the injuries.
I.P.I. Civil No. 30.05.01: Emotional Distress
The emotional distress experienced and reasonably certain to be
experienced in the future].
I.P.I. Civil No. 30.06: Measure of Damages - Medical Expense - Past
and Future - Adult Plaintiff, Emancipated Minor, or Minor Whose
Parent Has Assigned Claim to Minor
The reasonable expense of necessary medical care, treatment, and services
received [and the present cash value of the reasonable expenses of medical
care, treatment, and services reasonably certain to be received in the
future].
99
I.P.I. Civil No. 30.07: Measure of Damages - Loss of Earnings or

Profits - Past and Future -Adult Plaintiff, Emancipated Minor, or
Minor Whose Parent Has Assigned Claim to Minor
The value of [time/earnings/profits/salaries/benefits] lost [and the] present
cash value of the [time/earnings/profits/salaries/benefits] reasonably
certain to be lost in the future.
I.P.I. Civil No. 30.08: Measure of Damages - Loss of Future Earnings Future Medical Expenses--Minor Plaintiff
The present cash value of [time/earnings/profits/salaries/benefits/medical
care/treatment/ services]; reasonably certain to be lost [or incurred] in the
future after the Plaintiff has reached the age of eighteen.
I.P.I. Civil No. 30.09: Measure of Damages - Caretaking Expense Past and Future - Adult Plaintiff, Emancipated Minor, or Minor
Whose Parent Has Assigned Claim to Minor
The reasonable expense of necessary help and the present cash value of
such expense reasonably certain to be required in the future].
I.P.I. Civil No. 30.21: Measure of Damages - Personal Injury Aggravation of Pre-Existing Condition - No Limitations
If you decide for the plaintiff on the question of liability, you may not
deny or limit the plaintiffs right to damages resulting from this
occurrence because any injury resulted from [an aggravation of a preexisting condition] [or] [a pre-existing condition which rendered the
plaintiff more susceptible to injury].
I.P.I. Civil No. 30.23: Injury from Subsequent Treatment
If [a defendant] [defendants] negligently cause[s] [injury to] [a condition
of] the plaintiff, then the defendant[s] [is] [are] liable not only for the
plaintiffs damages resulting from that [injury] [or] [condition], but [is]
[are] also liable for any damages sustained by the plaintiff arising from the
efforts of health care providers to treat the [injury] [or] [condition] caused
by the defendant[s] [even if (that) (those) health care provider(s) (was)
(were) negligent.]
I.P.I. Civil No. 35.01: Punitive/Exemplary Damages
In addition to compensatory damages, the law permits you under certain
circumstances to award punitive damages. If you find that (Defendant's
name)'s conduct was [fraudulent] [intentional] [willful and wanton] and
100
proximately caused [injury] [damage] to the plaintiff, and if you believe

that justice and the public good require it, you may award an amount of
money which will punish (Defendant's name) and discourage [it/him/her]
and others from similar conduct. In arriving at your decision as to the
amount of punitive damages, you should consider the following three
questions. The first question is the most important to determine the
amount of punitive damages:
1. How reprehensible was (Defendant's name)'s conduct? On this subject,
you should consider the following:
a) The facts and circumstances of defendant's conduct;
b) The [financial] vulnerability of the plaintiff;
c) The duration of the misconduct;
d) The frequency of defendant's misconduct;
e) Whether the harm was physical as opposed to
economic;
f) Whether defendant tried to conceal the misconduct;
[g) other]
2. What actual and potential harm did defendant's conduct cause to the
plaintiff in this case?
3. What amount of money is necessary to punish defendant and discourage
defendant and others from future wrongful conduct [in light of defendant's
financial condition]?
[In assessing the amount of punitive damages, you may not consider
defendant's similar conduct in jurisdictions where such conduct was lawful
when it was committed.] The amount of punitive damages must be
reasonable [and in proportion to the actual and potential harm suffered by
the plaintiff.]
Under the Illinois family expense provision of the Rights of Married
Persons Act, 750 ILCS 65/15, parents are liable for the expenses of the family,
including medical, hospital and funeral expenses of children under the age of
majority (18). Graul v. Adrian, 205 N.E.2d 444 (Ill. 1965). Accordingly, it is the
parents, and not the child, that are the plaintiffs who hold the right to a cause of
action for reimbursement for such expenses. Skaggs v. Junis, 169 N.E.2d 684 (Ill.
App. Ct. 2d Dist. 1960); Reimers v. Honda Motor Corp., 502 N.E2d 428 (Ill. App.
Ct. 1st 1986). Although a parent can assign the right to recover these expenses to
the child, the childs claim for reimbursement still is subject to the same defenses
that could have been raised against the parent. Reimers, supra The minor child
101
continues to own the right to sue for any damages (including expected future
damages) after the child reaches majority. I.P.I Civil No. 30.08.
I.
Economic Damages:
1. Pecuniary Loss. Damages under the Illinois Wrongful Death Act
(740 ILCS 180/1 et seq.) (the Act) are limited to the pecuniary
loss resulting from the death. 740 ILCS 180/1; I.P.I. Civil No. 31.01.
Pecuniary loss may include loss of money, benefits, goods, services,
and society. I.P.I. Civil No. 31.01.
2. Medical Expenses. Although not provided for in the Wrongful Death
Act, medical expenses are recoverable as a direct action by the parent
(see above).
3. Loss of Earnings or Support. Loss of support includes the
decedents past and future earnings. Gauger v. Millis, 90 N.E.2d 790
(Ill. App. Ct. 2d Dist. 1950); There is no presumption of a loss of
earnings of a child in a wrongful death case.
II.
1. Loss of Society and Companionship. The loss of a childs society
and companionship are fully recoverable as pecuniary losses by
parents. Bullard v. Barnes, 468 N.W.2d 1128 (Ill. 1984). In
determining the value of child-decedents society and companionship,
the jury should be allowed to consider the evidence of family history,
the relationships among the family members, and any ongoing
physical or mental condition of a family member. Chladek v. Albon,
515 N.E.2d 191, 194 (Ill. App. Ct. 1st Dist. 1987). Illinois recognizes
a presumption that lineal heirs and next of kin have sustained
substantial pecuniary loss by the loss of society of a child and allows a
jury to award damages without proof of actual loss. I.P.I Civil No.
31.01; Hall v. Gillins, 147 N.E.2d 352 (Ill. 1958). Parents bringing
claims of minors wrongful death are entitled to this presumption.
Bullard v. Barnes, 468 N.W.2d 1128 (Ill. 1984).
2. Grief, Sorrow, and Mental Suffering. Pecuniary injuries specifically
include damages for grief, sorrow, and mental suffering by a next of
kin and, accordingly these are recoverable in wrongful death actions.
740 ILCS 180/2. The parent may recover mental anguish, loss of
enjoyment of life, and loss of consortium, including the loss of mutual
benefits that the parents received from the childs continued existence,
including love, affection, care, attention, companionship, comfort,
102
guidance, and protection. Dobyns v. Chung, 926 N.E.2d 847, 859 (Ill.
App. Ct. 5th Dist. 2010). However, the jury cannot consider the pain
and suffering of the decedent or the poverty or wealth of the next of
kin when measuring damages. I.P.I. Civil No. 31.07.
3. Punitive Damages. Neither punitive damages nor prejudgment
interest is allowable in wrongful-death actions. Gardner v. Geraghty,
423 N.E.2d 1321 (Ill. App. Ct. 1st Dist. 1981). Punitive damages
similarly are not recoverable under Illinois Survival Act. 755 ILCS
5/27-6; Ballweg v. Springfield, 499 N.E.2d 1373, 1377 (Ill. 1986);
Froud v. Celotex Corp., 456 N.E.2d 131, 133 (Ill. 1983).
III.
Jury Instructions:
I.P.I Civil No. 31.01 Measure of Damages - Wrongful Death - Minor
Child Decedent - Lineal Next of Kin Surviving
the amount of money which will reasonably and fairly compensate the
[lineal next of kin, e.g. parent] of the decedent for the pecuniary loss
proved by the evidence to have resulted to the [lineal next of kin] from the
death of the decedent.
Pecuniary loss may include loss of money, benefits, goods, services, and
society.
Where a decedent leaves [lineal next of kin], the law recognizes a
presumption that the [lineal next of kin] has sustained some substantial
pecuniary loss by reason of the loss of the child's society. The weight to be
given this presumption is for you to decide from the evidence in this case.
In determining pecuniary loss, you may consider what the evidence shows
concerning the following:
[ 1. What (money,) (benefits,) (goods,) (and) (services) the
decedent customarily contributed in the past;]
decedent was likely to have contributed in the future;]
[ 3. His age;]
[ 4. His sex;]
[ 5. His health;]
[ 6. His physical and mental characteristics;]
[ 7. His habits of (industry,) (sobriety,) (and) (thrift);]
[ 8. His occupational abilities;]
[ 9. The grief, sorrow, and mental suffering of [next of kin];]
103
[10. The relationship between [lineal next of kin] and the

decedent.]
[The pecuniary loss must be reduced by the expenditures that you find the
parent(s) would have been likely to incur for the child had the child lived.]
I.P.I Civil No. 31.02 Measures of Damages -Wrongful Death - Minor
Child Decedent -Collateral Next of Kin Surviving
[collateral next of kin, e.g., brother] of the decedent for the pecuniary loss
proved by the evidence to have resulted to [collateral next of kin] from the
death of the decedent. Pecuniary loss may include loss of money,
benefits, goods, services, and society.
[1. What (money,) (benefits,) (goods,) (and) (services) the
[2. What (money,) (benefits,) (goods,) (and) (services) the
[3. His age;]
[4. His sex;]
[5. His health;]
[6. His physical and mental characteristics;]
[ 9. The grief, sorrow, and mental suffering of [collateral next of
kin];]
[10. The relationship between [collateral next of kin] and
[decedent].]
Whether pecuniary loss has been proved by the evidence is for you to
determine.
I.P.I. Civil No. 31.03 Measures of Damages -Wrongful Death - Minor
Child Decedent -Lineal and Collateral Next of Kin Surviving
[lineal and collateral next of kin, e.g. brother, parent, etc.] of the decedent
for the pecuniary loss proved by the evidence to have resulted to [the
lineal and collateral next of kin] from the death of the decedent.
104
Pecuniary loss may include loss of money, benefits, goods, services, and
society.
Where a decedent leaves [lineal next of kin], the law recognizes a
presumption that the [lineal next of kin] have sustained some substantial
pecuniary loss by reason of the loss of the child's society. The weight to be
given this presumption is for you to decide from the evidence in this case.
There is no presumption of pecuniary loss to the [collateral next of kin] of
the decedent.
[ 3. His age;]
[ 4. His sex;]
[ 5. His health;]
[ 6. His physical and mental characteristics;]
[ 9. The grief, sorrow, and mental suffering of [next of kin];]
[10. The relationship between [lineal and collateral next of kin]
and [decedent].]
[Pecuniary loss must be reduced by the expenditures that you find the
parent(s) would have been likely to incur for the child had the child lived.]
I.P.I. Civil. No. 31.07: Factors Not Considered in Determining
Pecuniary Loss
[Under Count ____________________,] In determining "pecuniary loss"
you may not consider the following:
[1. The pain and suffering of the decedent;]
[2. The grief or sorrow of the next of kin;] [or]
[3. The poverty or wealth of the next of kin.]
105
I.P.I. Civil. No. 31.09: Action for Wrongful Death and Survival Action
Brought By Personal Representative
The plaintiff administrator's or executor's name brings this action in a
representative capacity by reason of his being [administrator] [executor] of
the estate of deceased. He represents names of widow and/or next of kin,
the [widow] [and] [next of kin] of the deceased, [and the estate of the
deceased]. They are the real parties in interest in this lawsuit, and in that
sense are the real plaintiffs whose damages you are to determine if you
decide for the [administrator] [executor] of the estate of deceased's name.
I.P.I. Civil. No. 31.10: Damages - Survival Action
estate for any of the following elements of damages proved by the
evidence to have resulted from the [negligence] [wrongful conduct] of the
defendant during the period between the time of the decedents injuries
and the time of his death, taking into consideration the nature, extent, and
duration of the injury:
[Here insert the elements of damages which have a basis in the evidence.]
Whether any of these elements of damages has been proved by the
I.P.I. Civil. No. 31.11: Damages - Loss of Society Definition
When I use the term society in these instructions, I mean the mutual
benefits that each family member receives from the other's continued
existence, including love, affection, care, attention, companionship,
comfort, guidance, and protection.
I.P.I. Civil. No. 31.12: Discount of Future Damages
If you find for the plaintiff, then in assessing damages you may consider
how long the [names next of kin] will be likely to sustain pecuniary losses
as a result of [decedent's name]'s death, considering how long [decedent's
name] was likely to have lived and how long [names of widow and/or next
of kin] [is] [are] likely to live.
In calculating the amount of these pecuniary losses consisting of money,
goods or services, you must not simply multiply the life expectancies by
the annual losses. Instead, you must determine their present cash value.
"Present cash value" means the sum of money needed now which, together
with what that sum may reasonably be expected to earn in the future, will
106
equal the amounts of those pecuniary losses at the times in the future when
they will be sustained.
Damages for [loss of society] are not reduced to present cash value.
107
INDIANA
Thomas H. Neuckranz
Jordan D. Shea
Williams Montgomery & John Ltd.
Chicago, Illinois
(312) 443-3200
A wrongful act resulting in injury to a minor child gives rise to two causes
of action: one in favor of the injured child and the other in favor of the parent.
Elkhart Cmty. Sch. V. Yoder, 696 N.E.2d 409, 416 (Ind. Ct. App. 1998). Indiana
courts refer to the childs action as one for personal injury, while the cause of
action to the parent is one for property damage. Id. A parent of guardians right
to bring an action for injury to a child is provided by statute. See Ind. Code 3423-2-1(c).
I.
Parents Damages:
1. Reasonable and Necessary Medical Expenses. Hockema v. J.S., 832
N.E.2d 537, 542-43 (Ind. Ct. App. 2005). Both parents have a legal
responsibility to pay the childs necessary medical expenses. St.
Marys Med. Ctr., Inc. v. Bromm, 661 N.E.2d 836, 837 (Ind. Ct. App.
1996). The obligation pay medical expenses is not a damage inflicted
directly on the parents, and therefore the parents right to recover is a
derivative right dependent upon the childs right to recovery.
Hockema, 832 N.E.2d at 542. Because of the derivative nature of the
claim for medical expenses, the childs comparative fault may reduce
or bar the parents recovery. Id.
Medical bills are admissible into evidence and constitute prima facie
evidence that the charges are reasonable. Ind. R. Evid. 413; Burge v.
Teter, 808 N.E.2d 124, 132 (Ind. 2004). Expert testimony is not
required to establish reasonable expenses, but the defendant may rebut
the prima facie evidence of reasonableness through cross examination
or by introducing expert testimony. Stanley v. Walker, 906 N.E.2d 852,
856 (Ind. 2009). An injured plaintiff may recover for the reasonable
value of medical services, which may be less than the full amount
billed. Butler v. Ind. Dept of Ins., 904 N.E.2d 198, 202 (Ind. 2009).
Where the medical provider accepted a discounted rate, for example as
a result of a contract with an insurer, the acceptance of the discounted
rate may be admissible to establish that the bills are not reasonable.
Stanley, 906 N.E.2d at 859. The existence of insurance is not
admissible. Id.; Ind. Code 34-44-1-2.
108
2. Loss of services. Forte v. Connerwood Healthcare, Inc., 745 N.E.2d

796, 802 (Ind. 2001). The trier of fact measures the loss of services
damages from the date of the injury until the date the child attains
majority, age 18. Thompson v. Town of Ft. Branch, 178 N.E.2d 440,
444 (Ind. 1931); Ind. Model Civ. J.I. 713. Because loss of services is a
direct claim of the parents, the childs comparative fault should not
reduce recovery. See Hockema, 832 N.E.2d at 542. A parent may not
recover for loss of love, society or companionship resulting from an
injury to a child. Forte, 745 N.E.2d at 801.
3. The childs lost earnings during his minority. Allen v. Arthur, 220
N.E.2d 658, 659-60 (Ind. Ct. App. 1966). Unless a minor is
emancipated, that parent is entitled to recover the childs lost time,
wages, and earning capacity during the childs minority. Id. Like the
parents loss of services claim, this is also a direct claim.
II.
Childs Damages:
1. The nature and effect of the injury and the effect of the injury on
the plaintiffs ability to function as a whole. Canfield v. Sandrock,
563 N.E.2d 1279, 1282 (Ind. 1990). The Indiana Supreme Court has
approved the model jury instruction directing the jury to consider the
nature and effect of the injuries, and the effect of the injuries on the
plaintiffs ability to function as a whole person. Id. The jury should
also consider whether the injuries are temporary or permanent, and
whether they resulted in the aggravation of any previous condition. Id.
at 1281 n.1.
The Canfield court held that the trial court improperly instructed the
jury to consider the effect of [the plaintiffs] injury upon the quality
and enjoyment of his life. Id. at 1281-82. A plaintiff is entitled to
recover for losses of pleasure or enjoyment that result from an injury.
Id. at 1282. Those losses are embodied in the instruction that the jury
consider the nature and extent of the injury, and the effect of the injury
on the plaintiffs ability to function as a whole. Id.
2. Impairment of earning capacity after the age of majority. Until the
age of majority, the right to a childs earnings belongs to the parents.
Chicago, S.B. & N.I. Ry. Co. v. Seaman, 105 N.E.2d 234, 234 (Ind.
1914). After the age of majority, an injured plaintiff may recover
difference between the amount he was capable of earning before the
injury and the amount he was capable of earning after. Catt v. Skeans,
867 N.E.2d 582, 588 (Ind. Ct. App. 2007); Ind. Model Civ. J.I. 709.
109
A plaintiff claiming loss of earning capacity need not show that he was
employed at the time of the injury. Rieth-Riley Const. Co., Inc. v.
McCarrell, 325 N.E.2d 844, 848 (Ind. Ct. App. 1975). The plaintiff
must show more than proof of permanent injury and pain. Scott v.
Nabours, 296 N.E.2d 438, 441 (Ind. Ct. App. 1973). Through either
expert or lay testimony, the plaintiff must submit evidence tending to
show his injury had an adverse effect on vocation. Id. In awarding
damages for loss of earning capacity, the jury may consider evidence
of the plaintiffs age, life expectancy, health, training, experience,
intelligence, and talents, as well as the nature of the injuries.
McCarrell, 325 N.E.2d at 849.
3. Physical and mental pain and suffering. Canfield, 563 N.E.2d at
1282. Juries are given wide latitude because awards for pain, suffering,
and mental anguish are by their nature not readily susceptible to
quantification. Weinberger v. Boyer, 956 N.E.2d 1095, 1113 (Ind. Ct.
App. 2011).
4. Reasonable and Necessary Medical Expenses. Either the parent of
child may claim reasonable and necessary medical expenses. See
discussion below.
5. Punitive Damages. A minor plaintiff may receive a punitive damages
award under appropriate circumstances. See Stroud v. Lints, 790
N.E.2d 440, 442 (Ind. 2003). The purpose of punitive damages is to
punish the wrongdoer and to deter others from similar misconduct.
Miller Pipeline Corp. v. Broeker, 460 N.E.2d 177, 183 (Ind. Ct. App.
1984). Punitive damages may be awarded where the defendant acted
with malice, fraud, gross negligence or oppressiveness which was not
the result of a mistake of fact or law, honest error of judgment,
overzealousness, mere negligence, or other human failing. Kalwitz v.
Kalwitz, 934 N.E.2d 741, 754 (Ind. Ct. App. 2010). Compensatory
damages are a prerequisite to an award of punitive damages. First
Bank of Whiting v. Schuyler, 692 N.E.2d 1370, 1374 (Ind. Ct. App.
1998). A punitive damage award must not be more than the greater of
three times the compensatory damages or $50,000. Ind. Code 34-513-4. The plaintiff receives 25% of the punitive damages award and the
remaining 75% is awarded to the state for a violent crime victims
compensation fund. Ind. Code 34-51-3-6.
110
III.
Jury Instructions
703 General Elements of Damages
If you decide from the greater weight of the evidence that [defendant] is
liable to [plaintiff], then you must decide the amount of money that will
fairly compensate [plaintiff].
In deciding the amount of money you award, you may consider:
(1)
the nature and extent of the [injury][injuries], and the effect

of the [injury][injuries] on the [plaintiff]'s ability to
function as a whole person;
(2)
whether the [injury][injuries] [is][are] temporary or

permanent;
(3)
the value of [child's] [lost time][lost earnings][and][loss or

impairment of earning capacity] after [child] turn[s][ed]
eighteen;
(4)
the value of any earnings, services, kindness, or attention

[child] reasonably would have been expected to provide
[his][her] parents up to the time [child] turn[s][ed]
eighteen, and that the parents have now lost (or can
reasonably be expected to lose) as a result of [defendant's]
[negligence][wrongful conduct];
(5)
the physical pain and mental suffering [plaintiff] has

experienced [and will experience in the future] as a result
of the [injury][injuries];
(5)
the reasonable value of necessary medical care, treatment,

and services plaintiff incurred [and will incur in the future]
as a result of the [injury][injuries];
(6)
the aggravation of a previous

[injury][disease][or][condition];
(7)
the [disfigurement][and][or][deformity] resulting from the

[injury][injuries]; and
(8)
the life expectancy of [plaintiff].
111
Both the parent and the child are liable for necessary and reasonable
medical services furnished to the child. Scott County Sch. Dist. 1 v. Asher, 324
N.E.2d 496, 499 (Ind. 1975). Both the parent and the child have a cause of action
against the tortfeasor to recover medical expenses as damages. Id. The Indiana
Supreme Court has held, [h]owever parent and child divide their claim for
medical expenses, that division is of no consequence to the tortfeasor, as long as
he is not subject to pay twice for the same expenses. Id.
When the child reaches the age of majority, the parents obligation to pay
medical expenses incurred during the childs minority are not discharged. See
Asher, 324 N.E.2d at 499. The parents may therefore maintain a claim against a
tortfeasor for medical expenses incurred during the childs minority, despite the
fact that the child is no longer a minor. However, the parents are not responsible
for paying medical expenses incurred after the child attains majority. See
Hockema, 832 N.E.2d at 542. Claims against a tortfeasor for medical expenses
incurred by an adult belong to the adult, and not to the parents. Id.
Damages Recoverable in a Child Wrongful Death Claim
Wrongful Death actions are created by statute. Durham ex rel. Estate of
Wade v. U-Haul Intl, 745 N.E.2d 755, 758 (Ind. 2001). Indianas Child Wrongful
Death Statute (CWDS) provides the exclusive right of recovery in actions
resulting in the death of an unmarried person under age 20, or under age 23 if
enrolled in school, which includes a fetus that has attained viability. Randles v.
Ind. Patients Compensation Fund, 860 N.E.2d 1212, 1220 (Ind. Ct. App. 2007);
Ind. Code 34-23-2-1. The CWDS lists the exclusive types of damages a plaintiff
may recover. See Ind. Code 34-23-2-1(f). Punitive Damages not available. Fore
v. Connerwood Healthcare, Inc., 745 N.E.2d 796, 799-800 (Ind. 2001).
I.
Damages Recoverable:
1. Loss of the childs services. Ind. Code 34-23-2-1(f)(1). The parents
may recover for the loss of the childs services from the date of death
until the shorter of (1) the date the child would have reached the age of
20, or age 23 if the child was enrolled in college, or (2) the date of
death of the childs last surviving parent. Ind. Code 34-23-2-1(g).
Evidence in support of a loss of services claim may include, for
example, the fact that the child was healthy, helped with chores at
home, and maintained a part-time job. Childs v. Rayburn, 346 N.E.2d
655, 665 (Ind. Ct. App. 1976).
2. Loss of the childs love and companionship. Ind. Code 34-23-21(f)(2). The parents relationship with the child provides evidence of
the loss of the childs love and companionship. Randles, 860 N.E.2d at
112
1232. Evidence of remarriage after the childs death or evidence of

post-death relationship with other children is not admissible to
mitigate damages. Id. The parent is entitled to an award for loss of
love and companionship from the time of the childs death until the
actual or expected date of death of the last surviving parent. Robinson
v. Wroblewski, 704 N.E.2d 467, 476 (Ind. 1998); Randles, 860 N.E.2d
at 1231.
3. Medical expenses resulting from the wrongful act. Ind. Code 3423-2-1(f)(3)(A). See prior discussion for evidentiary issues relating to
proof of reasonable medical expenses.
4. Expenses of the childs funeral and burial. Ind. Code 34-23-21(f)(3)(B).
5. Reasonable Expenses of psychiatric and psychological counseling
incurred by a surviving parent or minor sibling of the child
resulting from the death. Ind. Code 34-23-2-1(f)(3)(C).
6. Uninsured debts of the child, including those for which a parent is
obligated. Ind. Code 34-23-2-1(f)(3)(D).
7. Expenses of the administration of the childs estate, including
reasonable attorneys fees. Ind. Code 34-23-2-1(f)(3)(E).
II.
Jury Instructions
735 Wrongful DeathDeath of Child
If you decide from the greater weight of the evidence that [defendant(s)]
[is][are] liable to [plaintiff(s)], you must then decide the amount of money
that will fairly compensate [plaintiff(s)] for the loss they suffered from the
wrongful death of [child].
In determining the amount of money to award, you may consider only the
value of:
(1)
the loss of [child]'s services;
(2)
the loss of [child]'s love and companionship;
(3)
the cost of health care and hospitalization required by the

wrongful act or omission that caused [child]'s death;
(4)
the cost of [child]'s funeral and burial;
113
(5)
reasonable cost of psychiatric and psychological counseling

incurred by [surviving parent(s) and minor siblings] and
required as a result of the [child]'s death;
(6)
[child]'s uninsured debts, including debts that [parent(s)]

[is][are] required to pay on [child]'s behalf; and
(7)
the cost of administering [child]'s estate, including

reasonable attorney's fees.
In awarding damages for the loss of [child]'s love and companionship,

damages may be awarded from the time of [child]'s death until the end of
child's last surviving parent's life expectancy.
In awarding damages other than for loss of love and companionship, you
may consider only the time from [child]'s death until:
(1)
[he][she] would have reached the age of twenty;
(2)
[he][she] would have reached the age of twenty-three years

if [he][she] was enrolled in a postsecondary educational
institution, or a career and technical education school or
program that is not a postsecondary educational program;
or
(3)
the end of child's last surviving parent's life expectancy.
whichever period you determine would have ended first.
114
IOWA
Kevin M. Reynolds
Whitfield & Eddy, PLC
Des Moines, Iowa
(515) 288-6041
In Iowa a minor does not have the capacity to sue for his personal injury.
Instead, such claims are brought by the parents under the authority of Iowa Rule of
Civil Procedure 1.206, formerly known as Rule 8. Claims of this type are
known generally in Iowa as Rule 8 claims. Rule 8 covers a minors claims for
both personal injury and wrongful death.
Iowa R. Civ. P. 1.206 provides as follows:
Rule 1.206. Injury or death of a minor
A parent, or the parents, may sue for the expense and actual
loss of services, companionship and society resulting from
injury to or death of a minor child.
Note:
A parent suing under Rule 8 cannot recover damages for pain, suffering,
grief, or mental anguish from the loss of a child. Heimlicher v. Steele, 615 F.
Supp.2d 884 (N. D. Iowa 2009).
I.
Economic Damages:
1. Medical and other related expenses. These are recoverable by the
parent under the expense element of Rule 1.206.
2. Loss of earnings or wage earning capacity. As with any case
involving personal injury, this claim can be made. See Iowa Uniform
Civil Jury Instruction No. 200.8 (2010)(Loss of time-earnings); 200.9
(2010)(Loss of Future Earning Capacity). There are no reported Iowa
decisions that address how a claim for loss of future earning capacity
may be proven, in the case of an injury to a minor. In practice, the
plaintiffs attorney retains an economist to make future projections
based on historical facts such as the parents education, their work
experience, and income, and the education, work experience and
income of any older siblings, as well as any other relevant factors,
such as school grades, part time work, and so forth. If the case
involves an injury to a very young minor is involved, it would seem
that such a claim would be overly speculative, and Iowa law is clear
that in general, speculative damages are not recoverable. See, e.g.,
Hammes v. JCLB Properties, LLC, 764 N.W.2d 552 (Iowa App.
2008)(recovery is denied for speculative and uncertain damages).
115
II.
1. Pain and suffering. This is recoverable. See Iowa Uniform Civil
Jury Instruction No. 200.12 (Physical and mental pain and suffering
past) and No. 200.13B (Physical and Mental Pain and Suffering
Future)(2010)
2. Permanent injury. Under Iowa law this is referred to as Loss of Full
Mind and Body Past, and Loss of Full Mind and Body Future. See
Iowa Uniform Civil Jury Instruction Nos. 200.10 and 200.11B (2010).
3. Punitive damages. These claims are governed by Iowa Code
668A.1 (2010). That statute provides that punitive damages may be
awarded where by a preponderance of the clear, convincing and
satisfactory evidence, the conduct of the defendant from which the
claim arose constituted willful and wanton disregard for the rights or
safety of another. See Iowa Code 668A.1(1)(a)(2010). Under Iowa
law there is no proscription or prohibition against a minors claim for
punitive damages.
III.
Model Jury instruction for Iowa:

a. Medical Expenses for Child Iowa Uniform Civil Jury Instruction
200.29.
If you find (father and/or mother) is entitled to recover for damage
sustained by [him][her] as the result of the injury to (minor), it is your
duty to determine the amount. In doing so you shall consider the
following items:
The reasonable value of [hospital charges][doctor
charges][prescriptions][other medical services] from the date of the injury
to the present time.
The present value of reasonable and necessary [hospital
charges][doctor charges][prescriptions][other medical services] which will
be incurred for the childs injuries from the present time until the child
[reaches age eighteen years][marries].
b. Loss of Services/Companionship
If you find (father and/or mother) is entitled to recover for damage
sustained by [him][her] as the result of the injury to (minor), it is your
duty to determine the amount. In doing so you shall consider the
following items:
The reasonable value of the past loss of services, which include loss of
companionship and society of the child, from the date of the childs injury
116
to [the present time][the date the child reaches age eighteen

years][marries]], minus the probable cost of the childs board and
maintenance during that time period.
The present value of the future loss of services, which includes loss of
companionship and society of the child, from the present time until the
child [reaches age eighteen years][marries] minus the present value of the
probable cost of child support and maintenance during that same time
period.
[These] Items include [loss of earnings of the child][the economic or
financial value of the childs labor where the child is not employed] as
well as the parents right to the intangible benefits of companionship,
cooperation and affection of the child. They do not include mental
anguish by the parent caused by the injury to the child.
In determining loss of companionship and society, you may consider the
circumstances of the life of the child including:
1.
The childs age, health, strength, intelligence, character,
interests and personality.
2.
Activities in the household and community.
3.
All other facts and circumstances bearing on the issue.
The amounts, if any, you find for each of the above items will be used to
answer the special verdicts.
See also Gookin v. Norris, 261 N.W.2d 692 (Iowa 1978); Wardlow v. City
of Keokuk, 190 N.W.2d 439 (Iowa 1971).
The parent has the right to sue for medical expenses. See Iowa R. Civ. P.
1.206. It is unclear under Iowa law if the parent or child has the right to pursue
medical expenses once the child reaches the age of majority.
In Iowa, a claim for the wrongful death of a minor is brought by the
parents under the authority of Iowa Rule of Civil Procedure 1.206, formerly
known as Rule 8. Claims of this type are known generally in Iowa as Rule 8
claims.
I.
Wrongful Death of a Minor (who may bring suit):

117
Iowa R. Civ. P. 1.206 provides as follows:

Rule 1.206. Injury or death of a minor
A parent, or the parents, may sue for the expense and actual
loss of services, companionship and society resulting from
injury to or death of a minor child.(emphasis added).
II.
Wrongful Death Damages:

1. Medical and other related expenses. Pre-death medical expenses are
recoverable under the expense element of Rule 1.206. See Iowa
Uniform Civil Jury Instruction No. 200.23 (2010).
2. Loss of earnings or wage earning capacity. As with any case
involving personal injury, this claim can be made. See Iowa Uniform
Civil Jury Instruction No. 200.8 (2010)(Loss of time-earnings).
3. Pain and suffering. Pre-death conscious pain and suffering is
recoverable. See Iowa Uniform Civil Jury Instruction No. 200.24
(Pre-Death Physical and Mental Pain and Suffering). See Poyzer v.
McGraw, 360 N.W.2d 748 (Iowa 1985); Lang v. City of Des Moines,
294 N.W.2d 557 (Iowa 1980); and Holmquist v. Volkswagen of
America, Inc., 261 N.W.2d 516 (Iowa App. 1977).
4. Present Worth of the Value of the Estate. The present value of the
additional amounts (minor) would reasonably be expected to have
accumulated as a result of his/her own effort from the date he/she
would have [reached age eighteen years][married] until he/she had
lived out the terms of his/her life. See Iowa Uniform Civil Jury
Instruction No. 200.27 (2010).
5. Punitive Damages. These claims are governed by Iowa Code
668A.1 (2010). That statute provides that punitive damages may be
awarded where by a preponderance of the clear, convincing and
satisfactory evidence, the conduct of the defendant from which the
claim arose constituted willful and wanton disregard for the rights or
safety of another. See Iowa Code 668A.1(1)(a)(2010). Under Iowa
law there is no proscription or prohibition against a minors claim for
punitive damages in a wrongful death case.
III.

a. Wrongful Death. Iowa Uniform Civil Jury Instruction No. 200.26.
If you find (name) as personal representative of the estate of (decedent) is
to recover damages, it is your duty to determine the amount. In doing so
you shall consider the following items:
118
1.
Pre-death Physical and Mental Pain and Suffering;
2.
Pre-death Loss of Full Mind and Body.
3.
Present Worth of Value of the Estate.
The amount you assess for [physical and mental pain and suffering][loss
of function of mind and body] cannot be measured by any exact or
mathematical standard. You must use your sound judgment based upon an
impartial consideration of the evidence. Your judgment must not be
exercised arbitrarily, or out of sympathy or prejudice, for or against the
parties. The amount you assess for any item of damage must not exceed
the amount caused by the defendant(s) as proved by the evidence.
A party cannot recover duplicate damages. Do not allow amounts
awarded under one item of damage to be included in any amount awarded
under another item of damage. [Similarly, damages awarded to one party
shall not be included in any amount awarded to another party.]
The amounts, if any, you find for each of the above items will be used to
answer the special verdicts.
b. Present Worth of Value of Estate Minor. Iowa Uniform Civil Jury
Instruction No. 200.27
The present value of additional amounts (minor) would reasonably be
expected to have accumulated as a result of [his][her] own effort from the
date [he][she] would have [reached age eighteen][married] until [he][she]
had lived out the terms of [his][her] life.
In determining this amount, you may consider:
1.
His/her life expectancy.
2.
His/her health, physical and mental condition.
3.
His/her habits as to industry, thrift and economy.
4.
His/her interest in school.
5.
His/her grades and attendance in school.
6.
The occupation of his/her parents.
7.
The uncertainties of life such as ill health, unemployment,
increased or decreased earning capacity as age advances.
8.
The amount of taxes, both federal and state, which would
be payable out of earnings.
119
9.
All other facts and circumstances bearing on the amount
he/she might have accumulated.
c. Elements Death of a Minor Rule 8 Claim. Iowa Uniform Civil
Jury Instruction No. 200.28.
If you find(father and/or mother) is entitled to recover damages as a
result of the death of (minor), it is your duty to determine the amount. In
doing so you shall consider the following items:
1.
The reasonable value of the past loss of services, which
include loss of companionship and society of the child, from the
date of death to [the present time][the date the child would have
[reached age eighteen years][married]] minus the probable cost of
the childs board and maintenance during that time period.
2.
The present value of the future loss of services, which
include loss of companionship and society of the child from the
present time until the child would have [reached age eighteen
years][married]] minus the present value of the probable cost of the
childs board and maintenance during that time period.
3.
The interest on the reasonable burial expenses of the child
from the time of death until the time those expenses would
normally be paid. The amount cannot exceed the reasonable cost
of the burial.
4.
The reasonable value of necessary [hospital charges][doctor
charges][prescriptions][other medical services] from the date of
injury to the time of death.
Items 1 and 2 include [loss of earnings of child][the economic or monetary
value of the childs labor where the child is not employed], as well as the
parents right to the intangible benefits of companionship, cooperation and
affection of the child. They do not include the parents mental anguish
caused by the childs death.
In determining loss of companionship and society, you may consider the
circumstances of the life of the child including:
1.
The childs age, health, strength, intelligence, character,
interests and personality.
2.
Activities in the household and community.
3.
All other facts and circumstances bearing on the issue.
The amount you assess for loss of services in the past and future cannot be
measured by an exact or mathematical standard. You must use your sound
120
judgment based upon an impartial consideration of the evidence. Your

judgment must not be exercised arbitrarily, or out of sympathy or
prejudice, for or against the parties. The amount you assess for any item
of damages must not exceed the amount caused by the defendant(s) as
proved by the evidence.
A party cannot recover duplicate damages. Do not allow amounts
awarded under one item of damage to be included in any amount awarded
under another item of damage. [Similarly, damages awarded to one party
shall not be included in any amount awarded to another party.]
See also Gookin v. Norris, 261 N.W,.2d 692 (Iowa 1978); Wardlow v. City
of Keokuk, 190 N.W.2d 439 (Iowa 1971).
Special evidentiary rule:
Pre-death loss of services is not an item recoverable by the estate. See
Madison v. Colby, 348 N.W.2d 202 (Iowa 1984).
121
KANSAS
Kara T. Stubbs
Michael J. Serra
Baker Sterchi Cowden & Rice LLC
Kansas City, Missouri
(816) 471-2121
I.
Economic Damages:
1. Medical Expenses. The fundamental principle of the law of damages
is that a person who suffers personal injuries because of the negligence
of another is entitled to recover the reasonable value of medical care
and expenses for the treatment of his or her injuries. See Bates v.
Hogg, 921 P.2d 249 (Kan. App. 1996). The reasonable value
of medical services is the measure used to determine damages to an
injured party in a personal injury matter. See Martinez v. Milburn
Enterprises, Inc., 233 P.3d 205 (Kan. 2010). This value is not
exclusively based on the actual amount paid or the amount originally
billed, though these figures certainly may constitute evidence as to the
reasonable value of medical services. See id.
2. Economic Loss. A defendant in any action is allowed to have amounts
allowed for future damages reduced to present worth where there are
reasonable grounds to expect that the amount awarded may be safely
and profitably invested. See Gannaway v. Missouri-Kansas-Texas Rld.
Co., 575 P.2d 566 (Kan. App. 1978). Evidence demonstrating how to
compute present worth, either by way of expert testimony or
appropriate mathematical tables or formulae, is admissible in any
action in which substantial future damages are claimed. See id.
Impairment of an injured party's capacity to earn is relevant in
calculating that party's loss of income. See Cerretti v. Flint Hills Rural
Electric Co-op Ass'n, 837 P.2d 330 (Kan. 1992). The amount of
damages to be awarded is determined by comparing what the injured
party was capable of earning at or before the time of the injury with
what the party is capable of earning after the injury. See Morris v.
Francisco, 708 P.2d 498 (Kan. 1985).
II.
1. Cap on Non-Economic Damages. K.S.A. 60-19a02 limits the
maximum allowable recovery for noneconomic loss to $250,000 in
any action for personal injuries.
122
2. Pain and suffering. In Kansas, the trial court can allow a plaintiff to
argue loss of enjoyment of life and instructed the jury that such a loss
is an element of disability, pain, and suffering. See Gregory v. Carey,
791 P.2d 1329 (Kan. 1990).
3. Disability. A disability may be a noneconomic loss or an economic
loss. See Cott v. Peppermint Twist Mgt. Co., 856 P.2d 906 (Kan.
1993). If damages are awarded for pain and suffering based upon a
disability, the disability is a noneconomic loss subject to a damages
cap. See id. If the damages award is for diminished earning capacity
based on that disability, the loss is economic and not subject to a
damages cap. See id.
4. Disfigurement. Disfigurement has been defined as that which impairs
or injures the beauty, symmetry or appearance of a person or thing,
that which renders unsightly, misshapen or imperfect, or deforms in
some manner. See Smith v. Marshall, 587 P.2d 320 (Kan.
1978). Evidence of a locking elbow which occurred frequently and
without warning meets the definition of disfigurement. See Ratterree
v. Bartlett, 707 P.2d 1063 (Kan. 1985).
III.
Jury Instructions
a.
171.02 Types of Damages AllowedPersonal Injury
When determining the amount of damages sustained by the plaintiff, you

must allow the amount of money that will reasonably compensate plaintiff
for his/her injuries and losses resulting from the occurrence in question.
These injuries and losses may include any of the following shown by the
evidence:
1.
MEDICAL EXPENSES. Medical expenses include the reasonable
expenses of necessary medical care, hospitalization and treatment received
as a result of plaintiff's injuries to date (and the medical expenses plaintiff
is reasonably expected to incur in the future) [reduced to present value].
2.
ECONOMIC LOSS. Economic loss includes loss of time or
income and losses other than medical expenses incurred as a result of
plaintiff's injuries to date (and the economic loss plaintiff is reasonably
expected to incur in the future) [reduced to present value].
3.
NONECONOMIC LOSS. Noneconomic loss includes pain,
suffering, disabilities, disfigurement and any accompanying mental
123
anguish suffered as a result of plaintiff's injuries to date (and the

noneconomic loss plaintiff is reasonably expected to suffer in the future).
When determining the amount of damages owed to the plaintiff you must
consider plaintiff's age and condition of health before and after the
occurrence in question. Also, you must consider the nature, extent and
duration of the plaintiff's injuries. There is no unit value and no
mathematical formula the court can give you for determining items such
as pain, suffering, disability, and mental anguish. You must establish an
amount that will fairly and adequately compensate the plaintiff. This
amount rests within your sound discretion.
You must itemize the amounts of damages awarded in this case on the
verdict form that will be given to you.
b.
171.04 Damages
Rendering Aid
for Increased
Injury Resulting from
If plaintiff sustained personal injury as a result of defendant's negligence,

then plaintiff may recover damages from defendant for any additional
harm which resulted from the efforts of (other persons)(a treating
physician) to render aid to plaintiff, so long as those efforts were not
performed in a negligent manner.
c.
171.40 Measure of DamagesPersonal or PropertyShort

Form
If you find for the plaintiff, then you must award plaintiff such sum as you
believe will fairly and justly compensate the plaintiff for the (injuries
and) damages you believe plaintiff sustained as a result of the occurrence
complained of by plaintiff.
d.
171.42 Duty to Mitigate Damages
In determining the amount of damages sustained by plaintiff, you should

not include any loss which plaintiff could have prevented by reasonable
care and diligence exercised by plaintiff after the loss occurred.
e.
171.43 Aggravation of Preexisting Condition
Plaintiff is not entitled to recover for any physical ailment, defect, or

disability that existed prior to the occurrence. However, if the plaintiff had
a preexisting physical ailment, defect or disability and you find this
condition was aggravated or made active causing increased suffering or
124
disability, then the plaintiff is entitled to recover for such increased

suffering and disability.
f.
171.44 Punitive Damages
In this case the plaintiff claims the defendant acted in a (willful) (wanton)
(fraudulent) (malicious) manner toward plaintiff. If you award the plaintiff
actual damages, then you may consider whether punitive damages should
be allowed. Punitive damages may be allowed in the jury's discretion to
punish a defendant and to deter others from like conduct.
Who owns the right to sue for medical expenses? Parent of child? If parent
does that end at the age of majority when it becomes childs claim?
Generally, the right to seek medical expense damages for an injured child
belongs to the parent. See Wilson v. Knight, 982 P.2d 400 (Kan. App. 1999). The
parents' cause of action for medical expenses can be shifted to the minor if: (1) the
minor child has paid or agreed to pay the expenses; (2) the minor child is legally
responsible for payment (emancipation, death or incompetency of the parents); (3)
if the parents waive or assign their right to recovery in favor of the minor; or (4)
when recovery of expenses is permitted by statute. See id. A parent can waive his
or her right to recover for damages properly belonging to the parent if these
damages are awarded in the child's action. A waiver will be considered sufficient
if it protects the defendant against the danger of double recovery. See Villa Ex.
Rel. Villa v. Roberts, 80 F.Supp.2d 1229, 1233 (D.Kan.2000). The waiver can
either be expressed formally or implied. See id.
A parent suing for consequential damages resulting to himself or herself
from a negligent injury to a minor child is not bound by a judgment rendered in a
prior action brought by the child, even if the parent, as guardian or next friend,
actually instituted the child's action. See Betz v. Farm Bureau Mut. Ins. Agency of
Kansas, Inc., 8 P.3d 756 (Kan. 2000).
Damages Recoverable in a Minors Wrongful Death Claim
I.
Economic Damages:
1. Loss of filial care, attention, or protection. Kansas wrongful death
statute does not preclude recovery of pecuniary damages for loss of
filial guidance, counsel, and similar services. See Cochrane v.
Schneider Nat. Carriers, Inc., 980 F.Supp. 374 (D. Kan. 1997). In
death of minor who lives with his parents, there is implication of
pecuniary loss. See Corman v. WEG Dial Tel., Inc., 402 P.2d 112
(Kan. 1965).
125
2. Loss of earnings you find the child would have contributed to the
parent(s) during the remainder of the child's lifetime. In Kansas,
inclusion of loss of future earnings of decedent within definition of
pecuniary losses in claim for wrongful death is proper. See K.S.A. 601903; see also Shinkle v. Union City Body Co., 1982, 94 F.R.D. 631
(D. Kan. 1982). Parents in wrongful death actions may recover
pecuniary damages for the death of their majority age children. See
Huffman v. Thomas, 994 P.2d 1072 (Kan.App.1999).
3. Expenses for the care of the deceased caused by the injury. A
recovery for the benefit of the next of kin against one whose wrongful
act has occasioned a death, the damages recovered by a father for the
death of his minor son may include compensation for expenditures
reasonably made for medical services and funeral expenses.
See Marshall v. Miller, 212 P. 883 (Kan. 1923); see also K.S.A. 601903.
4. Reasonable funeral expenses for the deceased. Under the Kansas
wrongful death statute, plaintiffs can recover nonpecuniary losses,
pecuniary
losses,
and
reimbursement
for
medical
and funeral expenses as damages. See Denton by Jamison v. United
States of America and Cushing Memorial Hospital, 1990 WL 98335
(D. Kan. July 3, 1990). Compensable damages to the heirs in a
wrongful death action include pecuniary as well as nonpecuniary
damages, such as loss of support, loss of companionship, and mental
anguish, sustained by the heirs on account of the decedent's death. See
Martin v. Naik, 228 P.3d 1092 (Kan. App., 2010); see also K.S.A. 601903.
II.
1. Cap on Damages. In any wrongful death action, the court or jury may
award such damages as are found to be fair and just under all the facts
and circumstances, but the damages, other than pecuniary loss
sustained by an heir at law, cannot exceed in the aggregate the sum of
$250,000 and costs. See K.S.A. 60-1903.
2. Mental anguish, suffering or bereavement. Damages are
recoverable under Kansas law only for pain and suffering which is
consciously experienced. See Sullivan v. U.S. Gypsum Co., 862
F.Supp. 317 (D. Kan. 1994). Award of damages for pain and suffering
was proper in action brought against electric company alleging
negligence in installing and maintaining high power line which caused
death of plaintiff's decedent; witness testified that decedent was
126
breathing and audibly moaning immediately after injury from power

line and later squeezed his wife's hand in response to her questions,
and officer testified that decedent was breathing and making
incoherent noises and appeared to be conscious. See Folks v. Kansas
Power and Light Co., 755 P.2d 1319 (Kan. 1988).
3. Loss of society, companionship, comfort or protection. In
determining damages for wrongful death of plaintiff's husband, jury
had right to consider mental anguish, suffering or bereavement, loss of
society, companionship, comfort or protection, loss of marital care,
attention, advice, or counsel in addition to loss of potential earning
capacity. See Duran v. Mission Mortuary, 258 P.2d 241 (Kan. 1953).
In passing upon adequacy of award to parent for death of child, not
only must pecuniary loss be taken into account, but consideration must
be given also to those intangibles of grief, anguish, suffering. See
Corman v. WEG Dial Tel., Inc., 402 P.2d 112 (Kan. 1965).
III.
Jury Instructions
a.
171.32 Wrongful Death of a Child
If you find plaintiff is entitled to recover damages, you should allow the
amount of money that will reasonably compensate plaintiff for the loss
caused by defendant. There are two types of damages you may award:
economic and noneconomic.
Economic damages include:
1.
2.
Loss of filial care, attention, or protection.

Loss of earnings you find the child would have contributed to the
parent(s) during the remainder of the child's lifetime.
3. Expenses for the care of the deceased caused by the injury.
4. Reasonable funeral expenses.
For items 1 and 2 above you should allow an amount that you believe
would be equivalent to the benefit plaintiff could reasonably have
expected to receive from the continued life of the deceased.
Noneconomic damages include:
1.
2.
Mental anguish, suffering, or bereavement.

Loss of society, loss of comfort, or loss of companionship.
127
For noneconomic damages there is no unit value and no mathematical

formula the court can give you. You should allow an amount that you find
to be fair and just under all the facts and circumstances.
You will be given a verdict form in which you must itemize the amount of
damages awarded for losses to date and the amount of damages awarded
for future losses.
128
KENTUCKY
Susan S. Wettle
FROST BROWN TODD LLC
Louisville, Kentucky
(502) 589-5400
Personal injury to a minor child gives rise to two causes of action: 1) an
action on behalf of the child for pain and suffering, permanent injury, and
impairment of earning capacity after majority; and 2) an action by the parent for
consequential damages including the loss of services and earnings during minority
and expenses incurred for necessary medical treatment for the child's injuries.
Kentucky Service Co. v. Miracle, 246 Ky. 797, 56 S.W.2d 521 (Ky. 1933).
I.
Economic Damages:
1. Medical Expenses. Past compensatory damages including reasonable
and necessary medical bills are recoverable when proven by a
preponderance of evidence. See generally, Ky. Cent. Ins. Co. v.
Schneider, 15 S.W.3d 373 (Ky. 2000).
2. Future Medical Expenses. Damages can be awarded for future
medical expenses. May v. Holzknecht, 320 S.W.3d 123 (Ky. App.
2010).
3. Loss of services and earnings of child.
a. Recovery by parents during minority of child. The parents of a
child under the age of eighteen may jointly maintain an action for
loss of the services or earnings of their child during his minority,
when the loss is occasioned by an injury wrongfully or negligently
inflicted on the child. K.R.S 405.010. If either the father or
mother is dead, or has abandoned the child, or has been deprived of
its custody by court decree, or refuses to sue, the other may sue
alone. Id.
b. Recovery of impairment of power to earn money after
reaching the age of majority. An injured child is entitled to
recover for the permanent impairment of his power to earn money
after becoming of age. Louisville Metro Housing Authority v.
Burns, 198 S.W.3d 147 (Ky. App. 2006). In Burns, the Court of
Appeals acknowledged that evidence of a child victims future
earnings may necessarily have some uncertainty, but questions
about the reliability of such evidence are more evidentiary than
substantive. It is a longstanding and well-established rule in this
Commonwealth that [p]ermanent impairment of earning power is
129
merely the test to be applied by the jury in determining the

compensation to be awarded for permanent injury. [Citation
omitted.] We know of no better vehicle for assisting the jury in
this regard than through the testimony of a qualified vocational and
rehabilitation expert, whose credentials and methodologies went
unchallenged in this case. Testimony concerning the future
prospects of a child victim necessarily involves some degree of
speculation, but that fact alone does not disqualify an infant
plaintiff from receiving an award.
4. Settlements. If a minors claim for personal injury is settled for an
amount equaling ten thousand dollars or less, exclusive of interest, the
person having custody of the child may settle the claim, subject to the
approval of the Court, without necessity of the appointment of a
formal guardian. K.R.S. 387.280. Settlements that exceed ten
thousand dollars require the appointment of a guardian pursuant to
K.R.S. 387.020 to settle the claim on behalf of the minor.
II.
1. Physical Pain and Suffering. Damages can be awarded for physical
and mental pain and suffering, along with future pain and suffering.
See generally, Ky. Cent. Ins. Co. v. Schneider, 15 S.W.3d 373 (Ky.
2000); May v. Holzknecht, 320 S.W.3d 123 (Ky. App. 2010). Future
pain and suffering is recoverable if there is evidence establishing that
it is reasonably certain that pain and suffering will occur. Id. at 128.
If future medical expenses are awarded by a jury, there is a strong
indication that a corresponding award for future pain and suffering
must be considered. [Citation omitted.] However, there is no rule to
suggest that where no future medical expenses are indicated, the jury is
precluded from making an award. The test is whether there is
evidence to indicate that the plaintiffs pain and suffering are likely to
continue to occur. Id. (Emphasis in original.)
2. Punitive Damages. K.R.S. 411.184(1) provides that a plaintiff shall
recover punitive damages only upon proving, by clear and convincing
evidence that the defendant acted toward the plaintiff with oppression,
fraud or malice. The Kentucky Supreme Court struck down that part
of the statute found at K.R.S. 411.184(1)(c) to the extent the definition
of malice required a finding of heightened subjective awareness by
the defendant. Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998). The
Court held that the right to recover punitive damages for gross
negligence using an objective reasonable person standard was a
jural right preserved and protected by Section 14 of the Kentucky
Constitution. Id. at 268-69.
130
III.
Jury Instructions
Kentucky does not have model instructions specific to damages

recoverable by a minor child, except for the parents recovery of lost services.
General Kentucky model instructions on damages provide:
a. Past and future pain and suffering 2-39 Palmore & Cetrulo,
Kentucky Jury Instructions 39.02 (Lexis 2011).
If you find for P you will determine from the evidence and award him a
sum of money that will fairly and reasonably compensate him for
whatever physical or mental suffering you believe from the evidence he
has sustained or is reasonably certain to endure hereafter as a direct result
of [the accident] [his injuries] not exceeding $ _________.
b. Medical expenses 2-39 Palmore & Cetrulo, Kentucky Jury
Instructions 39.06 (Lexis 2011).
sum of money that will fairly compensate him for whatever necessary and
reasonable expenses for medical services you believe from the evidence he
has incurred or is reasonably certain to incur hereafter as a direct result of
his injuries, not to exceed $_________.
c. Future lost earnings 2-39 Palmore & Cetrulo, Kentucky Jury
Instructions 39.08 (Lexis 2011).
sum of money that will fairly and reasonably compensate him for such
loss or impairment of his power to earn money in the future as you believe
from the evidence he has suffered directly by reason of [his injuries] [the
accident], not to exceed $_______.
d. Loss of services of a minor child 2-39 Palmore & Cetrulo, Kentucky
Jury Instructions 39.10 (Lexis 2011).
sum of money that will fairly and reasonably compensate him for
whatever loss of services and probable earnings of X [the child] prior to
Xs reaching the age of 18 you believe from the evidence P has sustained
and is reasonably certain to sustain in the future by reason of Xs injuries,
not to exceed $ _______.
131
A minor may sue for his/her medical expenses in personal injury lawsuits.
See, e.g., Elmore v. Speicher, 481 S.W.2d 673 (Ky. 1972); Adams v. Combs, 465
S.W.2d 288 (Ky. 1971).
Although K.R.S. 405.010 does not specifically provide for a parents right to
recover medical expenses incurred as a result of the childs injury, there is dicta
suggesting that the parent can recover such expenses. See Ky. Service Co. v.
Miracle, 56 S.W.2d 521 (Ky. 1933) (stating that parents can recover for the loss
of the infant's services until he reaches his majority, and for nursing and taking
care of him, and expenses for medicines and medical services.). See, also,
Blackburn v. Burchett, 335 S.W.2d 342, 343 (Ky. 1960) (Plaintiff takes the
position that an infant has one cause of action for his injuries and his parent has a
separate cause of action for loss of services and medical expenditures. This is
true.) Both cases were applying the predecessor statute to K.R.S. 405.010;
however the language of the prior statute was essentially the same as the current
statute and did not expressly provide for the parents recovery of medical
expenses. Ky. Stats., sec. 326a-1. In any event, it appears that the intent of K.R.S.
405.010 is to limit the parents recovery of damages to only those incurred before
the child reaches the age of eighteen.
I.
An action for wrongful death in Kentucky must be brought by the personal

representative of the deceased. K.R.S. 411.130. The parents of a minor child
may bring a separate action for loss of affection and companionship that would
have been derived from such child during its minority. K.R.S. 411.135.
II.

1. Loss to the estate. The action by the personal representative on may
recover may recover damages consisting of loss to the estate. In
addition to funeral expenses, this loss is generally measured by the
destruction of the deceaseds 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 deceaseds earning capacity. Southern Ry. Co. v.
Evans Admr., 63 S.W. 445, 446 (Ky. 1901).
2. Survival claims. Damages in a wrongful death action are intended to
compensate for damages caused by the death. K.R.S. 411.130. If the
deceased lived for some period of time between the injury and
resulting death, the damages suffered during that period are also
132
recoverable under a survival statute that allows the personal

representative to join the personal injury claims that the deceased
would have had with the wrongful death claim. K.R.S. 411.133. This
claim may include medical expenses, pain and suffering and lost
wages for the time between the injury and resulting death. Vitale v.
Henchey, 24 S.W.3d 651 (Ky. 2000). Kentucky courts have held that
an award for pain and suffering includes the element of loss of
enjoyment of life and therefore no separate jury instruction on hedonic
damages should be given. Transportation Cabinet, Dept. of Highways
v. Thurman, 897 S.W.2d 597 (Ky. Ct. App. 1995).
3. Punitive damages. The wrongful death statute specifically recognizes
the right to recover punitive damages if the death resulted from willful
or grossly negligent conduct. K.R.S. 411.130(1).
4. Loss of services of minor child. K.R.S. 411.135 allows parents to
recover for the loss of affection and companionship for the death of
a minor child. These damages are allowed for the period of time
between the injury and the time the child would reach the age of
maturity. Id. This statute creates a separate claim to be brought by the
parents and is not affected by what the personal representative does
with the general wrongful death claim allowable under K.R.S.
411.130. Dept. of Educ. v. Blevins, 707 S.W.2d 782 (Ky. 1986).
III.
Jury Instructions
General Model Instruction for Recovery of Wrongful Death Damages
2-39 Palmore & Cetrulo, Kentucky Jury Instructions 39.01 (Lexis
2011).
If you find for P you will determine the sum of money you believe
from the evidence will fairly and reasonably compensate Xs estate for
the destruction of her power to earn money, not exceeding $______,
together with funeral expenses not exceeding $_____.
Survival Action Damages under K.R.S. 411.133 and Parental
Recovery under K.R.S. 411.135 2-24 Personal Injury; Loss of Minor
Child Consortium 24.20 (Lexis 2011).
You will determine from the evidence and fix a sum or sums of money
that will fairly and reasonably compensate Xs estate for such of the
following damages as you believe from the evidence has been
sustained directly by reason of the accident, for
(1) Funeral expenses, not exceeding $_______;
133
(2) Destruction of his power to earn money after he would have

become 18 years of age, not exceeding $_________;
(3) Mental and physical pain and suffering of X between [the time
of the accident] and his death.
$______.
AND a sum or sums of money that will fairly and reasonably
compensate P2 and P3 [Xs mother and father] for such of the
following damages as you believe from the evidence they have
sustained directly by reason of Xs death:
(1) Loss of Xs services [prior to his reaching 18 years of age], not
exceeding $_______;
(2) Loss of affection and companionship that would have been
derived from X during his minority.
$______
134
LOUISIANA
C. Michael Hart
Taylor Porter Brooks & Phillips L.L.P.
Baton Rouge, Louisiana
(225) 387-3221
Damages Recoverable in a Minor's Personal Injury Action
In McGee v. A C And S, Inc., 933 So. 2d 770, 2005-1036 (La. 7/10/06),
the Louisiana Supreme Court provided the following summary of damages
generally recoverable under Louisiana law:
In Louisiana, delictual actions are governed by La. C.C. art. 2315,
which states that [e]very act of man that causes damage to another
obliges him by whose fault it happened to repair it. Thus, under
La. C.C. art. 2315, a tortfeasor must compensate a tort victim for
all of the damages occasioned by his act. The term damages
refers to pecuniary compensation, recompense, or satisfaction for
an injury sustained. Fogle v. Feazel, 201 La. 899, 909, 10 So.2d
695, 698 (1942). In the delictual context, La. C.C. art. 2315
authorizes *774 compensatory damages. Compensatory damages
encompass those damages designed to place the plaintiff in the
position in which he would have been if the tort had not been
committed. Frank L. Maraist & Thomas C. Galligan, Jr.,
LOUISIANA TORT LAW 7-1 (Michie 1996) (footnotes
omitted).
Compensatory damages are further divided into the broad
categories of special damages and general damages. Special
damages are those which have a ready market value, such that
the amount of the damages theoretically may be determined with
relative certainty, including medical expenses and lost wages,
while general damages are inherently speculative and cannot be
calculated with mathematical certainty. Id. 7-2 (footnotes
omitted). McGee v. A C And S, Inc., 933 So. 2d @ p.772
I.
Proper Party to Assert Claims on Behalf of a Minor:
The father is the proper plaintiff to sue to enforce a right of an

unemancipated minor who is born of the marriage of parents who are not divorced
or judicially separated. The mother is the proper plaintiff when the father is
mentally incompetent, committed, interdicted, imprisoned, or an absentee. With
the permission of the Court the mother may represent the minor whenever the
father fails or refuses to do so. An attorney appointed by the court having
jurisdiction over an unemancipated minor who is in the legal custody of the
135
Department of Children and Family Services is the proper plaintiff to sue to

enforce a right on behalf of that unemancipated minor. Louisiana Code of Civil
Procedure, art. 683.
II.
Economic Damages:
1. Property Damages - Property damages are recoverable.
2. Medical and Other Related Expenses Past and future medical
expenses or other related expenses related to an injury or death of a
minor are claims that belong to the parent or tutor, but which are
recoverable.
3. Loss of Wages or Diminished Future Earning Capacity - Loss of
Wages or Diminished Future Earning Capacity is a recoverable
expense. See Bowens v. Patterson, 716 So.2d 69, 97-876 (La. App. 3
Cir. 6/3/98).
III.
1. Loss of Enjoyment of Life - Louisiana does allow recovery of
damages for loss of enjoyment of life in a personal injury brought on
behalf of a minor. McGee v. A C And S, Inc., 933 So. 2d @ p.772
2. Pain and Suffering, Emotional Distress, and Mental Anguish are
all recoverable damages (Louisiana Civil Code Art. 2315)
3. Exemplary (Punitive) Damages Louisiana law provides for
recovery of exemplary damages under limited circumstances, but
which include claims where:
a.
b.
c.
Proof that the injuries were caused by an act of

pornography involving juveniles (La. Civil Code Article
2315.3).
Damages caused by a defendant whose intoxication while
operating a motor vehicle was a cause in fact of the
resulting injuries. (La. Civil Code Article 2315.4).
Damages caused by criminal sexual activity occurring
during childhood - Exemplary (Punitive) damages can be
recovered for criminal sexual activity which occurred when
the victim was seventeen years or younger, regardless of
whether the defendant was prosecuted for his or her acts
(La. Civil Code Article 2315.7)
4. Damages caused by injury to another (bystander injuries)

Louisiana does allow recover of damages by one who is outside of a
136
zone of danger who views an accident causing injury to another

person or who may come upon the scene of the accident soon after the
occurrence of the accident. Bystander recovery is limited to specified
close relationships to the injured person, and which includes parents,
grandparents, children, grandchildren, siblings, and spouses. (La Civil
Code Article 2315.6).
I.
Wrongful Death Statute
The right to assert a claim for the wrongful death of a minor is outlined in
Louisiana Civil Code Art. 2315.2, which provides as follows:
If a person dies due to the fault of another, suit may be brought by
the following persons to recover damages which they sustained as
a result of the death:
(1) The surviving spouse and child or children of the deceased, or
either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of
them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of
them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased,
or any of them, if he left no spouse, child, parent, or sibling
surviving.
A. Economic Damages:
1. Property damages are recoverable
2. Funeral, medical, and other related expenses are recoverable
3. Future earning capacity - Recovery of future lost wages by a parent
are generally considered to be inherently speculative and may not
be recovered in a wrongful death claim of a minor.
B. Non-Economic Damages:
1. Loss of Enjoyment of Life - Louisiana does not allow recovery of
damages for loss of enjoyment of life in the wrongful death claim for a
minors death. See, McGee v. A C And S, Inc., 933 So. 2d 770, 780,
2005-1036 (La. 7/10/06),
137
2. Pain and Suffering, Emotional Distress, and Mental Anguish

suffered by the parents are all recoverable damages by the parents
recovery of exemplary damages under limited circumstances, but to
include:
a.

2315.3)
b.

resulting injuries. (La. Civil Code Article 2315.4)
c.


Code Article 2315.6)
II.
Survival Action
If a person who has been injured by the tort of another dies, the right to
recover all damages for injury to that person and his property shall survive for one
year, and may be brought by the following classifications of individuals set forth
in Louisiana Civil Code Art. 2315.1:
1.
The surviving spouse and child or children of the deceased, or

either the spouse or the child or children.
2.
The surviving father and mother of the deceased, or either of them

if he left no spouse or child surviving.
3.
The surviving brothers and sisters of the deceased, or any of them,

if he left no spouse, child, or parent surviving.
138
4.
The surviving grandfathers and grandmothers of the deceased, or

any of them, if he left no spouse, child, parent, or sibling surviving
A. Economic Damages:
1. Property damages are recoverable
2. Funeral, medical, and other related expenses are recoverable
3. Future earning capacity - Recovery of future lost wages by a parent
are generally considered to be inherently speculative and may not
be recovered in a wrongful death claim of a minor.
B. Non-Economic Damages:
1. Loss of Enjoyment of Life - Louisiana does not allow recovery of
damages for loss of enjoyment of life in the wrongful death claim for a
minors death. See, McGee v. A C And S, Inc., 933 So. 2d 770, 20051036 (La. 7/10/06).
2. Pain and Suffering, Emotional Distress, and Mental Anguish
suffered by the parents are all recoverable damages by the parents.
recovery of exemplary damages under limited circumstances, but to
include:
a.

2315.3)
b.

resulting injuries. (La. Civil Code Article 2315.4)
c.


139

Code Article 2315.6).
140
MAINE
Martha C. Gaythwaite
Marie J. Mueller
Friedman Gaythwaite Wolf & Leavitt
Portland, Maine
(207) 761-0900
I.
Economic Damages
1. Medical and Related Expenses. The minors parent is entitled to
recover for the reasonable value of medical and nursing services
incurred in treating the childs injury, even those provided gratuitously
by the parent. Roberts v. Tardif, 417 A.2d 444 (Me. 1980).
2. Loss of Earnings. Loss of earnings damages are available for an
injury to a child. Roberts v. Tardif, 417 A.2d 444 (Me. 1980) (the
evidence supported a finding that a childs injury during birth would
result in continued impairment in the use of her left arm). Maine has
not outlined a specific standard that a minor plaintiff must satisfy to be
entitled to such damages. However, in a case involving a plaintiff
injured at the age of 18, the court stated: Direct and specific evidence
of the extent of the impairment, measured in money, is not
necessarythe assessment of damages for impairment of earning
capacity rests largely upon the common knowledge of the jury or other
fact-finder, sometimes with little aid from evidence; helpful evidence
is admissible, although it does not furnish any mathematical valuation
of the impairment. Kaler v. Webster, 348 A.2d 702, 703 (Me. 1975),
quoting Goldstein v. Sklar, 216 A.2d 298, 309 (Me. 1966). However,
the mere showing of permanent impairment of some sort does not
automatically entitle a plaintiff to a loss of earnings instruction; the
quantum of evidence needed may vary from case to case, often
depending on the vocation or circumstance of the plaintiff. Kaler, 348
A.2d at 703.
II.
Noneconomic Damages
1. Hedonic Damages. Under this general category, a plaintiff can
recover for fear, pain, discomfort, anxiety or other mental or
emotional distress, including the loss of enjoyment of life. SeaburyPeterson 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
141
of life. Smith v. Central Maine Power Co., 2008 WL 7873357 (Me.

Super. Nov. 6, 2008); Neak v. Cascade Construction, Inc., 2001 WL
1710708 (Me. Super. July 20, 2001).
3. Permanent Impairment. Permanent Impairment damages are
available for an injury to a child. Roberts v. Tardif, 417 A.2d 444
(Me. 1980) (the evidence supported a finding that a childs injury
during birth would result in continued impairment in the use of her left
arm).
4. Loss of Services. The parents of a minor child jointly may maintain
an action for loss of the services or earnings of that child when that
loss is caused by the negligent or wrongful act of another. If one
parent refuses to sue, the other may sue alone. 14 M.R.S.A. 303
5. Punitive Damages. Common law punitive damages may be available
in Maine for tortious conduct resulting in injury when the defendant
acts with malice. Tuttle v. Raymond, 494 A.2d 1353 (see jury
instruction below for standard).
6. Loss of Consortium is NOT recoverable. Loss of consortium
damages are not available to parents based on injuries suffered by their
child. Maine limits loss of consortium damages to spousal
relationships. 14 M.R.S.A. 302; Ms. K. v. City of South Portland,
407 F.Supp.2d 290, 299 (D. Me. 2006).
7. Emotional Distress is NOT recoverable. Generally, when the
personal injury tort already permits recovery for emotional suffering, a
separate claim for negligent infliction of emotional distress is
subsumed in that award. Curtis v. Porter, 2001 ME 158, 19, 784
A.2d 18, 26.
III.
Jury Instructions from Maine Jury Instruction Manual, 4th Edition

a. Medical Expenses 7-08
Medical expenses includes the reasonable value of medical services
including; examination and care by doctors and other medical personnel,
hospital care and treatment, medicine and other medical supplies shown
by the evidence to have been reasonably required and actually used in
treatment and care of the plaintiff, plus a sum to compensate the plaintiff
for any medical care, medicines and medical supplies which you find are
reasonably certain to be required for future treatment and care of the
plaintiff caused by the defendants negligence.
142
b. Lost Wages and Earning Power 7-109

A sum to compensate the plaintiff for wages [earnings] which the plaintiff
has lost because of the defendants negligence, plus a sum to reasonably
compensate the plaintiff for any loss of wages [earnings], which you find
that the plaintiff is reasonably certain to suffer in the future because of the
defendants 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 defendants negligence and for any pain,
suffering, mental anguish [and loss of enjoyment of life] which you find
that the plaintiff is reasonably certain to suffer in the future because of the
defendants negligence.
d. Permanent Impairment 7-112
A sum which will compensate plaintiff reasonably for any permanent
impairment which you find to be proximately caused by the defendants
negligence. Permanent impairment is injuries which result in permanent
loss, loss of use, restriction of motion or impairment of some member or
system of the plaintiffs body for the rest of his/her life.
It has been stipulated that a person of the plaintiffs age, in good health,
has a life expectancy of __ years. You may apply a life expectancy to any
determination you make regarding permanent impairment. And you may
apply this life expectancy if you find the plaintiff meets the stipulated
criteria of age and health.
e. Punitive Damages 7-114
If you find that [the plaintiff] sustained damages caused by the defendants
[conduct on which the finding of liability was based], you may consider
separately whether you should award [the plaintiff] punitive damages.
The function of punitive damages, if any are justified, is to award the
plaintiff a sum that reflects the reprehensibility of the defendants conduct
and bears a reasonable relationship to the harm the plaintiff suffered.
You may award punitive damages only if you find that the plaintiff has
proven, by clear and convincing evidence, that the defendant acted with
malice.
Malice means that the defendants conduct was motivated by ill will
towards the plaintiff [or that the defendant engaged in deliberate conduct
which, while motivated by something other than ill will toward any
143
particular person, is so reprehensible that malice toward a person injured

as a result of the conduct can be implied. To meet this standard of implied
malice, the conduct at issue must be such that it would almost certainly
result in damages to the plaintiff].
The clear and convincing evidence standard is a higher standard than the
preponderance of the evidence standard necessary to prove [the original
liability claim]. To find facts proven by clear and convincing evidence,
you must have an abiding conviction that it is highly probable that the
facts that the plaintiff must prove are the correct view of the events at
issue.
If you find that plaintiff has proven, by clear and convincing evidence, that
defendant acted with malice, then you must decide whether punitive
damages should be awarded and the amount of such damages. In deciding
whether to award punitive damages and in determining the amount of any
such damages, you may consider [the following:]
[1.]
All aggravating and mitigating factors indicated by the
evidence, including the reprehensibility of the defendants conduct
toward the plaintiff. In evaluating reprehensibility, you may
consider the extent to which, if at all, the conduct that harmed the
plaintiff also posed a substantial risk of harm to the general public.
[And] 2. [Any criminal punishment that may have been imposed
for the conduct in question. When a criminal punishment has been
imposed, it may be considered as mitigating the amount of
damages].
The amount of punitive damages that you award must be reasonably
related to the harm to the plaintiff, including the harm caused by the
reprehensibility of the defendants conduct [and the ability of the
defendant to pay such an award].
[A] parent or guardian [is entitled] to recover for medical expenses
incurred in treating the minors injuries. Woodbury v. Hammond Lumber Co.,
2003 WL 1665251 (Me. Super. Mar. 10, 2003), see Roberts v. Tardif, 417 A.2d
444 (Me. 1980). A parent is entitled to recover for reasonable medical and
nursing expenses incurred in treating the childs injury, even if they are
gratuitously supplied by the parent. Roberts v. Tardif, 417 A.2d 444 (Me. 1980).
144
Maines Law Court has not addressed exceptions to this general rule in
which a minor may be able to recover for their pre-majority medical expenses.
However, in Woodbury v. Hammond Lumber Co., 2003 WL 1665251 (Me. Super.
Mar. 10, 2003), a Maine Superior Court has cited to Maines Doctrine of
Necessaries, and ruled that a minor may be obligated to pay their own premajority medical expenses (and therefore recover for their payment) if they can
demonstrate that their parent is either unable or unwilling to pay for necessary
expenses. Woodbury v. Hammond Lumber Co., 2003 WL 1665251 (Me. Super.
Mar. 10, 2003).
I.
Economic Damages Available

1. Medical Expenses. The jury may give damages that will compensate
the estate for reasonable expenses of medical, surgical and hospital
care and treatment. 18-A M.R.S.A. 2-804(b).
2. Funeral Expenses. The jury may give damages that will compensate
the estate for reasonable funeral expenses. 18-A M.R.S.A. 2-804(b).
3. Lost Earnings. 2009 revisions to the statute permit full recovery of
the decedents 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).
II.
1.
Hedonic Damages. The jury may give damages not exceeding

$500,000 for the loss of comfort, society and companionship of the
deceased, including any damages for emotional distress arising from
the same facts as those constituting the underlying claim, to the
persons for whose benefit the action is brought. 18-A M.R.S.A. 2804(b). The applicable damages cap is that in effect at the time of the
accident or event giving rise to the cause of action. Carter v. Williams,
792 A.2d 1093, 1097, 2002 ME 50, 7.
Those pursuing claims under the wrongful death statute cannot make
separate emotional distress claims arising from the same facts.
Plaintiffs may not circumvent the statutes damage cap by bringing a
separate emotional distress claim. Carter v. Williams, 792 A.2d
1093, 1098-9, 2002 ME 50, 14, 19. One parents claim of loss of
consortium based on the others emotional injuries from the accident
was also precluded, as the emotional distress arose from the same facts
145
as the wrongful death claim. Carter, 792 A.2d at 1100, 2002 ME 50,
25.
2. Punitive Damages. The jury may give punitive damages not
exceeding $250,000, if warranted by the facts of the case. 18-A
M.R.S.A. 2-804(b).
3. Pain and Suffering. Whenever death ensues following a period of
conscious suffering, as a result of personal injuries due to the wrongful
act, neglect or default of any person, the person who caused the
personal injuries resulting in such conscious suffering and death shall,
in addition to the action at common law and damages recoverable
therein, be liable in damages in a separate count in the same action for
such death, brought, commenced and determined and subject to the
same limitation as to the amount recoverable for such death and
exclusively for the beneficiaries in the manner set forth in subsection
(b), separately found, but in such cases there shall be only one
recovery for the same injury. 18-A M.R.S.A. 2-804(c). Damages
for pain and suffering and for loss of enjoyment of life are limited to
the period of survival that may exist between the alleged negligent
event and the time of decedents death. Phillips v. Eastern Maine
Medical Center, 565 A.2d 306 (Me. 1989).
4. Loss of Full Life Expectancy is NOT recoverable. Loss of full life
expectancy is not a recoverable element of damages under the
wrongful death statute. Phillips v. Eastern Maine Medical Center, 565
A.2d 306 (Me. 1989).
III.
Jury Instructions from Maine Jury Instruction Manual, 4th Edition

7-12 Burden of Proof Wrongful Death/Comparative Negligence
[The plaintiff] has the burden of proof in this case. This means that [the
plaintiff] must convince you that each of the elements of [her] claim are
proven more likely than not. To find for the plaintiff you must determine
that the facts that [she] must prove are more likely true than not true.
In this case, in addition to [the plaintiffs] negligence and damages claims
that must be proven more likely than not, [the defense] contends that
negligence by [the deceased] was a cause of the collision. [The defendant]
must prove that it is more likely than not that [the deceased] was negligent
and that [the deceaseds] negligence was a cause of the collision. In
deciding whether any fact has been proven more likely than not, you
should consider the testimony of all witnesses, regardless of who
presented them, and all exhibits received in evidence, regardless of who
produced them.
146
To the extent the same types of damages are available, the instructions
listed in Part III above are also applicable in a Wrongful Death
action.
147
MARYLAND
Sidney G. Leech
Christopher R. Corchiarino
Goodell, DeVries, Leech & Dann, LLP
Baltimore, Maryland
(410) 783-4000
I.
Economic Damages:
1.
Medical and other related expenses. The parents or guardians of

the child may pursue a claim for medical expenses incurred while
treating the minors injuries. Id. at 693-94. However, the child
may bring a claim to recover the medical expenses on his own
accord upon demonstration that he or his estate will be individually
responsible to pay for the medical expenses: (1) by emancipation,
(2) by death or incompetence of his or her parents, (3) as
necessaries for which his or her parents are unable or unwilling to
pay, or (4) by operation of a statute. Id. at 694 (quoting Garay v.
Overholtzer, 332 Md. 339, 374, 631 A.2d 429 (1993)). More often
than not, juries will have to decide with the aid of expert and lay
testimony when necessary, whether and to what extent an injured
child's medical necessaries exceed the financial ability of the
parents. Johns Hopkins Hosp. v. Pepper, 346 Md. 679, 701, 697
A.2d 1358, 1369 (1997). Medical expenses may include necessary
and reasonable expenses for hospital services, medical attention,
medicine, and nurses. Plank v. Summers, 203 Md. 552, 562, 102
A.2d 262 (1954). A plaintiff may also recover future medical
expenses. Naughton v. Bankier, 114 Md. App. 641, 657-58, 691
A.2d 712 (1997).
Damages for medical expenses require evidence that the medical
services provided were necessary and caused by the negligence of
the defendant. Desua v. Yokim, 768 A.2d 56, 59 (Md. 2001)
(citing Metropolitan Auto Sales v. Koneski, 249 A.2d 141, 147
(Md. 1969); Strong v. Prince Georges County, 549 A.2d 1142,
1145 (Md. App. 1988)). Additionally, there must be evidence that
the amount charged for the medical services was fair and
reasonable. Desua, 768 A.2d at 5859 (citing Shpigel v. White,
741 A.2d 1205, 1211 (1999)). Mere evidence of the amount
charged or payment tendered for the medical services is
insufficient to establish the reasonableness of the value of the
medical services. Desua, 768 A.2d at 59 (quoting Kujawa v.
Baltimore Transit Co., 167 A.2d 96, 102 (1961)).
148
II.
2.
Lost wages or impairment of earning capacity. A plaintiff can

recover damages for lost wages. Smith v. Borello, 804 A.2d 1151,
1154 (Md. 2002). An injured person may recover for any loss,
impairment, or diminution of his earning capacity as a
consequence of his injury. Anderson v. Litzenberg, 115 Md. App.
549, 572, 694 A.2d 150 (1997). Impairment of earning capacity is
measured by the lost capacity to earn, rather than what a person
would have earned, i.e., lost wages. Id. Moreover, [b]ecause
impairment of earning capacity is not measured by what the
claimant actually earned . . . a plaintiff can recover for impairment
of earning capacity without establishing a prior track record of
earnings. Lewin Realty III, Inc. v. Brooks, 138 Md. App. 244,
282, 771 A.2d 446 (2001) (quoting Anderson, 115 Md. App. at
575). Damages for loss of future earnings may be reduced to
present value. Walston v. Sun Cab Co., 298 A.2d 391, 399400
(Md. 1973), aff'd, Sun Cab Co. v. Walston, 289 A.2d 804 (Md.
App. 1972) (wrongful death action); Dennis v. Blanchfield, 428
A.2d 80, 85 (Md. App.1981), modified on other grounds sub. nom.
Blanchfield v. Dennis, 438 A.2d 1330 (Md. 1982) (personal injury
action). It is a defendant's burden to ensure the foundation has been
laid for a downward adjustment of an award to present value.
Lewin Realty III, Inc. v. Brooks, 771 A.2d 446, 477 (Md. App.
2001). Similarly, it is a plaintiff's burden to produce economic
evidence for an upward adjustment of a damage calculation, for
example an adjustment for inflation. Lewin Realty III, 771 A.2d at
477. No instruction to modify the value of the award can be given,
however, if there is no testimony in the case to support it. Baublitz
v. Henz, 535 A.2d 497, 501 (Md. App. 1988).
3.
Property Damage. Property damages are recoverable.
4.
Collateral Source. The collateral source rule allows full recovery

of all provable damages, regardless of the amount of
compensation which the person has received for his injuries from
sources unrelated to the tortfeasor. Haischer v. CSX Transp., Inc.,
848 A.2d 620, 627 (Md. 2004) (citing Motor Vehicle Admin. v.
Seidel, 604 A.2d 473, 481 (Md. 1992)).
1. Statutory Cap. First enacted in 1986, Maryland Code, Courts and
Judicial Proceedings 11-108, governs the statutory cap on
noneconomic damages related to personal injury or wrongful death
claims. Effective October 1, 1994, the cap on noneconomic damages
in personal injury cases was raised to $500,000 and the cap was also
149
amended to apply to wrongful death cases. The cap has increased

$15,000 per year since October 1, 1995. The effective date for the
Maryland Cap Statute is when a cause of action arises. A cause of
action arises when the facts to support each element of the cause of
action exist and not when the cause of action is discovered. The
burden of proof to show that the statutory cap is inapplicable rests with
the plaintiff. John Crane, Inc. v. Scribner, 800 A.2d 727, 742 (Md.
2002). The cap is inapplicable to intentional torts and punitive
damages.
2. Medical Injury Cap. The Maryland Patients' Access to Quality
Healthcare Act of 2004 provides that an award of noneconomic
damages for a cause of action arising between January 1, 2005 and
December 31, 2008 may not exceed $650,000. Since January 1, 2009,
the limitation on noneconomic damages increases annually by
increments of $15,000. Md. Code Ann., Cts. & Jud. Proc. 3-2A-09.
3. Physical pain and suffering. Physical or bodily pain and suffering
may constitute a proper element of damages and in awarding such
damages, a jury may take into consideration the effect on the health of
the person injured, the future effect on the health of the person injured,
and any resulting inconvenience that person may suffer. Baltimore
City Passenger Ry. Co. v. Kemp, 61 Md. 74 (1883).
4. Disfigurement. Disfigurement may be considered as an element of
damages in assessing past and prospective damages when the injury is
permanent. White v. Parks, 154 Md. 195, 72-73, 140 A. 70 (1928).
5. Mental pain and suffering. A plaintiff may recover for emotional
distress or mental anguish only when such damages are accompanied
by an actual physical injury or are capable of objective determination.
See, e.g., Beynon v. Montgomery Cablevision Ltd. Pship, 351 Md.
460, 463-64, 718 A.2d 1161 (1998).
6. Punitive or exemplary damages. Under Maryland law, a court may
award punitive damages only upon a showing of actual malice, plead
and proven by clear and convincing evidence. French v. Hines, 182
Md. App. 201, 248-49, 957 A.2d 1000 (2008). The Maryland Court of
Special Appeals has defined actual malice as, an act intentionally
performed without legal justification or excuse, but with an evil or
rancorous motive influenced by hate, the purpose being to deliberately
and willfully injure the plaintiff. Id. at 249 (quoting Shoemaker v.
Smith, 353 Md. 143, 163, 725 A.2d 549 (1999) (internal quotations
omitted)). Actual malice encompasses only conscious and deliberate
wrongdoing and not reckless, wanton, or grossly negligent conduct.
Scott v. Jenkins, 345 Md. 21, 32-34, 690 A.2d 1000 (1997)
(superseded on other grounds by Rule as stated in Hoile v. State, 404
150
Md. 591, 948 A.2d 30 (2008)). In a product liability action, the

plaintiff must demonstrate the following to recover punitive damages:
(1) that the defendant actually knew of the defect and danger of the
product at the time it left the defendant's possession, and (2) that the
defendant consciously or deliberately disregarded the potential harm to
consumers. See Bowden v. Caldor, Inc., 710 A.2d 267, 276-77 (Md.
1998).
III.

a.
Compensatory Damages for Bodily Injury MPJI-Cv 10:2
In an action for damages in a personal injury case, you shall

consider the following:
(1) The personal injuries sustained and their extent and
duration;
(2) The effect such injuries have on the overall physical and
mental health and well-being of the plaintiff;
(3) The physical pain and mental anguish suffered in the
past and which with reasonable probability may be
expected to be experienced in the future;
(4) The disfigurement and humiliation or embarrassment
associated with such disfigurement;
(5) The medical and other expenses reasonably and
necessarily incurred in the past and which with reasonable
probability may be expected in the future;
(6) The loss of earnings in the past and such earnings or
reduction in earning capacity which with reasonable
probability may be expected in the future.
In awarding damages in this case you must itemize your verdict or
award to show the amount intended for:
(1) The medical expenses incurred in the past;
(2) The medical expenses reasonably probable to be
incurred in the future;
(3) The loss of earnings and/or earning capacity incurred in
the past;
(4) The loss of earnings and/or earning capacity reasonably
probable to be expected in the future;
151
(5) The Noneconomic Damages sustained in the past and

reasonably probable to be sustained in the future. All
damages which you find for pain, suffering, pre-impact
fright, inconvenience, physical impairment, disfigurement,
loss of consortium, or other nonpecuniary injury are
Noneconomic Damages;
(6) Other damages.
b.
Punitive Damages Generally MPJI-Cv 10:13
If you find for the plaintiff and award damages to compensate for
the injuries (losses) suffered, you may go on to consider whether to
make an award for punitive damages. A claim for punitive
damages must be proved by clear and convincing evidence.
An award for punitive damages should be:
(1) In an amount that will deter the defendant and others
from similar conduct.
(2) Proportionate to the wrongfulness of the defendant's
conduct and the defendant's ability to pay.
(3) But not designed to bankrupt or financially destroy a
defendant.
c.
Third Partys Liability to Parent for Tortious Injury to
Child MPJI-Cv 21:6
A person who injures a child is responsible to the childs parent for
the parent's loss of the childs services and the parent's expenses
incurred in treating the child until the child attains the age of
eighteen or is otherwise emancipated. The parent may not recover
for the pain and suffering sustained by the child.
d.
Third Partys Liability to Parent for Childs Services
MPJI-Cv 21:5
A parent is entitled to the earnings of a minor child unless the
parent has waived or forfeited that right or the child has been
emancipated.
I.
Wrongful Death of a Minor (who may sue)

152
A tortious injury to a minor child gives rise to a cause of action for the
child, brought on behalf of the child by a parent, guardian, or next friend, for
injuries suffered by the child. Arrabal v. Crew-Taylor, 159 Md. App. 668, 693,
862 A.2d 431 (2004) (abrogated on other grounds by McQuitty v. Spangler, 410
Md. 1, 976 A.2d 1020 (2009)).
II.
Maryland's wrongful death statute (Md. Code Ann., Cts. & Jud. Proc. 3901, et seq.) and survival statute (Md. Code Ann., Est. & Trusts 7-401) provide
two separate causes of action. See Globe Am. Cas. Co. v. Chung, 547 A.2d 654,
65961 (Md. App.), vacated on other grounds, 589 A.2d 956 (Md. 1991).
Damages in a wrongful death action measure the harm to others caused by the
death of the victim, and a survival action measures the harm to the victim after the
injury and prior to the death. See ACandS, Inc. v. Asner, 657 A.2d 379, 39798
(Md. App.), rev'd on other grounds and remanded, 686 A.2d 250 (Md. 1996).
1. Economic Damages. Damages for future loss of earnings are based
upon the victims pre-tort life expectancy and may take into
consideration the decedents age, health, and occupation, and the
comfort and support afforded his or her family at the time of death.
Damages for loss of future earnings are not recoverable in a survival
action but are recoverable in a wrongful death suit. See Jones v.
Flood, 702 A.2d 440, 44243 (Md. App.), aff'd, 716 A.2d 285 (Md.
1998).
2. Non-economic Damages. In a wrongful death action the beneficiaries
may recover, in addition to pecuniary loss, solatium damages for
mental anguish, emotional pain and suffering, loss of society,
companionship, comfort, protection, marital care, parental care, filial
care, attention, advice, counsel, training, guidance or education where
applicable. Md. Code Ann., Cts. & Jud. Proc. 3-904(d). The
statutory cap on noneconomic damages applies to wrongful death
actions. See Anchor Packing Co. v. Grimshaw, 692 A.2d 5, 1314
(Md. App.), vacated on other grounds and remanded, 713 A.2d 962
(Md. 1998).
3. Punitive damages. Punitive damages are not recoverable in a
wrongful death action because the rights of the plaintiff in such an
action are created by statute and that statute, Md. Code Ann., Cts. &
Jud. Proc. 3-904, specifically limits the recoverable damages. See
Smith v. Gray Concrete Pipe Co., 267 Md. 149, 158-59, 297 A.2d 721
(1972).
153
4. Pre-Impact Fright. The victim's estate may recover pre-impact

fright damages in a survival action because the victim would be
entitled to recover such damages had he or she survived. See
generally University of Maryland Med. Sys. Corp. v. Malory, 795 A.2d
107 (Md. App. 2001), cert. denied, 796 A.2d 696 (Md. 2002).
III.
Jury Instruction:
Damages Parent of Deceased Child MPJI-Cv 10:23
In determining the damages which will reasonably and adequately
compensate each parent as a result of the death of their child you
shall consider both economic and noneconomic losses.
The economic losses to be considered are any financial benefits a
parent probably would have been expected to receive from the
deceased child.
The noneconomic losses to be considered are the mental anguish,
emotional pain and suffering, and the loss of society,
companionship, comfort, protection, care, attention, advice,
counsel or guidance, a parent has experienced or probably will
experience in the future.
154
MASSACHUSETTS
David A. Barry
Andrew R. Levin
Sugarman, Rogers, Barshak & Cohen, P.C.
Boston, Massachusetts
617-227-3030
As a general matter, recovery of damages by a minor for personal injuries
is no different than recovery of damages by any other plaintiff in an action for
personal injuries.
I.
Economic Damages:
1. Medical and Other Related Expenses. Medical, or other related
expenses incurred as a result of such wrongful or negligent act or
omission or breach of warranty are recoverable by a minor. See, e.g.,
Detore v. Demers Bros., 312 Mass. 531, 533 (1942).
2. Lost Wages. Loss of wages (or loss of earning capacity) is
recoverable by a minor bringing a personal injury claim. See Zarba v.
Lane, 322 Mass. 132, 135 (1947); Cross v. Sharaffa, 281 Mass. 329
(1933) (acknowledging difficulty in asking a jury to place a monetary
value upon a minors diminished earning capacity, but permitting a
jury to do so provided that the award is not based upon pure
conjecture).
3. Lost Earning Capacity. A disabling injury that results in a
permanent impairment may be considered by the jury in determining
the loss of earning capacity even when there has been no direct
evidence as to the amount of loss of earning capacity that will result
from the impairment. See, e.g., Cross v. Sharaffa, 281 Mass. 329
(1933).
4. Property Damages. Property damages are recoverable by a minor.
II.
1. Physical Pain and Suffering. Generally, the measure of damages in a
negligence action for personal injuries is fair compensation for the
resulting injuries, which include pain and suffering. Donovan v. Philip
Morris USA, Inc., 455 Mass. 215, 222-23 (2009).
155
2. Hedonic Damages. While loss of enjoyment of life is an element of

hedonic damages that is recoverable in a minors personal injury
action, loss of enjoyment of life is not available to plaintiffs who are
not cognitively aware of the loss suffered. Keene v. Brigham &
Women's Hosp., Inc., 56 Mass. App. Ct. 10, 29, 775 N.E.2d 725, 739
(2002) (A predicate for noneconomic damages has always been a
showing that the plaintiff has actually experienced or will actually
experience that item of damages in the future. Consistent with that
approach is the [Massachusetts courts] conclusion that to be entitled
to this item of damage, the plaintiff must possess a cognitive
awareness of his loss.). In addition, to the extent that various aspects
of hedonic damages overlap (i.e., to the extent that the categories of
pain and suffering or permanent disability overlap with loss of
enjoyment of life experiences), duplicative damages must be avoided.
Id.
3. Disfigurement. The right of a minor to recover for disfigurement is
settled under Massachusetts Law. See Taber v. Tenovsky, 313 Mass.
324, 325 (1943). See also Barrett v. Bucciarelli, 11 Mass.L.Rptr. 569
(2000).
expense. See Mirageas v. Massachusetts Bay Transp. Authority, 391
Mass. 815 (1984).
5. Punitive Damages. Except where authorized by statute, punitive
damages are not recoverable in a negligence or breach of warranty
action. International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 856 n.
20, 443 N.E.2d 1308, 1317 n. 20 (1983). However, punitive damages
are recoverable under G.L. c. 93A, the Massachusetts Consumer
Protection Act, which encompasses claims for breach of warranty.
The statute allows for double or treble damages when the defendants
conduct has been willful and knowing. Recovery under c. 93A is
decided by the Court, often with an advisory but not binding verdict
from the jury.
6. Emotional Distress. Recovery for emotional distress in personal
injury cases is permissible, but absent a physical injury, emotional
distress recovery is limited to cases where defendants conduct was
extreme and outrageous and was either intentional or reckless. Agin v.
Howard Johnson Co., 371 Mass. 140 (1976). In a claim of negligent
infliction of emotional distress, proof of some physical manifestation
of the emotional distress is required such that the existence of the
emotional distress can be verified by objective evidence. Payton v.
Abbott Labs, 386 Mass. 570 (1986).
156
III.
Jury Instructions
a. Negligence General Instruction Compensatory or Actual
Massachusetts Sup. Ct. Civ. Practice Jury Instructions, Vol. 1,
2.1.13, pg. 2-31 (2nd ed. 2008).
The fourth element the plaintiff must prove is damages. You will only
reach the issue of damages if you find that the defendant was negligent
and that the defendants negligence caused injury to the plaintiff.
As with all the other elements, the plaintiff bears the burden of proving
[his/her] damages by a fair preponderance of the evidence.
The purpose of the law in awarding damages is to compensate an injured
person for the losses incurred because of another persons negligent
conduct.
The object is to try to restore the person to the position [he/she] would
have been in had the wrong not occurred. The purpose is not to reward the
plaintiff and not to punish the defendant. Damages are to be awarded to
the plaintiff as a fair and reasonable compensation for the legal wrong
done to [him/her] by the defendant.
You must put aside your personal feelings during your deliberations and
decide this case as the evidence and law dictate.
There is no special formula under the law to assess the plaintiffs damage.
It is your obligation to assess what is fair, adequate, and just. You must
use your wisdom and judgment and your sense of basic justice to translate
into dollars the amount which will fairly and reasonably compensate the
plaintiff for [his/her] injuries. You must be guided by your common sense
and your conscience.
b. Negligence Professional Malpractice Massachusetts Sup. Ct. Civ.
Practice Jury Instructions, Vol. 1, 4.3.4, pg. 4-19 (2nd ed., 1st supp.
2011).
The plaintiff is entitled to receive compensation for the following:
Reasonable medical expenses that have been incurred or that will

be incurred in the future;
Lost wages, loss of earning capacity, and other economic losses
that have been incurred or that will be incurred in the future;
Pain and mental suffering, loss of companionship, embarrassment,
and other items of general damages that have been incurred or that
will be incurred in the future;
Any impairment or loss of bodily function, whether temporary or
permanent in duration;
157
Any scarring or disfigurement caused by the defendants

negligence, as opposed to the natural consequence of necessary,
nonnegligent treatment; and
Loss of chance of survival.
Recovery for physical and mental pain and suffering is limited to

compensation for physical and mental pain and suffering that the plaintiff
has actually experienced and will experience in the future.
Because a parent is legally obligated to provide medical care to a minor up
until the age of majority, the recovery for medical expenses incurred as the result
of an injury to a child rests with the parent to the extent such medical expenses
have been incurred or will be incurred prior to the age of majority. Recovery for
future medical expenses after the age of majority rests with the minor, who would
thereafter be responsible for his own medical expenses. See Restatement, Second,
Torts, 703(b) (Right of recovery for medical expenses suffered by a minor rests
with parent up until age of majority). Cf., Rodgers v. Boynton, 315 Mass. 279
(1943) (Distinguishing right of husband to recover for medical expenses incurred
by wife, which is limited to past medical expenses, and right of father to recover
for medical expenses incurred by minor child, which does not stop at trial)
I.
Recovery in Massachusetts for the wrongful death of a minor is governed

by the Massachusetts Wrongful Death statute, M.G.L. c. 229, 2. The nature of
the particular damages sought and recovered will govern who is entitled to
recover for the damages.
Recovery under the wrongful death statute for the fair monetary value of
the decedent to the persons entitled to recover as compensation for the loss of the
reasonably expected net income, services, protection, care, assistance, society,
companionship, comfort, guidance, counsel, and advice of the decedent is
limited to those persons entitled to recover under M.G.L. c. 229, 1 (the intestacy
statute) regardless of whether the decedent had a will, and awards are made
individually for each person entitled to recover. In other words, the intestacy
statute will govern which individuals are presumptive takers entitled to
recovery for such wrongful death damages, but will not govern how the award is
to be distributed as this determination will be made individually by the jury based
upon its assessment of each presumptive takers loss. See, e.g., Burt v. Meyer,
400 Mass. 185 (1987) (M.G.L. c. 229, 1 governs who is entitled to recover
under wrongful death statute, but the recovery is for each individual entitled to
158
recover based on individual losses and is distributed in accordance with individual

findings of loss, not in accordance with the intestacy statute); see also, Crowl v.
M. Chin Realty Trust, 700 F.Supp.2d 171 (D. Mass. 2010) (a wrongful death
action, M.G.L. c. 229, 1 defines those that are entitled to recover, while M.G.L.
c. 229, 2 defines how much they are entitled to recover.).
Recovery for the decedents pain and suffering prior to death, or for
punitive damages awarded under the wrongful death statute, will be for the
decedents estate and will be distributed according to the decedents will or per
the intestacy statute if the decedent dies intestate. See, e.g., Burt v. Meyer, 400
Mass. 185 (1987) (punitive damages are recovered for estate) and Poyser v.
United States, 602 F Supp. 436 (D. Mass. 1984) (recovery for conscious pain and
suffering of a decedent is for the benefit of the decedents estate).
such wrongful or negligent act or omission or breach of warranty are
recoverable by the estate. See M.G.L. c. 229, 2.
2. Reasonably Expected Net Income. The fair monetary value of the
decedents reasonably expected net income are recoverable under the
wrongful death statute for amounts that the decedent would have
earned to the extent that those entitled to recover under the intestacy
statute were the beneficiaries of such net income. See M.G.L. c. 229,
2. Thus, it is likely that in all but the rarest of cases, there would be
no recovery for the loss of earning capacity of the decedent when the
decedent is a minor.
3. Services, Protection, Care and Assistance. A person entitled to
recover under the wrongful death statute is also entitled to recover the
fair monetary value of any services, protection, care or assistance that
a minor provides. M.G.L. c. 229, 2. This type of recovery would be
more likely than a recovery for loss of earnings as a parent would
more often be dependent upon a minor for services or assistance than
for reasonably expected net income. See, e.g., Poyser v. United States,
602 F. Supp. 436 (1984) (a wrongful death action, mother of decedent
entitled to recover value of services that decedent minor provided
through babysitting younger siblings).
4. Loss of Society, Companionship, Comfort, Guidance, Counsel, and
Advice. The wrongful death statute provides for recovery by those
entitled to recover under the intestacy statute for the fair monetary
value of the society, companionship, comfort, guidance, counsel and
advice of the decent. M.G.L. c. 229, 2
5. Pain and Suffering. Pain and suffering experienced by the decedent
159
recoverable by the estate, to be distributed in accordance with the

distribution of the assets of the estate. Poyser v. United States, 602 F
Supp. 436 (D. Mass. 1984).
6. Punitive Damages. Punitive damages in a wrongful death case are
recoverable in an amount of not less than five thousand dollars in such
case as the decedents death was caused by the malicious, willful,
wanton, or reckless conduct of the defendant or by the gross
negligence of the defendant. See M.G.L. c. 229, 2. Such a recovery
will be for the estate of the decedent and will be distributed in
accordance with the proper distribution of the assets of the estate. Burt
v. Meyer, 400 Mass. 185 (1987).
7. Loss of Enjoyment of Life. Under M.G.L. c. 229, 2, damages are
not recoverable for the loss of the decedents life itself. See Keene v.
Brigham & Womens Hospital, Inc., 56 Mass. App. Ct. 10, 27-28
(2002).
8. Grief, anguish and bereavement. Grief, anguish and bereavement of
survivors are not elements of damages in a wrongful death action. See
MacCuish v. Volkswagenwerk A.G., 22 Mass. App. Ct. 380 (1986).
II.

Wrongful Death Massachusetts Sup. Ct. Civ. Practice Jury Instructions,
Vol. 1, 3.5, pg. 3-7 (2nd ed. 2008).
I now turn to the subject of damages. You will only reach the issue of
damages if you find that the defendant was negligent and that the
defendants negligence was a proximate cause of the decedents death. If
you find that the plaintiff is entitled to damages, then, as with all the other
elements, the plaintiff bears the burden of proving [his/her] damages by a
fair preponderance of the evidence. The purpose of the law in awarding
damages is to reasonably and fairly compensate for the losses incurred
because of anothers negligent conduct. Recovery for wrongful death
represents damages to the survivors for the loss of value of the decedents
life.
There is no special formula under the law to assess the plaintiffs
damages.
It is your obligation to assess what is fair, adequate and just based on the
evidence presented to you. You must use your wisdom and judgment to
translate into dollars and cents the amount which will fully, fairly, and
reasonably compensate the next of kin for the death of the decedent.
160
MICHIGAN
Darren VanPuymbrouck
Deborah Bone
Schiff Hardin LLP
Chicago, Illinois
(312) 258-5500
I.
Economic Damages:
Michigan law does not limit the amount of compensation available for
economic damages. See MICH. COMP. LAWS 600.2946a. Available
economic damages include compensation for:
1. Medical Expenses. Reasonable expenses of necessary medical care,
treatment, and services are recoverable. See Foley v. Detroit & M. R.
Co, 159 N.W. 506, 507 (Mich. 1916).
2. Loss of Earning Capacity. Loss of earning capacity after the plaintiff
has reached the age of eighteen is a recoverable loss. See Gumienny v.
Hess, 280 N.W. 809, 810 (Mich. 1938).
3. Economic Loss of Parent. Parents of an injured minor can bring suit
to recover parents loss of services and expenses incurred. See
Gumienny v. Hess, 280 N.W. 809, 810 (Mich. 1938).
II.
Michigan law limits compensation for noneconomic losses in a products
liability action to $280,000. MICH. COMP. LAWS 600.2946a (2011). If
the defect in the product caused permanent loss of a vital bodily function,
however, the limitation on damages for noneconomic loss rises to
$500,000.00. Id. This limitation does not apply where the trier of fact
determines by a preponderance of the evidence that the loss was the result
of the defendants gross negligence. Id. Available noneconomic damages
include compensation for:
1. Mental and Physical Pain and Suffering. Past and future mental and
physical pain and suffering is a recoverable loss. McDuffie v. Root, 1
N.W.2d 544, 548 (Mich. 1942). Shame, mortification, mental pain,
anxiety, and humiliation related to the physical injury are also
recoverable. Beath v. Rapid R. Co, 78 N.W. 537, 540 (Mich. 1899);
Grenawalt v. Nyphuis, 55 N.W.2d 736, 741 (Mich. 1952).
161
2. Disability and Disfigurement. Minors disability and disfigurement

is a recoverable loss. See Brininstool v. Michigan United R. Co, 121
N.W. 728, 731 (Mich. 1909).
3. Punitive and/or Exemplary Damages. Michigan does not permit
punitive damages, but does permit exemplary damages as
compensation for mental suffering consisting of a sense of insult,
indignity, humiliation, or injury to feelings. Gregory v. Cincinnati
Inc., 538 N.W.2d 325 (Mich. 1995); Yamaha Motor Corp. v. Tri-City
Motors, 429 N.W.2d 871 (Mich. Ct. App. 1988). In order to award
exemplary damages, the trier of fact must find the defendants conduct
to be malicious or so willful and wanton as to demonstrate a reckless
disregard of plaintiff's rights; negligence is not sufficient to recover
exemplary damages. See Veselenak v. Smith, 327 N.W.2d 261, 265
(Mich. 1982).
III.

a. Measure of Damages Personal and Property M Civ JI 50.01.
If you decide that the plaintiff is entitled to damages, it is your duty
to determine the amount of money which reasonably, fairly and
adequately compensates [him / her] for each of the elements of
damage which you decide has resulted from the [negligence /
professional negligence or malpractice] of the defendant, taking
into account the nature and extent of the injury.
You should include each of the following elements of damage
which you decide has been sustained by the plaintiff to the present
time:
[Here insert the appropriate elements of damage, such as: M Civ JI
50.02 Pain and Suffering, Etc.; M Civ JI 50.03 Disability and
Disfigurement; M Civ JI 50.04 Aggravation of Preexisting Ailment
or Condition]
You should also include each of the following elements of damage
which you decide plaintiff is reasonably certain to sustain in the
future:
[Reinsert applicable elements of damages as specified above.]
If any element of damage is of a continuing nature, you shall
decide how long it may continue. *(If an element of damage is
162
permanent in nature, then you shall decide how long the plaintiff is
likely to live.)
Which, if any, of these elements of damage has been proved is for
you to decide based upon evidence and not upon speculation, guess
or conjecture. The amount of money to be awarded for certain of
these elements of damage cannot be proved in a precise dollar
amount. The law leaves such amount to your sound judgment.
Your verdict must be solely to compensate plaintiff for [his / her]
damages, and not to punish the defendant.
b. Element of Damage Pain and Suffering, Etc. M Civ JI
50.02
the [Insert applicable element(s).] *(physical pain and
suffering) *(mental anguish) *(fright and shock) *(denial of social
pleasure and enjoyments) *(embarrassment, humiliation or
mortification)
c. Element of Damage Disability and Disfigurement M Civ
JI 50.03.
the *(disability including the loss or impairment of [Describe.])
*(and the) *(disfigurement of [Describe.])
d. Element of Damage Aggravation of Preexisting Ailment
or Condition M Civ JI 50.04.
the *(increase in [Describe.] arising from aggravation of a
preexisting ailment or condition)
e. Element of Damage Medical Expenses M Civ JI 50.05.
the *(reasonable expenses of necessary medical care, treatment
and services)
f. Element of Damage Loss of Future Earning Capacity
Unemancipated Minor Plaintiff. M Civ JI 50.07.
the *(loss of earning capacity after the plaintiff has reached the
age of eighteen)
Who owns the right to sue for medical expenses? Parent or child? If the
parent, does that end at the age of majority when it becomes the childs
claim?
163
Under Michigan common law, parents of an injured minor have the right
to recover the loss of services and expenses incurred as a result of the minors
injury. See Gumienny v. Hess, 280 N.W. 809, 810 (Mich. 1938).
If the minors injury involved an automobile accident, however, the minor
may have a right of recovery arising from the Michigan No-Fault Act which
provides that personal protection insurance benefits are payable to or for the
benefit of an injured person. MICH. COMP. LAWS 500.3112. The statute
confers a cause of action on the injured party to collect medical and other
expenses incurred as a result of the injury even in instances where the minors
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.

Under Michigan law, the deceased minors parents, grandparents, or
siblings may bring a wrongful death claim for damages suffered. MICH.
COMP. LAWS 600.2922(3). In the event none of these persons survive
the deceased minor, then any person to whom the estate of the deceased
would pass under the laws of intestate succession may bring suit. Id.
II.

Economic Damages:
1. Medical and Burial Expenses. Michigan statute provides for the
compensation of medical, funeral, and burial expenses. MICH. COMP.
LAWS 600.2922(6).
2. Loss of Support of Services. Michigan statute provides for
compensation the loss of financial support and services of the minor,
when applicable. Id.; Rohm v. Stroud, 194 N.W.2d 307, 309 (Mich.
1972) (The value to the parent of the services of a minor child is at
least as great as the amount expended by the parent on the child's
support, maintenance, and education.).
In wrongful death suits arising from a products liability action, the amount
of damages for noneconomic losses is limited to $500,000.00. MICH.
COMP. LAWS 600.2946a. This limitation does not apply where the trier
of fact determines by a preponderance of the evidence that the loss was the
164
result of the defendants gross negligence. Id. Available noneconomic

damages include compensation for:
1. Pain and Suffering. Michigan statute provides for the compensation
of pain and suffering undergone by the deceased minor, while
conscious, during the period between the injury and death. Id.
600.2922(6).
2. Loss of Society and Companionship. Michigan statute provides for
the compensation for the loss of the society and companionship of the
minor. Id. In order to award compensation for the loss of society and
companionship, the claimant must show a family relationship from
which damages for the loss of the childs society and companionship
could result. McTaggart v. Lindsey, 509 N.W.2d 881, 884 (Mich. Ct.
App. 1993).
3. Punitive and/or Exemplary Damages. Michigan does not permit the
award of punitive or exemplary damages in wrongful death suits.
Gregory v. Cincinnati Inc., 538 N.W.2d 325 (Mich. 1995); Fellows v.
Superior Products Co., 506 N.W.2d 534, 536 (Mich. Ct. App. 1993).
III.

Wrongful Death Damages M Civ JI 45.02.
If you decide the plaintiff is entitled to damages, you shall give
such amount as you decide to be fair and just, under all the
circumstances, to those persons represented in this case. Such
damages may include the following items, to the extent you find
they have been proved by the evidence:
1. *(reasonable medical, hospital, funeral and burial
expenses)
2. *(reasonable compensation for the pain and suffering
undergone by [name of decedent] while [he / she] was
conscious during the time between [his / her] injury and
[his / her] death)
3. *(losses suffered by [name of next of kin] as a result of
[name of decedent]s death, including:
a. loss of financial support;
165
b. loss of service, which shall be at least as great as

the amount spent by the parent on the childs
support, maintenance and education;
c. loss of gifts or other valuable gratuities;
d. loss of parental training and guidance;
e. loss of society and companionship;
f. [other]
g. [other]
Which, if any, of these elements of damage has been proved is for
you to decide, based upon evidence and not upon speculation,
guess, or conjecture. The amount of money to be awarded for
certain of these elements of damage cannot be proved in a precise
dollar amount. The law leaves such amount to your sound
judgment. Your verdict must be solely to compensate for the
damages and not to punish the defendant.
166
MINNESOTA
John S. Monical
Christina Mermigas
Chicago, Illinois
(312) 372-1947
I.
Economic Damages:
1. Medical Expenses. Costs of medical supplies, hospital services, and
health care services necessary in caring for the minor are recoverable.
CIVJIG 91.55, 91.65; see Kwapien v. Starr, 400 N.W.2d 179 (Minn.
Ct. App. 1987).
2. Childs Lost Services and Earnings. The loss of the minors services
up to the date of trial and the loss of future services reasonably certain
to be lost up to the age of 18 are recoverable by the parent. CIVJIG
91.55. The loss of the childs working time and the reduction of the
childs future earnings capacity reasonably certain to be lost up to the
age of 18 are recoverable by the parent and after age 18 by the minor.
CIVJIG 91.55, CIVJIG 91.60; Eklund v. Evans, 300 N.W. 617 (Minn.
1941). This is an element of general, not specific, damages, which
does not require specific proof of actual earnings either before or after
the injury. Kwapien v. Starr, 400 N.W.2d 179 (Minn. Ct. App. 1987).
Recovery for future loss of earning capacity is based on factors
including the plaintiffs age, health, skill, training, experience, work
habits, length of loss of earnings capacity, and years of earnings
compared to life expectancy. CIVJIG 91.60; Sylvester v. Gleason, 371
N.W.2d 573 (Minn. Ct. App. 1985).
II.
1. Disability, Disfigurement, and Embarrassment. Past and future
damages for disability, disfigurement, and embarrassment are
recoverable. CIVJIG 91.10, 91.25. These damages are taken under the
consideration of the inflationary trend of the economy. Dawydowycz v.
Quady, 220 N.W.2d 478 (Minn. 1974). The jury should consider the
nature, extent, and severity of the injuries in determining the amount
of disfigurement damages, and the Minnesota Supreme Court has not
and cannot set a limit to these damages. Id.
2. Loss of Life Expectancy. Loss of life expectancy and the effect that
the injury has had on the minor childs enjoyment of amenities of life
167
are recoverable. Dawydowycz v. Quady, 220 N.W.2d 478 (Minn.

1974).
3. Pain and Suffering. Past and future (if reasonably certain) physical
and mental pains are recoverable. CIVJIG 91.10, 91.25; Iacona v.
Schrupp, 521 N.W.2d 70 (Minn. Ct. App. 1994). Per diem arguments
may be misleading and, therefore, may not be used as a yardstick for
determining the reasonableness of the amount awarded for damages,
but the rule does not bar the use of the mathematical formula for
purely illustrative purposes. Christy v. Saliterman, 179 N.W.2d 288,
304 (Minn. 1970); Boutang v. Twin City Motor Bus Co., 80 N.W.2d
30, 39 (Minn. 1956). However, the per diem argument is proscribed in
cases involving damage awards for pain and suffering and for
generally non-quantifiable compensatory awards. Busch v. Busch
Constr., Inc., 262 N.W.2d 377, 399 (Minn. 1977).
4. Emotional Distress. Past and future emotional distress from bodily
harm is recoverable. CIVJIG 91.10, 91.25.
5. Punitive Damages. In cases in which the conduct of the person found
to be negligent was due to intentional harm or such outrageous
behavior, the judge or jury can award punitive damages. Punitive
damages shall be allowed in civil actions only upon clear and
convincing evidence that the acts of the defendant show deliberate
disregard for the rights or safety of others. MINN. STAT. ANN. 549.20
(2012).
III.

a. Compensatory Damages - Personal and Property Damages
Definition CIVJIG 90.10
Question(s) __, __, and __ in the verdict form (is) (are) the
damages question(s).
Answer each question independently
[You must answer these questions regardless of your answers to
the other questions on the verdict form. Your verdict is not
complete until these damages questions are answered.]
When you decide damages, do not consider the possible effect of
your answers to other questions.
b. Compensatory Damages - Personal and Property Damages
- General Instruction Deciding the Amount of Damages
CIVJIG 90.20
168
In answering question(s) __, __, __, and __, you are to decide the
amount of money that will fairly and adequately compensate
(name) for (his) (her) past and future (injury) (harm).
Items to include
You may award damages for the following items if the evidence
shows they resulted from the (accident) (collision) (event):
[Insert the elements from CIVJIG 91.1091.35, 91.5091.65,
91.75, and 92.10, as appropriate to the case.]
[No consideration of other sources of payment. Do not consider
whether (plaintiff) has received or may receive payment from other
sources.]
c. DamagesBurden of Proof - Definition of burden of
proof CIVJIG 90.15
A party asking for damages must prove the nature, extent,
duration, and consequences of his or her (injury) (harm).
You must not decide damages based on speculation or guess.
d. Adjustment of Future Damages - Present Cash Value Present cash value of damages CIVJIG 90.25
After finding the dollar value of future damages for:
[a Loss of future earning capacity]
[b Future health care expenses],
you must then find the present cash value of this amount, and
award only the present cash value. This is called adjusting, and
is based on inflation and the fact that invested money earns
interest.
Steps in adjusting
The following steps are involved in adjusting:
1. Decide if (name) is entitled to damages for:
[a Lost/reduced future earning capacity]
[b Future health care expenses].
2. If so, decide the amount of these future damages in
todays dollars. In doing this, you may also consider
whether inflation will increase the:
[a Value of future earning capacity]
[b Future health care expenses].
3. Decide for how long in the future (name) will:
[a Experience lost/reduced future earning capacity]
169
[b Incur future health care expenses].

4. Decide how much money (name) needs if (he) (she)
invests it now through the time in the future when (he)
(she) will need it for:
[a. Lost or reduced future earning capacity]
[b. Future health care expenses].
Damages that must be adjusted
You must adjust damages only for:
[1. Loss/reduction of future earning capacity]
[2. Future health care expenses].
Damages not to be adjusted
You must not adjust damages for:
1. Future pain,
2. Future disability,
3. Future emotional distress,
4. Any past damages.
e. Items of Personal Damage - Past Damages - Bodily and
Mental Harm - Past damages for bodily and mental harm
CIVJIG 91.10
Items to include for past damages for bodily and mental harm:
1. Pain
2. Disability
3. [Disfigurement]
4. [Embarrassment]
5. Emotional distress
(name) has experienced up to the time of your verdict.
It is difficult to put an exact value on these items that are not
necessarily decided on a daily or hourly basis.
Factors to consider. You should consider:
1. The type, extent, and severity of the injuries
2. How painful the injuries were
3. The treatment and pain involved in that treatment
4. The length of time the injury or harm lasted
5. Any other factors you think are relevant.
[No consideration of other sources of payment. Do not consider
whether (plaintiff) has received or may receive payment from other
sources.]
170
f. Items of Personal Damage - Past damages for health care

expenses CIVJIG 91.15
Past damages for health care expenses may include:
1. Medical supplies
2. Hospitalization
3. Health care services of every kind necessary for
treatment up to the time of your verdict.
[Include the reasonable value of the services of attendants if
needed for name)s care.]
[Determine the amount for diagnostic x-rays separately.]
g. Items of Personal Damage - Past damages for loss of
earnings CIVJIG 91.20
Past damages for loss of earnings may include:
1. Earnings
2. Salary
3. Value of working time lost as a result of the injury, from
the time of injury to date.
[Do not consider the fact that (name) actually received (his) (her)
salary for all or part of the time in deciding the value of (name)s
lost working time.]
h. Items of Personal Damage - Future damages for bodily and
mental harm CIVJIG 91.25
Future damages for bodily and mental harm may include:
1. Pain
2. Disability
[3. Disfigurement]
[4. Embarrassment]
5. Emotional distress
(name) is reasonably certain to experience in the future.
It is difficult to put an exact value on these items that are not
necessarily decided on a daily or hourly basis.
1. The type, extent, and severity of the injuries
2. How painful the injuries are
3. The treatment and pain involved in that treatment
4. The length of time the injury or harm is likely to last
5. Any other factors you think are relevant.
171
i. Items of Personal Damage - Parents Damages for Injury to

Child CIVJIG 91.55
When a child is injured, the child has a claim for (his) (her)
(injuries) (harm). (His) (her) (father) (mother) may also have a
claim.
Parents damages may include:
1. The reasonable value of medical supplies, hospital
services, and health care services necessary in caring for
the child
2. The loss of (child)s services the (father) (mother) would
have received up to the date of trial
3. The value of the childs working time lost as a result of
the injury from the time of injury to date
[Do not consider the fact that (child) actually received his or her
salary for all or part of the time in deciding lost value of the
earning capacity.]
4. The value of the services the (father) (mother) is
reasonably certain to lose in the future until (child) reaches
the age of 18 years
5. The value of the loss or reduction of (child)s future
earning capacity the (father) (mother) is reasonably certain
to experience until (child) reaches the age of 18 years.
Parents future damages for the loss or reduction of a childs
earning capacity. In deciding the amount of future damages for the
loss or reduction of the childs future earning capacity until age 18,
you should consider:
1. Age
2. Health
3. Skill
4. Training
5. Experience
6. Work habits
7. Length of loss of earning capacity (temporary or
permanent).
*Note on Use - If the child reached the age of 18 years or was
emancipated before trial, recovery is limited to that date. If the
evidence shows the child has been emancipated or could be
emancipated before reaching the age of 18 years, this factor must
be added to the instruction in limiting the period of time for which
the parent can recover future damages. An instruction on
emancipation of a minor should also be given if the evidence raises
a fact question on this issue.
172
See Authorities to CIVJIG 91.20, concerning loss of earnings,

CIVJIG 91.30, dealing with future medical expenses, and CIVJIG
91.35, dealing with loss of future earning capacity.
j. Items of Personal Damage - Childs damages for loss of
future earning capacity CIVJIG 91.60
You may consider the value of the total or partial future earning
capacity of (name of child) that (he) (she) is reasonably certain to
lose after (he) (she) reaches age 18.
In deciding the amount of future damages, you should consider:
1. Age
2. Health
3. Skill
4. Training
5. Experience
6. Work habits
7. Length of loss of earning capacity (temporary or
permanent)
8. Years of earning of (name of child) compared to (his)
(her) life expectancy.
*Note on Use - If the evidence shows that the child has been
emancipated or is likely to be emancipated before the age of 18
years, this factor must be added to the instruction in fixing the
beginning of the period of the loss or impairment of future earning
capacity. An instruction on emancipation of a minor should also be
given if the evidence raises a fact question as to this issue.
k. Items of Personal Damage - Childs damages for health
care expenses CIVJIG 91.65
Damages for health care expenses may include:
1. Medical supplies
2. Hospitalization
3. Health care services of every kind.
These must be reasonable and necessary for treatment in the future.
[Include the reasonable value of the services of attendants if
needed for (name of child)s care in the future.]
*Note on Use - If the child reached the age of 18 years or was
emancipated before trial, recovery is for the period from that date.
173
The parent has the right to recover past and future damages for medical
expenses of an injured minor up to the age of 18. CIVJIG 91.55. The minor has
the right to recover medical expenses beyond the age of 18. CIVJIG 91.65.
When the suit is only brought on behalf of the child, no damages are recoverable
except those suffered by the child. To such extent, the minor has no right to
recover medical expenses or lost time for his or her own injuries. Instead, the
childs parent has the right to recover those medical expenses during the minority
of the child. Eichten v. Central Minn. Co-op Power Assn, 28 N.W.2d 862 (Minn.
1947); Dentinger v. Uleberg, 213 N.W. 377 (Minn. 1927). Once a suit is brought
on behalf of the minor child, the judgment is a bar to subsequent actions by the
child, his guardian, general or ad litem, or by himself after majority. Lathrop v.
Schutte, 63 N.W. 493 (Minn. 1895).
I.
Under Minnesota law, when death is caused by a wrongful act or omission

of another, the trustee appointed pursuant to the statute to prosecute the action
may maintain an action for the death if the decedent might have maintained an
action, had the decedent lived, for an injury caused by the wrongful act or
omission. Minn. Stat. 573.02. Once the trustee is appointed, the trustee has the
exclusive right to maintain the action or to negotiate a settlement for the benefit of
the next of kin. In re Appointment of Trustee for Heirs of Bodeker, 661 N.W.2d
271 (Minn. Ct. App. 2003). If an action for the injury was commenced by the
decedent and not finalized while the decedent was living, the action may be
continued by the trustee for recovery of damages for the exclusive benefit of the
next of kin and converted to a wrongful death claim on their behalf. Minn. Stat.
573.01. In re Appointment of Trustee for Heirs of Bodeker, 661 N.W.2d 271
(Minn. Ct. App. 2003).
II.
The amount recoverable in wrongful death suits is the amount the jury
deems fair and just in reference to the pecuniary loss resulting from the death and
that is of the exclusive benefit of the next of kin or surviving spouse,
proportionate to the pecuniary loss severally suffered by death. MINN. STAT.
573.02 (1).
Economic Damages:
1. Money Value of Damages or Pecuniary Loss. Although the Minnesota
wrongful death act provides for the recovery of pecuniary loss,
174
Minnesota does not use that term in its pattern jury instructions. CIVJIG
91.75; Muehlhauser v. Erickson, 621 N.W.2d 24 (Minn.Ct.App. 2000).
The jury instruction refers instead to the money that will fairly and
adequately compensate for the losses suffered as the result of this death,
and lists various factors to be considered in determining the amount. There
is a presumption that the heirs or next of kin have suffered pecuniary loss
that has monetary value. Ferguson v. Orr, 427 N.W.2d 732 (Minn. Ct.
App. 1988).
2. Medical Expenses. Reasonable expenses for support due to the last
sickness, including necessary medical and hospital expenses incurred after
and as a result of the injuries causing death are specifically included in
the factors to consider for calculating pecuniary loss. CIVJIG 91.75.
3. Funeral Expenses. Funeral and burial expenses are specifically included
in the factors to consider for calculating pecuniary loss. CIVJIG 91.75.
Along with support/aid that the decedent would have provided, funeral
expenses are the first damages deducted and paid to the minor child under
monetary judgments of a wrongful death claim. Minn. Stat. 573.02.
4. Loss of Past and Future Earnings. The factors considered in
determining pecuniary loss specifically include past earnings and likely
future earnings capacity, as well as past contributions, life expectancy,
health, age, habits, talents and success, occupation, and personal living
expenses. CIVJIG 91.75; see Cummins v. Rachner, 257 N.W.2d 808
(Minn. 1977) (jury should have considered deceaseds contributions in
past; life expectancy at time of death; health, age, habits, talents, and
success; occupation; personal living expenses, obligation to support
children and likelihood of fulfilling that obligation if it were necessary;
counsel and guidance she would have given to husband; and advice,
comfort, assistance, and protection she would have given her children if
she had lived).
5. Special Damages. In addition to the above, special damages arising out
of the injury causing death are recoverable if the minor could have
pursued these claims. Special damages have been defined by the
Minnesota courts to mean damages which are the natural, but not the
necessary and inevitable result of the wrongful act. CIVJIG 90.10; See
Ray v. Miller Meester Adver., Inc., 684 N.W.2d 404 (Minn. 2004), citing
Phelps v. Commonwealth Land Title Insurance Co., 537 N.W.2d 271
(Minn. 1995).
175
1. Loss of Support and Companionship. Counsel, guidance, and aid and
advice, comfort, assistance, companionship, and protection that would
have been given if the minor had lived are included within the factors
considered in calculating pecuniary damages. CIVJIG 91.75; Youngquist
v. Western Natl 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 available
in wrongful death cases. MINN. STAT. 573.02.
III.

a. Measure of Damages - Wrongful Death - Money value of
damages CIVJIG 91.75
When you consider damages for (claimant)(s), determine an
amount of money that will fairly and adequately compensate
(claimant)(s) for the losses (he) (she) (they) suffered as the result
of this death.
You should consider what (name of deceased) would have
provided to the (claimant)(s) if (he) (she) (they) had lived.
1. (His) (Her) contributions in the past
2. (His) (Her) life expectancy at the time of (his) (her)
death
3. (His) (Her) health, age, habits, talents, and success
4. (His) (Her) occupation
5. (His) (Her) past earnings
6. (His) (Her) likely future earning capacity and prospects
of bettering (himself) (herself) had (he) (she) lived
7. (His) (Her) personal living expenses (cost of supporting
the child)
8. (His) (Her) legal obligation to support the (surviving
spouse) (next of kin) and the likelihood that (he) (she)
would have fulfilled that obligation
9. All reasonable expenses incurred for a funeral and burial
(etc.), and all reasonable expenses for support due to (his)
(her) last sickness, including necessary medical and
hospital expenses incurred after and as a result of the
injuries causing death
176
10. [The probability of (name of decedent)s paying the

debt owed by ________ to ________]
11. The counsel, guidance, and aid (he) (she) would have
given (claimant)(s)
12. [The advice, comfort, assistance, companionship, and
protection that (name of decedent) would have given if (he)
(she) had lived].
Lost time together
Decide the length of time those related might be expected to
survive together. You should compare the life expectancy of (name
of decedent) with the life expectancy of each claimant.
Take into account only the amount of time the two being compared
would be expected to survive together.
Base your money damages for each claimant on the shorter life
expectancy of the two being compared.
Items to exclude
Do not include amounts for:
1. [Punishing the defendant]
2. [Grief or emotional distress of the surviving spouse and
the next of kin], or
3. [For the pain and suffering of (decedent) before (his)
(her) death].
Factors to exclude
Do not be influenced by the fact that:
1. [The (surviving spouse) (next of kin) (may have received)
(may get) money or other property from (name)s estate], or
2. [The (surviving spouse) (next of kin) (may collect) (has
collected) insurance or workers compensation benefits
because of (name)s death], or
3. [The surviving spouse has remarried], or
4. [The minor children have been emancipated], or
5. [There is no legal obligation to support the next of kin].
177
You must determine the total amount of money that will fairly and
adequately compensate the (claimant)(s) for the damages suffered
as the result of this death.
[I will divide the damages among the (claimants).]
b. Life Expectancy Tables - Calculate life expectancy CIVJIG
91.85
According to life expectancy tables, the future life expectancy of a
_____-year-old (male) (female) is _____ years. This means (he)
(she) is expected to live to age _____.
Use this figure to help you determine the probable life expectancy
of (name). It is not conclusive proof of (his) (her) life expectancy,
and you are not bound by it. It is only an estimate based on average
experience.
You may find that (name) (might live) (would have lived) a longer
or shorter period than that given in these tables.
Consider this figure along with evidence of the health, physical
condition, habits, occupation, and surroundings of (name) and
other circumstances that might affect (his) (her) life expectancy.
c. Punitive Damages - Definition of punitive damages
CIVJIG 94.10
When there is clear and convincing evidence that (defendant) acted
with deliberate disregard for the rights or safety of others, you can
award (plaintiff) additional damages. These punitive damages
are intended to punish (defendant) and discourage others from
behaving in a similar way. [Punitive damages may not be used to
punish the defendant for injury or harm to persons other than the
plaintiff in this case, however.]
Clear and convincing evidence
The evidence must convince you that (defendant) acted with
deliberate disregard for the rights or safety of others.
You must have a firm belief, or be convinced there is a high
probability, that (defendant) acted this way.
178
Deliberate disregard
Deliberate disregard means that (defendant):
1. Knew about facts or intentionally ignored facts that
created a high probability of injury to the rights or safety of
others, and
2. Deliberately acted
a. with conscious or intentional disregard, or
b. with indifference to the high probability of injury
to the rights or safety of others.
Factors to consider for punitive damages
If you decide to award punitive damages, consider, among other
things, the following factors:
[1. The seriousness of the hazard to the public that may
have been or was caused by (defendant)s misconduct]
[You may not consider any harm to persons who are not
parties to this case that was the result of lawful conduct in
another state]
[2. The profit (defendant) made as a result of the
misconduct]
[3. The length of time of the misconduct and if (defendant)
it]
[4. The amount (defendant) knew about the hazard and of
its danger]
[5. The attitude and conduct of (defendant) when the
misconduct was discovered]
[6. The number and level of employees involved in causing
or hiding the misconduct]
[7. The financial state of (defendant)]
[8. The total effect of other punishment likely to be
imposed on (defendant) as a result of the misconduct. This
includes compensatory and punitive damage awards to
(plaintiff) and other persons]
[9. The severity of any criminal penalty (defendant) may
get].
*Note on Use - This instruction should only be given once it has
been decided by the judge or the jury that plaintiff is entitled to
compensatory damages.
179
MISSISSIPPI
Sean W. Shirley
Mark E. Bond
Balch & Bingham LLP
Birmingham, Alabama
(205) 251-8100
I.
Economic Damages:
omission or breach of warranty are recoverable. Medical expenses
include the cost of medicine, cost of initial medical treatment, cost of
hospitalization, cost of surgical procedures, cost of follow-up medical
treatment, and the cost of future medical expenses. See, e.g., Lane v.
Webb, 220 So. 2d 281, 285-86 (Miss. 1969).
2. Loss of Wages or Wage-Earning Capacity. Loss of Wages or
Wage-Earning Capacity is a recoverable expense. See Woods v.
Nichols, 416 So. 2d 659, 671 (Miss. 1982).
II.
1. Hedonic Damages. In any civil action for personal injury there may
be a recovery for pain and suffering and loss of enjoyment of life.
However, there shall be no recovery for loss of enjoyment of life as a
separate element of damages apart from pain and suffering damages,
and there shall be no instruction given to the jury which separates loss
of enjoyment of life from pain and suffering. The determination of the
existence and extent of recovery for pain and suffering and loss of
enjoyment of life shall be a question for the finder of fact, subject to
appellate review, and the monetary value of the pain and suffering and
loss of enjoyment of life shall not be made the subject of expert
testimony. Miss. Code Ann. 11-1-69.
2. Disfigurement. The right to recovery for disfigurement is settled
under Mississippi Law. See Vascoe v. Ford, 54 So. 2d 541, 542 (Miss.
1951).
expense. See Woods v. Nichols, 416 So. 2d 659, 671 (Miss. 1982).
180
4. Punitive Damages. Miss. Code Ann. 11-1-65. Punitive damages

must be shown by clear and convincing evidence that the defendant
against whom punitive damages are sought acted with actual malice,
gross negligence which evidence willful, wanton or reckless disregard
for the safety of others, or committed actual fraud. Miss. Code Ann.
11-1-65(1)(a). Furthermore, the trier of fact shall first determine
whether compensatory damages are to be awarded and in what
amount, before addressing any issues related to punitive damages.
Miss. Code Ann. 11-1-65(1)(b).
Before entering judgment for an award of punitive damages the trial
court shall ascertain that the award is reasonable in its amount and
rationally related to the purpose to punish the actions of the injuring
party considering the following factors: (1) whether there is a
reasonable relationship between the punitive damage award and the
harm likely to result from the defendants conduct as well as the harm
that actually occurred; (2) the degree of reprehensibility of the
defendants conduct, the duration of that conduct, the defendants
awareness, any concealment, and the existence or frequency of similar
past conduct; (3) the financial condition and net worth of the
defendant; and (4) in mitigation, the imposition of criminal sanctions
on the defendant for its conduct and the existence of other civil awards
against the defendant for the same conduct. Miss. Code Ann. 11-165(1)(f). In any civil action where entitlement to punitive damages is
established, no award of punitive damages shall exceed the statutory
caps provided for in Miss. Code Ann. 11-1-65(3).
5. Emotional Distress. If there is outrageous conduct, no injury is
required for recovery for intentional infliction of emotional distress or
mental anguish. One who claims emotional distress need only show
that the emotional trauma claimed was a reasonably foreseeable
consequence of the negligent or intentional act of another. If the
conduct is not malicious, intentional or outrageous, there must be some
sort of demonstrative harm, and said harm must have been reasonably
foreseeable by the defendant. See Adams v. U.S. Homecrafters, Inc.,
744 So. 2d 736, 743-44 (Miss. 1999).
III.
Jury Instructions
a. Negligence General Instruction Compensatory or Actual. Miss.
Civ. Jury Instruction Companion Handbook 7:5, pg. 426 (2011-2012).
You are instructed that, should you find for the plaintiff in this case, you
must confine your verdict to reasonable compensation for the injuries
actually sustained, if any, by the plaintiff as a result of _______ (specify
wrongful act or conduct in question). Plaintiffs reasonable compensation,
181
if any, does not include attorneys fees, nor does it allow a monetary
award which constitutes a penalty against the defendant, nor are you
limited by the estimates of damages made by the attorneys representing
the parties to this lawsuit. The defendant is not responsible for any
physical or mental problem that the plaintiff may have had prior to
_______ (specify wrongful act or conduct in question), nor any physical or
mental problem that is not related to an injury the plaintiff might have
suffered as a result of _______ (specify wrongful act or conduct in
question).
b. Negligence Professional Malpractice. Miss. Civ. Jury Instruction
Companion Handbook 6:6 Instruction P-5. pg. 328-329 (2011-2012).
If you find by a preponderance of the evidence in this case and under
instructions of law previously given to you that Defendants [hospital or
organization], collectively or individually are liable for the injuries
suffered by [Plaintiff] then you must return a verdict in favor of the
Plaintiff in the amount which will reasonably compensate him for his
damages.
These damages are called compensatory damages and are awarded for the
purpose of making [Plaintiff] whole again in so far as a money verdict can
accomplish that purpose.
In determining the amount of damages to be awarded to [Plaintiff] you
may consider and award monetary damages for the following:
1.
2.
3.
4.
5.
[Plaintiffs] past and future mental and emotional distress;

[Plaintiffs] past physical pain and suffering;
[Plaintiffs] past medical expenses incurred;
[Plaintiffs] loss of enjoyment of life;
[Plaintiffs] scarring and physical disfigurement.
Mississippi imposes a legal obligation upon both parents to pay for their
childs reasonable medical expenses. See McLain v. West Side Bone & Joint Ctr.,
656 So. 2d 119, 122 (Miss. 1995). Section 41-9-119 of the Mississippi Code of
1972 provides that, [p]roof of medical, hospital, and doctor bills were paid or
incurred because of any illness, disease, or injury shall be prima facie evidence
that such bills so paid or incurred were necessary and reasonable.
A minor child is not legally liable for his or her medical expenses, and
recovery for medical expenses associated with a childs injury are properly
recoverable by his or her parents. See Cook v. Childrens Med. Group, 756 So. 2d
734, 740 (Miss. 1999). In the event a minor child has a cause of action for
182
injuries sustained by the negligent or wrongful conduct or another, the parents of

the minor child have a derivative claim to recover any medical expenses paid by
them on behalf of their minor child. Stated differently, the parent may bring a
cause of action individually or as next friend of his or her minor child. See
Clardy v. ATS, Inc. Employee Welfare Benefit Plan, 921 F. Supp. 394, 401 n.5
(N.D. Miss. 1996). Double recovery will not be allowed. Either the parents or the
minor child will be allowed to recover medical expenses. See Cook, 756 So.2d at
740.
Survival claims described in Miss. Code Ann. 11-7-13, the wrongfuldeath statute, are by specific statutory language, limited to damages which a
deceased person could have pursued if death had not ensued. Caves v. Yarbrough,
991 So. 2d 142 (Miss. 2008).
I.
Economic Damages:
1. Property Damages. Property damages are recoverable. See Miss.
Code Ann. 11-7-13.
such wrongful or negligent act or omission or breach of warranty are
recoverable. See Miss. Code Ann. 11-7-13.
3. Life Expectancy. Present Net Cash Value of the Work Life
Expectancy of the Decedent is recoverable. This figure represents the
total earnings the Deceased would have realized throughout his/her
lifetime, based on average life expectancy, reduced to present value
and reduced further by the amount which the Decedent would have
spent on himself/herself. Goodyear Tire & Rubber Co. v. Kirby, No.
2007-CA-00325-COA, 2009 Miss, App. LEXIS 221 (Miss. Ct. App.
2009).
II.
1. Loss of Society and Companionship. Loss of Society and
Companionship of the Decedent is recoverable. Goodyear Tire &
Rubber Co. v. Kirby, No. 2007-CA-00325-COA, 2009 Miss, App.
LEXIS 221 (Miss. Ct. App. 2009). The wrongful death beneficiaries
are entitled to claim their respective claims for loss of society and
companionship. See Bridges v. Enter. Prods. Co., 551 F. Supp. 2d
549, 558 (S.D. Miss. 2008).
2. Pain and Suffering. Pain and Suffering experienced by the Decedent
183
recoverable. Goodyear Tire & Rubber Co. v. Kirby, No. 2007-CA00325-COA, 2009 Miss, App. LEXIS 221 (Miss. Ct. App. 2009).
3. Punitive Damages. Miss. Code Ann. 11-1-65. Punitive damages
must be shown by clear and convincing evidence that the defendant
against whom punitive damages are sought acted with actual malice,
gross negligence which evidence willful, wanton or reckless disregard
for the safety of others, or committed actual fraud. Miss. Code Ann.
11-1-65(1)(a). Furthermore, the trier of fact shall first determine
whether compensatory damages are to be awarded and in what
amount, before addressing any issues related to punitive damages.
Miss. Code Ann. 11-1-65(1)(b).
Before entering judgment for an award of punitive damages the trial
court shall ascertain that the award is reasonable in its amount and
rationally related to the purpose to punish the actions of the injuring
party considering the following factors: (1) whether there is a
reasonable relationship between the punitive damage award and the
harm likely to result from the defendants conduct as well as the harm
that actually occurred; (2) the degree of reprehensibility of the
defendants conduct, the duration of that conduct, the defendants
awareness, any concealment, and the existence or frequency of similar
past conduct; (3) the financial condition and net worth of the
defendant; and (4) in mitigation, the imposition of criminal sanctions
on the defendant for its conduct and the existence of other civil awards
against the defendant for the same conduct. Miss. Code Ann. 11-165(1(f). In any civil action where entitlement to punitive damages is
established, no award of punitive damages shall exceed the statutory
caps provided for in Miss. Code Ann. 11-1-65(3).
5. Loss of Enjoyment of Life. When the Mississippi Legislature
enacted, Miss. Code Ann. 11-1-69(2), the section flatly rejected the
awarding of hedonic damages in a wrongful death lawsuit. In any
wrongful death action, there shall be no recovery for loss of enjoyment
of life caused by the death. Goodyear Tire & Rubber Co. v. Kirby,
No. 2007-CA-00325-COA, 2009 Miss, App. LEXIS 221 (Miss. Ct.
App. 2009).
6. Emotional Distress. Recovery of emotional distress damages is not
permitted under 11-7-13 and damages and awards cannot be enlarged
on account of the horror and terrible shock of a tragedy. Bridges v.
Enter. Prods. Co., 551 F. Supp. 2d 549 (S.D. Miss. 2008).
184
III.
Jury Instruction:
Wrongful Death. Miss. Civ. Jury Instruction Companion Handbook
7:3 Instruction 15(a), pg. 397-98 (2011-2012).
If you find for the Plaintiff, individually and on behalf of the wrongful
death beneficiaries of [the decedent], Deceased, you are instructed that the
form of the verdict should be as follows:
We the jury find for [Plaintiff], individually and on behalf of the
wrongful death beneficiaries of [the decedent], deceased as follows:
1. $_______ for ambulance, hospital and funeral expenses;
2. $_______ for past physical pain and suffering, mental anguish
and anxiety;
3. $_______ for net present cash value of the life expectancy of
[the decedent]; and
4. $_______ for loss of society, companionship and consortium.
$__________ Total of lines 1 through 4.
If you find for the [Defendant company], you are instructed that the form
of your verdict should be as follows:
We the jury find for the [Defendant company].
185
MISSOURI
Kara T. Stubbs
Jonathan E. Benevides
Baker Sterchi Cowden & Rice, LLC
Kansas City, Missouri
(816) 471-2121
I.
Economic Damages:
1. Medical and Other Related Expenses. Medical and other related
expenses incurred as a result of a wrongful or negligent act are
recoverable. See e.g. Sommers v. Hartford Acc. & Indem. Co., 277
S.W.2d 645 (Mo.App.1955); Butler v. Metropolitan Street Ry. Co., 93
S.W. 877 (Mo. App. 1906); Beebe v. Kan. City, 17 S.W.2d 608 (Mo.
App. 1929);
2. Loss of Wages or Wage-Earning Capacity. The loss of earning
capacity in a minor during minority is a loss to his parents who
are entitled to both his services and his earnings. Evans v.
Farmers Elevator Co., 147 S.W.2d 593, 601 (Mo.1941); White v.
Ennis Coffee Co., 182 S.W. 775 (Mo. App.1916). A minor may
recover for his/her impairment of earning capacity after
attaining majority. Farmers Elevator Co., 147 S.W.2d at 601.
II.
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. See e.g.
Wright v. Long, 954 S.W.2d 470 (Mo. App. W.D.1997); LopezVizcaino v. Action Bail Bonds, Inc.3 S.W.3d 891(Mo. App.
W.D.1999).
2. Disfigurement. Missouris medical malpractice statute defines noneconomic damages that are recoverable as damages arising from nonpecuniary harm including, without limitation, pain, suffering, mental
anguish, inconvenience, physical impairment, disfigurement, loss of
capacity to enjoy life, and loss of consortium. RSMo. 538.205(7).
3. Loss of Use of Limb. Missouris medical malpractice statute includes
physical impairment in its definition of recoverable non-economic
damages. RSMo. 538.205(7).
4. Punitive Damages. Punitive damages may be awarded for conduct
that is outrageous, because of the defendant's evil motive or reckless
186
indifference to the rights of others. Burnett v. Griffith, 769 S.W.2d

780, 789 (Mo. banc 1989). It is not the commission of the tort that
matters, but the conduct or motive that provides the basis for punitive
damages. Blue v. Harrahs North Kansas City, LLC, 170 S.W. 3d 466,
477 (Mo. App. W.D. 2005) (citing Fabricor, Inc. v. E.I. DuPont De
Nemours & Co., 24 S.W.3d 82, 97 (Mo. App. W.D.2000)). Punitive
damages are so extraordinary and harsh that reckless indifference must
be proven by clear and convincing evidence. Id. Thus, to make a
submissible case for punitive damages, it must be proven by clear and
convincing evidence that the defendants conduct was outrageous
because of evil motive or reckless indifference. Lopez-Vizcaino v.
Action Bail Bonds, Inc., 3 S.W.3d 891, 893 (Mo.App. W.D.1999)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). It should be presumed that a plaintiff has been
made whole for his injuries by compensatory damages, so punitive
damages should only be awarded if the defendants culpability, after
having paid compensatory damages, is so reprehensible to warrant the
imposition of further sanctions to achieve punishment or deterrence.
State Farm Mut. Auto Ins. v. Campbell, 538 U.S. 408, 419 (2003).
5. Emotional Distress. In Missouri,[w]here the plaintiff is a direct
victim of the defendant's negligence and seeks damages for emotional
distress, the plaintiff is required to prove two additional elements: (1)
the defendant should have realized that his conduct involved an
unreasonable risk of causing the distress and (2) the emotional distress
or mental injury must be medically diagnosable and must be of
sufficient severity so as to be medically significant. Jarrett v. Jones,
258 S.W.3d 442, 448 (Mo. banc 2008). Under this approach, the
plaintiff's threshold burden of proving legal damage would be satisfied
upon demonstration of any medically provable mental distress or
harm. Bass v. Nooney Co., 646 S.W.2d 765, 773 n. 4 (Mo. banc 1983)
(citation omitted). Then the trier of fact applies the severity standard to
determine if compensation is warranted. Id.
III.
Jury Instructions
M.A.I. 4.01 [2002Revision]. DamagesPersonal and Property
If you find in favor of plaintiff, then you must award plaintiff such sum as
you believe will fairly and justly compensate plaintiff for any damages
you believe plaintiff sustained [and is reasonably certain to sustain in the
future] as a direct result of the occurrence mentioned in the evidence. [If
you find that plaintiff failed to mitigate damages as submitted in
Instruction Number, in determining plaintiff's total damages you must not
include those damages that would not have occurred without such failure.]
187
M.A.I. 21.01[1998 Revision]. Verdict DirectingActions Against

Health Care ProvidersNo Comparative Fault.
Your verdict must be for the plaintiff if you believe:
First, defendant (here set out act or omission complained of; e.g., failed to
set plaintiff's broken leg bones in natural alignment, or left a sponge in
plaintiff's chest after performing an operation, or failed to administer
tetanus antitoxin), and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence1 plaintiff sustained damage.
M.A.I. 10.02 [2008 Revision]. DamagesExemplaryNegligence
Constituting Conscious Disregard for Others
If you find in favor of plaintiff under Instruction Number
____________(here insert number of plaintiff's verdict directing
instruction based on negligence), and if you believe the conduct of
defendant as submitted in Instruction Number ____________(here insert
number of plaintiff's verdict directing instruction based on negligence)
showed complete indifference to or conscious disregard for the safety of
others, then in addition to any damages to which you may find plaintiff
entitled under Instruction Number ____________(here insert number of
plaintiff's damage instruction) you may award plaintiff an additional
amount as punitive damages in such sum as you believe will serve to
punish defendant and to deter defendant and others from like conduct.
[You may consider harm to others in determining whether defendant's
conduct showed complete indifference to or conscious disregard for the
safety of others. However, in determining the amount of any punitive
damage award, you must not include damages for harm to others who are
not parties to this case.]
Who "owns" the right to sue for medical expenses? Parent or child? If
parent does that end at the age of majority when it becomes child's claim?
In the ordinary case involving injuries to a minor child, the right to recover
her medical expense is in the parents, and not in the minor. Evans v. Farmers
Elevator Co., 147 S.W.2d 593, 601 (1941); Clark v. Martin, 650 S.W.2d 699, 701
188
(Mo.App.1983). The reason for this rule is that in the ordinary case the primary
obligation to defray all such expense rests upon the parents who are charged with
the duty of supplying the child's necessities. Sommers v. Hartford Acc. & Indem.
Co., 277 S.W.2d 645, 649 (Mo.App.1955); Butler v. Metropolitan Street Ry. Co.,
117 Mo.App. 354, 93 S.W. 877 (1906). However, the parents' right of action is
not for injury to the child, but for injury to the parents by reason of pecuniary loss
directly sustained. Sommers, 277 S.W.2d at 649. Consequently, where it is shown
that the minor actually paid the medical expenses necessitated by the injuries
sustained, he/she has the right to recover such expenses rather than his/her
parents. Id. The parents right to recover for a minors medical expenses ends at
the age of majority. See Kramer v. May Lumber Co.432 S.W.2d 617, 622
(Mo.App. 1968); Wilson v. Lockwood, 711 S.W.2d 545, 554 (Mo. App. W.D.
1986).
I.
Economic Damages:
such wrongful or negligent act or omission are recoverable. RSMo.
537.090.
2. Life Expectancy. A factor to be considered in evaluating
damages under the Wrongful Death Act (RSMo. 537.090) is
potential financial aid by the decedent, which can be shown
through evidence of the decedent's health, character, talents,
earning capacity, life expectancy, age and habits. Barnett v. La
Societe Anonyme Turbomeca France, 963 S.W.2d 639, 657
(Mo.App.1997).
II.
1. Loss of Society and Companionship. Loss of Companionship of the
Decedent is recoverable.
Missouris wrongful death statute
specifically provides for recovery of the reasonable value of the
services, consortium, companionship, comfort, instruction, guidance,
counsel, training, and support of which those on whose behalf suit may
be brought have been deprived by reason of such death. RSMo.
537.090; Barnett, 963 S.W.2d at 657.
2. Pain and Suffering. If the decedent suffered pain from the time
and date of his fatal injury and the time and date of his death, an
award for such suffering is proper. Coggins v. Laclede Gas Co., 37
S.W.3d 335, 343 (Mo. Ct. App. E.D. 2000); RSMo. 537.090.
189
3. Punitive Damages. Damages for aggravating circumstances are akin

to punitive damages and are permissible only if the decedent would
have been entitled to punitive damages had he lived. Kilmer v.
Browning (App. S.D. 1991) 806 S.W.2d 75. Thus, damages for
aggravating circumstances in wrongful death cases are governed by
the same standards as punitive damages. Call v. Heard, 925 S.W.2d
840, 851 (Mo. banc 1996). Punitive damages based on aggravating
circumstances require that a defendants conduct was outrageous or
egregious. The phraseology differs based on the type of case, but all
depend on willful wrongdoing or recklessness. Litchfield v. May
Department Stores Co., 845 S.W.2d 596, 599 (Mo. App. E.D. 1993).
The Missouri Supreme Court has held that to support a claim for
punitive damages based on aggravating circumstances, there "must be
clear and convincing evidence in support of the claim." Lopez v.
Three Rivers Electric Cooperative, 26 S.W.3d 151, 160 (Mo. 2000)
(citing Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 110 (Mo.
banc. 1996)).
Specifically, the evidence must show that the
defendant either knew or had reason to know that there was a high
degree of probability that the defendants conduct would result in
injury. Coon v. American Compressed Steel, Inc., 207 S.W.3d 629,
637 (Mo. App. W.D. 2006). The defendants conduct must be
tantamount to intentional wrongdoing and indicate a complete
indifference to or conscious disregard for the safety of others. Id. A
person acts with complete indifference to or conscious disregard for
the safety of others when, under the circumstances known or knowable
to the actor, a reasonable person would realize the conduct not only
creates an unreasonable risk of bodily harm to the other but also
involves a high degree of probability that substantial harm will result
to him.'" Joyce v. Nash, 630 S.W.2d 219, 224 (citing Nichols v.
Bresnahan, 212 S.W.2d 570, 573 (Mo. banc 1948) and Smith v.
Courter, 575 S.W.2d 199, 207 (Mo. App. W.D. 1979)).
4. Loss of Enjoyment of Life. Loss of enjoyment of life is not an
element of damages for which recovery is provided for under
Missouris wrongful death statute. RSMo 537.090.
5. Emotional Distress. When a child or parent dies factors such as the
physical, emotional and psychological relationship between the parent
and the child must be considered. Barnett, 963 S.W.2d at 657.
However, the Wrongful Death Act specifically provides that damages
for grief and bereavement are not recoverable. RSMo 537.090.
190
III.
Jury Instructions
M.A.I. 5.01 [1996 Revision]. Wrongful Death.
If you find in favor of plaintiff, then you must award plaintiff such sum as
you believe will fairly and justly compensate plaintiff for any damages
you believe plaintiff [and decedent] sustained [and plaintiff 4 is reasonably
certain to sustain in the future] as a direct result of the fatal injury to
(insert name of decedent).
You must not consider grief or bereavement suffered by reason of the
death.
M.A.I. 6.02 [1998 Revision]. Wrongful DeathAggravating
Circumstances.
Where aggravating circumstances are submitted in a wrongful death case,
select an exemplary damage instruction from Chapter 10.00 that fits the
theory of the case (e.g., intentional tort, negligence, strict liability, etc.)
and substitute the phrase damages for aggravating circumstances for the
phrase punitive damages in the Chapter 10.00 instruction selected.
For example, if a wrongful death case is submitted on a negligence theory,
MAI 10.02 would be selected to submit aggravating circumstances in the
following, modified form:
If you find in favor of plaintiff under Instruction Number _______(here
insert number of plaintiff's verdict directing instruction based on
negligence), and if you believe the conduct of defendant as submitted in
Instruction Number _______(here insert number of plaintiff's verdict
directing instruction based on negligence) showed complete indifference
to or conscious disregard for the safety of others, then in addition to any
damages to which you may find plaintiff entitled under Instruction
Number _______(here insert number of plaintiff's damage instruction)
you may award plaintiff an additional amount as damages for aggravating
circumstances in such sum as you believe will serve to punish defendant
and to deter defendant and others from like conduct.
The burden of proof instruction (MAI 3.01) and the verdict form from
Chapter 36.00 (MAI 36.11) would be modified similarly by substituting
the phrase damages for aggravating circumstances for the phrase
punitive damages.
191
MONTANA
Sara R. Sexe
Marra, Sexe, Evenson & Bell, P.C.
Great Falls, Montana
(406) 268-1000
Damages Available in a Minors Personal Injury Action
I.
The damages recoverable in a personal injury action are set forth by
statute:
1. Compensation for mental and physical pain and suffering. Mental
and emotional suffering and distress includes mental anguish, nervous
shock or the like; highly unpleasant mental reactions, such a fright,
horror, grief, shame, humiliation, embarrassment, anger, chagrin,
disappointment, worry, and nausea.
2. Loss of earnings to date because of plaintiffs inability to pursue an
occupation;
3. Loss of future earning capacity. There is no specific formula in
Montana which provides how to calculate this form of damage for
either minors or adults. M C A 27-1-202. This loss is the permanent
diminution of ability to earn money in the future, and the loss is a part
of general damages which may be inferred from the nature of the
injury without proof of actual lost earnings or income, i.e. the law does
not require proof with precise accuracy, but with reasonable
estimation. Factors that juries evaluate include proof of the injured
person's previous health, age, occupation, skills, education, probable
number of productive years remaining, physical and/or mental
impairment proximately caused by the injury and similar factors to
infer a loss of an established earning capacity. Thomas v. Whiteside,
148 Mont. 394, 397-98, 421 P.2d 449, 451 (1966).
4. Value of services which plaintiff would normally have performed
for himself or others, but can no longer perform. Similarly, there is
no particular calculation formula for this type of damage, but sufficient
proof must be provided to allow the jury to make a reasonable
estimation. See Section III.6. below, citing MPI 2nd 25.05.
5. The reasonable value of purchases necessitated by the injury;
192
6. The reasonable value of necessary care, treatment and services

received to date and probable to be required in the future;
7. Reasonable compensation for impairment of capacity to pursue an
established course of life. Please see MPI 2d 25.08, cited in III.9.
below. As with other general damages, Montana law does not require
proof with precise accuracy, and reasonable estimation is acceptable.
The proof of these type of damages does not need to be premised on
physical limitation. Rasmussen v. Sibert (1969), 153 Mont. 286, 297,
456 P.2d 835, 841, and Henricksen v. State, 2004 MT 20, 319 Mont.
307, 328, 84 P.3d 38, 54. This is calculated separately from the loss of
one's earning capacity. MCA 27-1-202. Henricksen, at p. 328, 84 P.3d
at 54.
8. Punitive damages may be awarded when the defendant has been
found guilty of actual fraud or actual malice by clear and convincing
evidence.
MCA 27-1-221.
II.
Other Damages Issues

1. Damages for personal injury or wrongful death not to be stated. In
an action for the recovery of money or damages for personal injury or
wrongful death, the amount thereof may not be stated in the claim for
relief, whether an original claim, counterclaim, cross-claim, or thirdparty claim. MCA 25-4-311.
2. Damages to be reasonable. Damages must in all cases be reasonable,
and where an obligation of any kind appears to create a right to
unconscionable and grossly oppressive damages contrary to substantial
justice, no more than reasonable damages can be recovered. MCA
27-1-302.
3. Breach of obligation other than contract. For the breach of an
obligation not arising from contract, the measure of damages, except
where otherwise expressly provided by this code, is the amount which
will compensate for all the detriment proximately caused thereby,
whether it could have been anticipated or not. MCA 27-1-317.
III.
Jury Instructions
a. MPI 2nd 25.00.
If you find for the plaintiff on the question of liability, then you must
determine the amount of money which will reasonably and fairly
193
compensate the plaintiff for all loss caused by the defendant(s), regardless
of whether such loss could have been anticipated. MPI 2nd 25.00.
b. MPI 2nd 25.01.
Your award should include reasonable compensation for any pain and
suffering experienced and reasonably probable to be experienced in the
future. The law does not set a definite standard by which to calculate
compensation for mental and physical pain and suffering. Neither is there
any requirement that any witness express an opinion about the amount of
compensation that is appropriate for this kind of loss. The law does
require, however, that when making an award for pain and suffering, you
shall exercise calm and reasonable judgment. The compensation must be
just and reasonable.
c. MPI 2nd 25.02.
Your award should include reasonable compensation for any mental and
emotional suffering and distress experienced by plaintiff and reasonably
probable to be experienced in the future. Mental and emotional suffering
and distress passes under various names, such as mental anguish, nervous
shock, or the like. It includes all highly unpleasant mental reactions, such
as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,
disappointment, worry, and nausea. The law does not set a definite
standard by which to calculate compensation for mental and emotional
suffering and distress. Neither is there any requirement that any witness
express an opinion about the amount of compensation that is appropriate
for this kind of loss. The law does require, however, that when making an
award for mental and emotional suffering and distress, you shall exercise
calm and reasonable judgment. The compensation must be just and
reasonable.
d. MPI 2nd 25.03.
Your award should include the reasonable value of any loss sustained to
date because of plaintiffs inability to pursue an occupation. In
determining what plaintiff reasonably could have earned had there been no
injury, you should consider evidence of plaintiff's earning capacity, past
earnings, and the manner in which he/she ordinarily would have occupied
his/her time before the injury. A person may have an earning capacity,
even though not employed.
e. MPI 2nd 25.04.
Your award should include reasonable compensation for any loss of
future earning capacity. You should consider evidence of plaintiff's health,
physical ability, and earning capacity before the accident, and what they
are now. You should also consider the nature, extent and duration of the
194
injuries. A person may have an earning capacity, even though not

employed.
f. MPI 2nd 25.05.
Your award should include the reasonable value of any service, whether
paid or not, which plaintiff would normally have performed for
himself/herself or others, but can no longer perform.
g. MPI 2nd 25.06.
Your award should include the reasonable value of purchases
necessitated by the injury.
h. MPI 2nd 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 2nd 25.08.
If you find that the plaintiff has been permanently injured or will
continue to suffer in the future from his/her injuries, you may award
plaintiff reasonable compensation for the impairment, if any, of his/her
capacity to pursue an established course of life. This element of
compensation is distinct from plaintiff's loss of earning capacity.
j. MPI 2nd 25.09.
Where a pre-existing condition has been aggravated by the accident, it is
your duty, if possible, to apportion the amount of disability and pain
between that caused by the pre-existing condition and that caused by the
accident and compensate the plaintiff for that caused by the accident. But,
if you find that the evidence does not permit such an apportionment, then
the defendant is liable for the entire disability and pain.
k. MPI 2nd 25.10.
Any compensation to which plaintiff is entitled should not be reduced
simply because plaintiff was more susceptible to injury than a normally
healthy person.
In Montana, parents are obligated to financially provide for their children.
MCA 40-6-214. See also Conley v. Walden, 166 Mont. 369, 376, 533 P.2d 955,
195
959 (1975). If as part of this obligation, the parents pay for medical expenses of
the child incurred as a result of a personal injury claim, the law provides:
In Montana, medical and hospital expenses incurred by the minor before
turning 18 would ordinarily be a claim of the parents. Chavez v. U. S., 192
F. Supp. 263, 270 (D. Mont. 1961) holds:
In the case of an injury to a minor, there arise two causes of
action, one in favor of the minor under R.C.M. 1947 93-2805,
and the other in favor of the parents under 93-2809. See Burns v.
Eminger, 1929, 84 Mont. 397, 276 P. 437.
However, the child may individually pursue his or her claims for all damages
through a guardian. MCA 27-1-511, 512.
A parents right for reimbursement of the medical expenses that parent has
paid would survive majority, as the right remains the parents. The Montana
Supreme Court held similarly relating to the loss of the childs services:
In Automobile Underwriters Inc. v. Camp, 109 Ind.App. 389, 32 N.E.2d
112, 114, the Indiana Appellate Court referred to the Thompson case,
supra, and commented thusly: This same authority holds that the
wrongful act by which the minor child is injured gives rise to two causes
of action, one in favor of the injured child for personal injuries inflicted
upon the child and the other in favor of the parent for the loss of services,
the one being an action for personal injuries and the other an action for
property damage.
And again in Rader v. Collins, 130 Ind.App. 227, 161 N.E.2d 381, 383,
the Indiana Appellate Court interpreted section 2-217 and stated: This
statute gives rise to a new and independent action for damages for the
destruction of a property right * * *.
Since we agree with the Indiana Appellate Court's interpretation we hold
that this action is an action for an injury to a pecuniary interest of the
parent, therefore one for an injury to a property right.
LaTray v. Mannix Elec. Co., 148 Mont. 303, 305-06, 419 P.2d 744, 745 (1966).
A property right carries a two year statute of limitations. Id.
However, double recovery for the same element of damages may not be
awarded. Pence v. Fox, 248 Mont. 521, 527, 813 P.2d 429, 433 (1991). Thus, for
those expenses not borne by the parents (for example future medical expenses),
the right to claim compensatory damages would be the childs.
196
Damages Recoverable In A Minors Wrongful Death Claim

I.
Survival Action
If the decedent survives the injury an appreciable amount of time, the

estate can maintain a survivorship action under 27-1-501. Survival of cause of
action or defense - death or disability or transfer of interest. (1) An action,
cause of action, or defense does not abate because of the death or disability of a
party or the transfer of any interest therein, but whenever the cause of action or
defense arose in favor of such party prior to his death or disability or transfer of
interest therein, it survives and may be maintained by his representatives or
successors in interest. If the action has not been begun or defense interposed, the
action may be begun or defense interposed in the name of his representatives or
successors in interest. If the action has been begun or defense interposed, the
action or proceeding may be continued as provided in Rule 25, M.R.Civ.P.
The damages available in a survivorship action are:
1.
The amount of decedent's lost earnings between the time of

injury and the time of death;
2. The present value of decedent's reasonable earnings after the date of

death during the remainder of his life expectancy;
3. The medical and funeral expenses which were incurred as a result of
the injury and death;
4. Reasonable compensation for decedent's conscious mental and
physical pain and suffering in the interval between injury and death
5. Punitive damages may be awarded when the defendant has been found
guilty of actual fraud or actual malice by clear and convincing
evidence. MCA 27-1-221.
II.
Wrongful Death Action
When injuries to and the death of one person are caused by the wrongful
act or neglect of another, the personal representative of the decedents estate may
maintain an action for damages against the person causing the death or, if such
person be employed by another person who is responsible for his conduct, then
also against such other person. MCA 27-1-513.
If a person entitled to bring an action dies before the expiration of the time
limited for the commencement of the action and the cause of action survives, an
action may be commenced by the deceaseds representatives after the expiration
of that time and within 1 year from death. MCA 27-2-204.
197
In every action under 27-1-513, such damages may be given as under all
the circumstances of the may be just. MCA 27-1-323
The damages available in a wrongful death action are:
1. Loss of consortium, loss of comfort, and society;
2. The reasonable value of the contributions in money that the decedent
would have provided for the support, education, training, and care of
the heirs during the life expectancies of the decedent and survivors;
3. Reasonable compensation for burial expenses and funeral services for
the deceased and any reasonable medical charges which were incurred
in connection with the death;
4. Reasonable compensation for grief, sorrow and mental anguish
resulting from the death;
5. Punitive damages may be awarded when the defendant has been found
guilty of actual fraud or actual malice by clear and convincing
evidence. MCA 27-1-221.
III.
Jury Instructions
a. MPI2d 25.00.
If you find for the plaintiff on the question of liability, then you must
determine the amount of money which will reasonably and fairly
compensate the plaintiff for all loss caused by the defendant(s), regardless
of whether such loss could have been anticipated.
b. MPI2d 25.20.
( ) Your award should include reasonable compensation to
____________ as a result of _______________'s death. You should
consider any financial support which _______________ would have
received or had a right to receive from the deceased except for the death,
and also the value of the society, comfort, guidance, education, care,
protection, and companionship which _________ has lost by reason of the
death.
You should consider: the age of the deceased and of ______________; the
state of health and physical condition of the deceased and
______________ as it existed at the time of the death and prior thereto;
their respective expectancies of life as shown by the evidence; the
disposition of the deceased whether it was kindly, affectionate or
otherwise; whether the deceased showed an inclination to contribute to the
support of ________________; the earning capacity of the deceased and
the monetary value of the deceased's non-compensated services to the
198
household; and such other facts shown by the evidence as throw light upon
the value of the support, society, care, comfort, companionship and
protection which the ________________ reasonably might have expected
to receive from the deceased had __________ lived.]
c. MPI2d 25.21.
( ) Reasonable compensation for burial expenses and funeral services for
the deceased and any reasonable medical charges which were incurred in
connection with the death.
d. MPI2d 25.22.
( ) Reasonable compensation for grief, sorrow and mental anguish
resulting from the death.
e. MPI2d 25.25.
( ) Your award should include [reasonable compensation to decedent's
estate for:]
[reasonable compensation for damages suffered by decedent if you find
death was not instantaneous. Your award should then include reasonable
compensation to decedent's estate for:] the amount of decedent's lost
earnings between the time of injury and the time of death; the present
value of decedent's reasonable earnings after the date of death during the
remainder of his/her life expectancy; the medical and funeral expenses
which were incurred as a result of the injury and death; reasonable
compensation for decedent's conscious mental and physical pain and
suffering in the interval between injury and death.
199
NEBRASKA
J. Crisman Palmer
Rebecca L. Mann
Gunderson, Palmer, Nelson and Ashmore, LLP
Rapid City, South Dakota
(605) 342-1078
I.
Damages Recoverable
Injury to a minor results in two causes of actionone on behalf of the

minor and the other on behalf of the minors parent. The minors claim is based
on damages caused by the personal or bodily injury sustained by the minor, while
the claim of a parent is based on the loss of services during minority and the
necessary expenses of treatment for the injured child. Macku v. Drackett
Products Co., 216 Neb. 176, 179, 343 N.W.2d 58, 60 (1984).
Damages for both injury or death to a person can include economic and
noneconomic damages. Neb.Rev.St. 25-21,185.07. Economic damages mean
monetary losses, including, but not limited to, medical expenses, loss of earnings
and earning capacity, funeral costs, loss of use of property, costs of repair or
replacement, costs of obtaining substitute domestic services, loss of employment,
and loss of business or employment opportunities. Neb.Rev.St. 25-21,185.08.
Noneconomic damages mean subjective, nonmonetary losses, including,
but not limited to, pain, suffering, inconvenience, mental suffering, emotional
distress, loss of society and companionship, loss of consortium, injury to
reputation, and humiliation, but shall not include economic damages. Neb.Rev.St.
25-21,185.08.
II.
Particular Damages Issues:

1. Medical and other related expenses. Parent has claim for reasonable
value of medical care actually provided and reasonably certain to be
provided in the future. A parent is liable for the costs of a childs
medical care. Goodwin v. Hobza, 762 N.W.2d 623 (Neb. 2009).
2. Loss of earnings or wage-earning capacity. Parent has claim for
loss of services during minority. Macku v. Drackett Products Co., 216
Neb. 176, 179, 343 N.W.2d 58, 60 (1984). There is no authority on
minors claim for loss of future earnings or wages or how to prove
such a claim.
200
3. Pain and Suffering. Including emotional distress and mental

suffering. This is the childs cause of action, not the parents. Macku
v. Drackett Products Co., 216 Neb. 176, 179, 343 N.W.2d 58, 60
(1984).
4. Punitive Damages. Punitive damages generally are not available in
civil cases in Nebraska. Miller v. Kingsley, 194 Neb. 123, 124, 230
N.W.2d 472, 472 (1974).
III.
Jury Instructions
a. Two Causes of ActionTwo Parents and a ChildNegligence of
Parent Not Imputed to Child. NJI2d Civ. 3.26A.
This case involves two causes of action. One is brought by (name of
person bringing suit on behalf of child), on behalf of (name of child), for
(injuries, damages) allegedly suffered by the child. The other cause of
action is brought by the child's parents, for damages allegedly personally
suffered by them, the parents, by reason of injuries to their child.
Regarding the first cause of action, the one brought on behalf of the child,
negligence on the part of a parent may not be imputed to a child. By that I
mean that negligence on the part of a parent does not relieve the defendant
of any liability the defendant may have to the child for injuries or damages
suffered by the child. In this case, if you find any negligence on the part of
the parents, you must not consider it in deciding the damages, if any, to
which the child is entitled.
Regarding the second cause of action, the one brought by the parents on
their own behalf, if a parent has personally suffered any damages by
reason of injuries to his or her child, whether that parent was negligent or
not is relevant to whether that parent may recover for such damage
personally suffered. In this case, the parents claim that they suffered
personal damages by reason of injuries to their child. If you find that either
parent has suffered some personal damage and that that parent was
negligent, then Instruction No. the general instruction on contributory and
comparative negligence, governs whether or not that parent can recover
for his or her personal damages. If one parent was negligent and the other
was not, the negligence of the one does not affect the recovery of the
other, the non-negligent parent.
201
b. Two Causes of ActionOne Parent and a ChildNegligence of

Parent Not Imputed to Child. NJI2d Civ. 3.26B.
This case involves two causes of action. One is brought by (name of
person bringing suit on behalf of child), on behalf of (name of child), for
injuries allegedly suffered by the child. The other cause of action is
brought by (name of mother), the child's mother, for damages allegedly
suffered by her, by reason of injuries to her child.
Regarding the first cause of action, negligence on the part of a parent may
not be imputed to a child. By that I mean that negligence on the part of a
parent does not relieve the defendant of any liability the defendant may
have to the child for injuries or damages suffered by the child. In this case,
if you find any negligence on the part of a parent, you must not consider it
in deciding the damages, if any, to which the child is entitled.
Regarding the second cause of action, the one brought by the mother on
her own behalf, if she has personally suffered any damages by reason of
injuries to her child, whether she was negligent or not is relevant to
whether she may recover for such damage personally suffered. In this case
the mother claims that she has suffered personal damages by reason of
injuries to her child. If the mother did suffer some personal damage and if
you find that she was herself negligent, then Instruction No. , the general
instruction on contributory and comparative negligence, governs whether
or not she can recover for her personal damages.
c. General Instruction on Damages in a Tort Action Where Joint and
Several Liability Is an IssueEconomic and Noneconomic Damages.
NJI2d Civ. 4.00.
In Instruction No. , I spoke of economic and noneconomic damages.
ECONOMIC DAMAGES
I am about to give you a list of things you may consider in making your
decision regarding economic damages. From this list, you must only
consider those things you decide were proximately caused by defendants
negligence.
1 The reasonable value of medical (, hospital, nursing, and similar)
care and supplies reasonably needed by and actually provided to
the plaintiff (and reasonably certain to be needed and provided in
the future);
202
2 The (wages, salary, profits, reasonable value of the working time,

business) the plaintiff has lost because of (his, her)(inability,
diminished ability) to work;
3 The reasonable value of the (earning capacity, business or
employment opportunities) the plaintiff is reasonably certain to
lose in the future;
4 Reasonable funeral costs;
5 The reasonable value of plaintiff's loss of the use of (his, her)
property;
6 The reasonable value of the cost of repair or replacement (here
describe the thing repaired or replaced);
7 The reasonable cost of obtaining substitute domestic services.
NONECONOMIC DAMAGES
I am about to give you a list of things you may consider in making your
decision regarding noneconomic damages. From his list, you must only
consider those things you decide were proximately caused by defendants
negligence.
1 The reasonable monetary value of the physical pain and mental
suffering (and emotional distress) the plaintiff has experienced
(and is reasonably certain to experience in the future);
2 The reasonable monetary value of the inconvenience the plaintiff
has experienced (and is reasonably certain to experience in the
future);
3 The reasonable monetary value of loss of society and
companionship suffered by the plaintiff and reasonably certain to
be suffered in the future;
4 The reasonable monetary value of any injury to plaintiff's
reputation;
5 The reasonable monetary value of any humiliation the plaintiff
has experienced (and is reasonably certain to experience in the
future);
6 The plaintiff's (husbands, wifes) loss of consortium.
Consortium means those things to which a person is entitled by
reason of the marriage relationship. It includes affection, love,
203
companionship, comfort, assistance, moral support, and the

enjoyment of (sexual, conjugal) relations.
ECONOMIC AND NONECONOMIC DAMAGES
In your determination of economic and noneconomic damages, you must
consider the nature and extent of the injury, including whether the injury is
temporary or permanent, and whether any resulting disability is partial or
total.
claim?
Parent owns right to sue for medical expenses incurred during minority
since parent is responsible for childs medical expenses. Macku v. Drackett
Products Co., 216 Neb. 176, 179, 343 N.W.2d 58, 60 (1984). No authority
indicates if claim becomes childs after age of majority.
A wrongful death action shall be brought by and in the name of the
persons personal representative for the exclusive benefit of the widow or
widower and next of kin. Neb.Rev.St. 30-809. The cause of action is not for
the decedent or the decedents estate but rather for the exclusive benefit of the
widow, widower and next of kin. Corona de Camargo v. Schon, 278 Neb. 1045,
776 N.W.2d 1 (2009). In a wrongful death action where the deceased is a minor
child, the damage will more often be based on the life expectancy of the parentbeneficiaries rather than on the life expectancy of the deceased. Dorsey v. Yost,
151 Neb. 66, 70, 36 N.W.2d 574, 576 (1949).
I.
Economic Damages:
1. Medical and funeral expenses. Statutory beneficiaries may recover
the fair and reasonable value of medical and funeral expenses, but only
in a separate cause of action. Reiser v. Coburn, 255 Neb. 655, 659,
587 N.W.2d 336, 339 (1998).
2. Decedents Likely Future Contributions. The measure of damages
in such a case is the contributions the decedent would have made to
the statutory beneficiaries had the decedent not died. The amount
recoverable is the financial loss, including lost money and lost services
that have a monetary value, which the statutory beneficiaries have
suffered as a result of decedents death. See e.g., Neb.Rev.Stat. 30810 (Reissue 2008); Maloney v. Kaminski, 220 Neb. 55, 69, 368
204
N.W.2d 447, 458 (1985). Includes talents, successes, occupation, past

earnings, personal living expenses etc.
3. Loss of earnings. Loss of earnings is not a proper measure of
damages in a wrongful death action. Evidence of lost earnings is,
however, ordinarily admissible: the proper measurepecuniary loss to
the beneficiariesincludes the amount the beneficiaries would have
received from the lost earnings. Darnell v. Panhandle Coop. Ass'n,
supra. The measure of damages in an action for the wrongful death of
a minor child is the monetary loss the statutory beneficiaries sustain as
the result of being deprived of the child's services during minority plus
the monetary value of the contributions the child might reasonably be
expected to have made after reaching majority. Garvin v. Coover, 202
Neb. 582, 585, 276 N.W.2d 225, 22627 (1979).
4. Prospects that there would have been changes in the future. The
decedents prospects of bettering him- or herself are relevant to
whether decedent's contributions would have changed in the future.
Garvin v. Coover, 202 Neb. 582, 586, 276 N.W.2d 225, 227 (1979).
II.
1. Loss of society, comfort and companionship. Damages for wrongful
death include loss of the childs society, comfort, and companionship
which are shown by the evidence to have a pecuniary value.
Neb.Rev.St. 30-810; Nelson v. Dolan, 434 N.W.2d 25 (Neb. 1989);
Williams v. Monarch Transp. Inc., 470 N.W.2d 751 (Neb. 1991). The
measure of damages is the monetary loss the parent sustains as the
result of being deprived of the childs services during minority plus the
monetary value of the contributions the child might reasonably be
expected to have made after reaching majority. Society embraces a
broad range of mutual benefits each family member receives from the
others continued existence, including love, affection, care, attention,
companionship, comfort, and protection. Brandon v. County of
Richardson (Brandon II), 261 Neb. 636, 66467, 624 N.W.2d 604,
62526 (2001).
2. Mental Suffering experienced by parent. Mental suffering,
bereavement or solace of the parent on account of the death are not
recoverable. Nelson, 434 N.W.2d 25.
3. Pain and Suffering experienced by decedent. Mental anguish or
pain and suffering experienced by the decedent prior to death are not
recoverable. Nelson, 434 N.W.2d 25. However, a separate action on
behalf of the decedents estate for conscious pain and suffering
205
experienced before death, medical expenses, and funeral and burial

expenses may be joined as a separate cause of action in an action for
wrongful death. Reiser v. Coburn, 587 N.W.2d 336 (Neb. 1998).
Damages to decedents next of kin may be recovered in a wrongful
death action; damages to decedent may not.
4. Punitive Damages. Punitive damages generally are not available in
civil cases in Nebraska. Miller v. Kingsley, 194 Neb. 123, 124, 230
N.W.2d 472, 472 (1974).
III.
Jury Instructions
a. Wrongful Death. NJI2d Civ. 4.60.
If you return a verdict for the plaintiff, then you must determine the
amount of money, and the monetary value of the services, comfort, and
companionship, that (the decedent) would have contributed to (spouse,
next of kin), had (the decedent) lived. In making this determination, you
should consider the following:
1 Any financial support, services, comfort, or companionship that
(the decedent) gave to (spouse, next of kin) before (his, her) death,
and the prospect that there would have been changes in the future;
2 The physical and mental health of (the decedent) had (he, she)
not suffered the injuries that caused (his, her) death;
3 (The decedent)'s life expectancy immediately before the injuries
that caused (his, her) death; and
4 The life expectanc(y, ies) of (spouse, each next of kin).
In considering these lost contributions, you may award damages only for
the life expectancy of the decedent or (spouse, each next of kin),
whichever is shorter. You may not award (spouse, next of kin) any
damages for (his, her, their) grief or mental suffering. [(You may not
award any damages for any pain and suffering that the decedent may have
experienced before (his, her) death.) (You may not include here any
money to compensate for any pain and suffering that the decedent may
have experienced before (his, her) death. The decedent's pain and suffering
is the subject of the (second, third, et cetera) cause of action and must be
handled according to Instruction No. .)]
[You should entirely disregard the fact that the surviving spouse (has
remarried, may remarry), the fact that (spouse, next of kin) may receive an
206
inheritance from the decedent's estate, and the fact that (spouse, next of
kin) may receive insurance or workers' compensation benefits as a result
of decedent's death].
[If you do return a verdict for the plaintiff, it must consist of a single sum
of money representing the entire monetary loss of all of (spouse, next of
kin). Do not divide the money (between, among)(spouse, next of kin); that
will be done by the court. (If the jury is to allocate the award, that will be
handled in the verdict form. See Comment, below.)]
207
NEVADA
Jack P. Burden, Esq.
James J. Conway, Esq.
Backus, Carranza & Burden
Las Vegas, Nevada
(702) 872-5555
I.
Economic Damages:
1. Medical Expenses. Under Nevada law, where the injured person is a
minor and the costs of his care have been met by a parent, a direct
right of action by such parent against the wrongdoer exists. Armstrong
v. Onufrock, 341 P.2d 105, 75 Nev. 342 (1959). The parents may
recover for damages the parents have sustained, such as medical
expenses incurred by them. Hogle v. Hall By and Through Evans,
1996, 916 P.2d 814, 112 Nev. 599.
2. Future Medical Expenses.
3. Lost Wages. Parents may recover for loss of childs earnings. Hogle
v. Hall By and Through Evans, 1996, 916 P.2d 814, 112 Nev. 599.
While Nevada has not addressed a minors claim for loss of earnings
(assuming a child under eighteen years of age was employed), Nevada
law may permit the minor to recover for lost earnings based upon the
aforementioned Hogle holding permitting parents to recover for a
childs loss of earnings. However, Nevada has not addressed, and
therefore has not recognized, either a minors or a parents right to
recover for loss of future earnings in a personal injury action on
behalf of a minor.
4. Property Damage. Nevada Civil Jury Instruction 10.00 permits
recovery in a personal injury case for any property damage.
5. Loss of Child Services. Parents may recover for their loss of childs
services. Hogle v. Hall By and Through Evans, 1996, 916 P.2d 814,
112 Nev. 599.
II.
1. Physical Pain and Suffering. A minor may recover for pain and
suffering. The Supreme Court of Nevada has held that a minor may
sue for damages though elements of the damages recoverable by him
may be limited to such items as pain, suffering, disfigurement, and the
208
like. Walker v. Burkham, 1946, 165 P.2d 161, 63 Nev. 75. A

plaintiff may recover for pain and suffering, disfigurement, loss of
earnings, loss of earning capacity, loss of future earnings, medical
expenses, aggravation of pre-existing injuries or disabilities, and
emotional distress. Gutierrez v. Sutton Vending Service, Inc., 80 Nev.
562, 397 P.2d 3 (1964).
Nevada Revised Statute 12.080 permits a parent or guardian to
maintain an action for the injury of a minor child. NRS 12.080 states
that The father and mother jointly, or the father or the mother,
without preference to either, may maintain an action for the injury of a
minor child who has not been emancipated, if the injury is caused by
the wrongful act or neglect of another.
2. Hedonic Damages.
Nevada has also not addressed hedonic
damages in the context of a personal injury action by a minor.
However, the Nevada Supreme Court has held that an award for
hedonic damages is not appropriate as a separate award, but can be
awarded as a part of general damages awarded to a Plaintiff. Thus, in
Nevada, an expert can opine as to hedonic damages and a jury can
award hedonic damages, but only as a part of general damages for pain
and suffering, and not as a separate award. Banks v. Sunrise, 120
Nev. 822. 102 P.3d 52 (2004). Therefore, if one were to apply
pertinent case law that has addressed an adults hedonic damages
claim, one must conclude that any hedonic damages claim by a minor
would only be awarded as part of any general damages sustained.
III.
Jury Instructions
a. Personal Injury and Property Damage. Nev. JI 10.00.
Nevada does not have a Model Civil Jury Instruction directly addressing
personal injury to a minor. However, Nevada Jury Instruction 10.00
addresses Personal Injury and Property Damage. It reads:
In determining the amount of losses, if any, suffered by the
plaintiff as a proximate (legal) result of the accident in question,
you will take into consideration the nature, extent and duration of
the injuries (or damage) you believe from the evidence plaintiff has
sustained, and you will decide upon a sum of money sufficient to
reasonably and fairly compensate plaintiff for the following items
(to be set forth by counsel):
209
Who owns the right to sue for medical expenses? Parent of child? If
parent, does that end at the age of majority when it becomes childs 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 childs services and earnings, and medical expenses incurred
by them in effecting cure. Hogle v. Hall By and Through Evans, 1996, 916 P.2d
814, 112 Nev. 599 (citing NRS 12.080). Therefore, a parent would own the
right to sue for those medical expenses that were incurred by the parent.
As for a childs ownership of the right to sue for medical expenses,
[A]lthough mother or father are statutorily permitted to bring suit for injuries
sustained by their minor child, the right to sue for those damages belongs to minor
unless parent has paid expenses for minor or incurred them him or herself. Id.
The holding in Hogle was recently incorporated into a Nevada federal
district court decision in McGarvey v. Smiths Food Drug Centers, Inc., 2011 WL
1832787 (D.Nev.). In McGarvey, the federal court stated that A minor plaintiff
may not recover damages for medical expenses which her parents were statutorily
obligated to pay, absent a valid waiver.
Id. (citing Hogle v.
Hall By and Through Evans, 112 Nev. 599, 606). The Nevada Supreme Court
has held that in a personal injury action brought to recover damages for injuries
sustained by a minor, the parents and the child have two separate and distinct
causes of action against the tortfeasor. Id.
The McGarvey court also held that The minors recovery may be limited
to such items as pain, suffering, disfigurement and the like. Id. (citing Walker v.
Burkham, 63 Nev. 75, 83 (1946)). However, [i]n a suit by the parents, they
would be entitled to recover only such damages as may have been sustained by
them, such as their loss of the child's services and earnings and medical expenses
incurred by them in effecting a cure. Id.
The McGarvey decision also espoused the policy behind its holding: The
rule vesting in the parent the right to recover medical expenses is grounded in the
proposition that the parent has a duty to care for the child, and that as a result of
that duty, the parent, not the child, is contractually liable for medical expenses
incurred on the child's behalf. Id. (citing Garay v. Overholtzer, 631A.2d 429,
442 (Md.1993); See 4 J.G. Sutherland, Law of Damages, 1250, at 473738 (4th
ed.1916)). Finally, Absent a waiver of this right by the parents, a minor child
may not sue for medical expenses which he or she has not incurred. Id.
Therefore, the minor owns the right to sue for those medical expenses
incurred which have not been paid by the minors parents. In contrast, those
payments made by the parents are recoverable by the parents on the parents
behalf.
210
Finally, Nevada has not addressed the issue of a minor obtaining the right
to sue for medical expenses once the minor reaches the age of majority in an
action for the recovery of medical expenses in a personal injury action. Assuming
that the minor (and not the minors parents) is seeking recovery of medical
payments, the Supreme Court of Nevada has held that when a minor brought a
suit in the name of his guardian, and, upon the minor reaching the age of majority,
the minor should have been substituted as the plaintiff. Ricord v. Central Pac. R.
Co., 15 Nev. 167.
I.
Under Nevada law, a minors heirs may recover any special damages,
such as medical expenses.and funeral expenses. NRS 41.085. In addition,
Nevada case law and Nevada Pattern Jury Instruction 10.14 expand the economic
damages that a surviving parent or guardian may recover to also include the
support and financial benefit which is itself reasonably certain the heir would
have received from the child after the latters majority and during the period of
their common life expectancy. (see Hogle v. Hall By and Through Evans, 1996,
916 P.2d 814, 112 Nev. 599 (citing NRS 12.080); see also Nevada Pattern Jury
Instruction 10.14).
Nevada law also permits a recovery by the minors heirs of exemplary or
punitive damages that the minor would have received had the minor lived. (NRS
41.100(3)). In addition, the estate may recover for the decedents pain and
suffering before death, funeral expenses and penalties a decedent would have
recovered had he lived. (see Nevada Pattern Jury Instructions 10.00 10.09; NRS
41.085; NRS 41.100).
The Supreme Court of Nevada has held that a plaintiff may recover for
pain and suffering, disfigurement, loss of earnings, loss of earning capacity, loss
of future earnings, medical expenses, aggravation of pre-existing injuries or
disabilities, and emotional distress. Gutierrez v. Sutton Vending Service, Inc., 80
Nev. 562, 397 P.2d 3 (1964).
II.
Jury Instructions:
Nevada Civil Jury Instruction 10.14 addresses a wrongful death claim for
a minor. It reads:
The heirs loss of probable support, companionship, society and comfort.
In determining that loss, you may consider not only the benefits that the
heir was reasonably certain to have received from the earnings and
services of his child during the childs minority, but also the support and
211
financial benefit which is itself reasonably certain the heir would have
received from the child after the latters majority and during the period of
their common life expectancy.
You may consider also what loss, if any, the heir has suffered, and will
suffer in the future with reasonable certainty, by being deprived of the
love, companionship, comfort, affection, society, solace or moral support
of the child.
With respect to the matter of life expectancy, you must keep this point in
mind: the prospective period of time that will be of concern to you if you
decide in favor of any heir is only the shorter of the two life expectancies
that of such heir or that of the deceased child, as one can derive a benefit
from the life of another only so long as both are alive.
212
NEW HAMPSHIRE
Matthew R. Shindell
Cheryl A. Possenti
Goldberg Segalla LLP
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 damages

to award to the plaintiff you must consider the evidence in the case and
must not consider, discuss, or speculate upon any events, factors,
possibilities or other matters not admitted in evidence.
The rules of evidence prohibit either party from introducing into evidence
the existence or nonexistence of insurance coverage. This includes motor
vehicle insurance, liability insurance, worker's compensation benefits, and
health insurance. No inferences should be drawn from the failure of the
parties' to mention the existence or nonexistence of insurance coverage.
In determining damages, you may not consider or speculate on whether
the defendant is insured or has the ability to pay an award. Your
responsibility is to determine damages in accordance with the law the
judge will explain to you, without regard to the defendant's financial
circumstances.
Likewise, you may not consider or speculate on whether the plaintiff has
received benefits from other sources in connection with his/her injuries.
This includes worker's compensation benefits, health insurance coverage,
and any other insurance benefits. The law does not permit you to make
any deduction from the plaintiff's damages to reflect benefits which may
have been received from other sources. This is so because the plaintiff
may be required to repay such other sources from any award made in the
case. Your duty is to determine damages based only on the evidence
presented at trial and the legal instructions which the judge will give you.
Nor may you consider any publicity, advertisements or news articles or
items about lawsuits in general for the effect, if any, your verdict might
have on others.
In other words, on the issue of damages, the only proper consideration is
what amount of money will fully, fairly, and adequately compensate the
213
plaintiff for the injuries he/she has sustained as you find from the
evidence.
The plaintiff has the burden to prove that the injuries he/she claims to have
sustained were caused by the defendant's legal fault. He/She also has the
burden to demonstrate the extent of those damages. You are not allowed to
guess, surmise or speculate. You should award the plaintiff an amount to
compensate him/her for his/her loss; the amount of the verdict must make
him/her whole, not a reward or prize, but, on the other hand, not miserly or
stingy.
The reason behind awarding a verdict to the plaintiff is not to punish the
defendant for any wrongdoing but to compensate the plaintiff for the
injuries incurred as a result of the defendant's legal fault. The law cannot
do the impossible by turning back the clock and eliminating the accident
from ever having occurred; it does provide a means by which the plaintiff
is made whole, by awarding full, fair and adequate compensation.
b.
9.6 Elements of Personal Injury Damages
In awarding damages, the following may be considered:

1.
The reasonable value of medical (hospital, nursing) care,

services, and supplies reasonably required and actually
given in the treatment of plaintiff (and the reasonable value
of similar items that will probably be required and given in
the future).
2.
The present value of lost wages to date or wages plaintiff

probably would have earned to date if he/she had not been
injured.
3.
The present value of plaintiff's loss of earning capacity, that

is, any future wages that plaintiff probably would have
earned if he/she had not been injured.
4.
Reasonable compensation for pain and suffering

experienced to date and which will probably be
experienced in the future. This includes compensation for
physical pain, discomfort, fears, anxiety, mental and
emotional distress, and loss of enjoyment of life--that is,
the inability to carry on and enjoy life in a manner had the
accident not occurred.
No definite standard (or method of mathematical calculation) is prescribed

by law by which to fix reasonable compensation for pain and suffering.
214
Nor is the opinion of any witness required as to the amount of such

reasonable compensation. In making an award for pain and suffering you
should exercise your reasonable judgment and the damages you determine
have to be full, fair and adequate in light of the evidence.
c.
9.9 Hedonic Damages
In addition, in a case in which the plaintiff has established permanent

injuries, the jury is entitled to award such compensation as it determines
would fairly and fully compensate the plaintiff for any loss of enjoyment
of life which he/she has sustained as a result of the defendant's legal fault.
This element is separate and distinct from the claim of economic loss and
conscious pain and suffering. It concerns the inability, if any you find
from the evidence, of the plaintiff to carry on and enjoy a life in a manner
had the accident not occurred.
d.
9.14 Enhanced Damages
The purpose of an award of damages is to compensate the plaintiff for

his/her/its loss, not to punish the defendant. You are not permitted to
award money damages for the purpose of punishing the defendant or of
making an example of him/her/it for the public good or of preventing
him/her/it and others from similar conduct.
If you find that plaintiff suffered actual damages that were caused or
substantially caused by the conduct of the defendant, there are certain
circumstances under which the law permits you, but does not require you,
to consider an award of additional damages to reflect aggravating
circumstances. These damages are called "enhanced damages" or "liberal
compensatory damages." You may award these damages only if you find
that the defendant's conduct was more probably than not wanton,
malicious, or oppressive. "Wanton" means reckless indifference or
disregard of consequences. "Malicious" means ill-will, hatred, hostility, or
bad motive. "Oppressive" means abuse of power.
e.
9.21 Loss of Earning Capacity
In tort actions for personal injuries, the plaintiff is entitled to recover

damages for his or her loss or dimunition of earning capacity. This is
measured by the amount of wages that the plaintiff would have earned
during the period of his or her disability had he or she not been injured.
While there is no fixed rule to calculate the amount of damages to be
recovered for loss or dimunition of earning capacity, you may consider
evidence that tends to show that as a result of the injury, the plaintiff's
ability to earn money in the future has been impaired or diminished.
215
II.
Medical Expenses
Generally speaking, "[w]hen a minor child is injured by the negligent act

of a third party two causes of action arise. One by the child itself for personal
injuries upon it; a second by the parent or parents for consequential damages such
as loss of services and expenses caused by the injury to the child." Heath v.
Seymour, 110 N.H. 425, 429, 270 A.2d 602, 605 (1970). In Blue Cross/Blue
Shield v. St. Cyr, 123 N.H. 137, 459 A.2d 226 (1983), the Court reasoned that
because a parent, and not a minor child, is liable for medical expenses incurred on
the child's behalf, the child has no right to recover those expenses. Consequently,
an insurer generally has no subrogation rights it can specifically enforce against
the minor in his or her action for personal injuries. Id. at 141, 459 A.2d at 228-29.
Normally, any rights to which an insurer is entitled under its subrogation clause
pertain solely to the parents' action for consequential damages. Id. at 141, 459
A.2d at 229.
RSA 464-A:42 requires court approval of a settlement on behalf of a
minor before that settlement can take effect. Superior Court Rule 111 provides
that the approval shall be requested by petition, and prescribes the information to
be set forth in that petition. It states that the petition shall contain, where
applicable: "The total amount of the settlement and whether the bills are to be
paid out of the total settlement or are being paid in addition as part of the parent's
claim. If the parent is being paid anything directly, the petition should contain a
statement of the total amount being paid the parent and a specification of the
items covered." Super. Ct. R. 111(c). Hence, while the settlement nominally is
one on behalf of a minor, provision is made for the payment of expenses incurred
by the parent -- expenses which normally would be recovered only in an action by
the parent against the tortfeasor. See Blue Cross/Blue Shield v. St. Cyr, 123 N.H.
137, 141, 459 A.2d 226, 229 (1983); Heath v. Seymour, 110 N.H. 425, 429-30,
270 A.2d 602, 605 (1970). These bills, of course, serve as the "specials" in the
child's tort action and are usually a key factor in negotiating a settlement.
I.
Wrongful Death Statute and Evidentiary Issues

1.
Wrongful Death Statute, RSA 556:12
If the administrator of the deceased party is plaintiff, and the death of such
party was caused by the injury complained of in the action, the mental and
physical pain suffered by the deceased in consequence of the injury, the
reasonable expenses occasioned to the estate by the injury, the probable
duration of life but for the injury, and the capacity to earn money during
the deceased party's probable working life, may be considered as elements
216
of damage in connection with other elements allowed by law, in the same

manner as if the deceased had survived.
In addition, the trier of fact may award damages to a surviving spouse of
the decedent for the loss of the comfort, society, and companionship of the
deceased; however, where fault on the part of the decedent or the
surviving spouse is found to have caused, in whole or in part, the loss
complained of, damages recoverable shall be subject to diminution to the
extent and in the manner provided for in RSA 507:7-d. In no event shall
damages awarded under this paragraph exceed $150,000.
In addition, where the decedent is a parent of a minor child or children, the
trier of fact may award damages to such child or children for the loss of
familial relationship, whether caused intentionally or by negligent
interference; where the decedent is a minor child with a surviving parent
or parents, the trier of fact may award damages to such parent or parents
for the loss of familial relationship, whether caused intentionally or by
negligent interference. However, where fault on the part of the decedent or
the claimant is found to have caused, in whole or in part, the loss
complained of, damages recoverable shall be subject to diminution to the
extent and in the manner provided for in RSA 507:7-d. For purposes of
this paragraph, loss of familial relationship shall include the loss of the
comfort, society, affection, guidance, and companionship of the deceased.
In no event shall damages awarded under this paragraph exceed $50,000
per individual claimant.
2.
Loss of Familial Relationship
The statutory claim for damages attributable to loss of familial relationship

(RSA 556: 12, III) is analogous to a loss of consortium claim under RSA
556: 12, II (decedent spouse) and RSA 507: 8-a (injured spouse). The
plain language of RSA 556: 12, III: (1) tracks the statutory language
providing for damages for loss of consortium in a wrongful death action
(RSA 556: 12, II); and (2) provides for compensation for "loss of comfort,
society, affection, guidance, and companionship of the deceased," which
does not involve bodily injury to the surviving parent or child. Like a loss
of consortium claim, loss of familial relationship is a consequential
damage derivative of the original underlying bodily injury. Guilfoy v.
United Servs. Auto. Ass'n, 153 N.H. 461, 464 (2006)
3.
Punitive Damages
New Hampshire does not permit an award of punitive damages. Bourque

v. Town of Bow, 736 F. Supp. 398, 407 (D.N.H. 1990) ("punitive or
exemplary damages are unavailable"); Panas v. Harakis, 129 N.H. 591,
217
529 A.2d 976 (1987) ("this jurisdiction forbids the award of punitive
damages").
II.
New Hampshire Jury Instructions

a.
16.1 Measure of Damages
In determining damages in this action for wrongful death, you should

consider:
1.
The mental and physical pain, if any, suffered by the decedent;
2. Reasonable expenses occasioned to the estate as a result of the injury

(such as medical and hospital expenses, funeral and burial expenses);
3.
Lost earning capacity.
4. Loss of life--that is, the decedent's inability to carry on and enjoy life
in a way he/she would have for his/her probable life expectancy had
he/she survived.
b.
16.2 Mental and Physical Pain
There is no formula for determining an amount for physical and mental

pain and suffering. The matter is left to your sole discretion based upon
the evidence you have heard.
You may take into consideration the amount of any pain, suffering,
discomfort and mental anguish that plaintiff endured up to his/her death
(caused) (substantially caused) by the injury in question.
c.
16.3 Reasonable Expenses
Reasonable expenses occasioned to the estate by the injury is one of the

elements you should consider. That simply means any reasonable funeral
and burial, medical and hospital expenses occasioned to the estate by the
decedent's death.
d.
16.4 Lost Earning Capacity
In determining the decedent's capacity to earn money, what you are to

determine is the loss to the estate due to the destruction of the decedent's
earning power. The loss to the estate is what you are deciding. In order to
do that, you should consider the following;
218
1. The amount the decedent probably was capable of earning for the
balance of the decedent's probable working life;
2. From that amount you are to deduct the decedent's probable necessary
personal expenses he/she would have during the balance of his/her
lifetime. This figure should not include anything that may have been spent
for the family, just for the decedent's own personal necessary living
expenses.
In making this determination, you should consider:
1.
The decedent's probable working life expectancy but for the injury.
2. The proper rate of interest by which the adjusted gross figure should
be discounted. (This may be offset by the amount of inflation over the
period of decedent's expected lifetime.)
e.
16.6 Loss of Life
The estate of [the decedent] is entitled to be compensated for the loss of

[his/her] life, that is, for the shortening of his/her life. In other words, an
item to be considered as damages recoverable in a case such as this is an
amount of money, based upon the evidence, which recognizes [the
deceased's] inability, by virtue of [his/her] shortened life, to carry on and
enjoy life in a way he or she would have had [he/she] lived longer. Once
again, it is up to you to determine the appropriate amount to compensate
the estate for that loss.
219
NEW JERSEY
Mitchell W. Taraschi
Susan Kwiatkowski
Connell Foley LLP
Roseland, New Jersey
975-535-0500
I.
Economic Damages:
2. Medical and Other Related Expenses. Medical and related expenses
are recoverable.
3. Loss of Wages or Wage-Earning Capacity. Loss of wages or wageearning capacity are recoverable. A parent may institute an action as
the guardian ad litem for injuries to the child, and the parent may also
sue independently for the loss of services of the injured child. Jacobs
v. Jacobs, 99 N.J. Super. 84, 88, 238 A.2d 512, 514 (Ch. Div. 1968).
Lost wages and wage-earning capacity may be difficult to calculate for
a minor who is not yet working outside of the home. However, courts
will consider a childs contributions within the home, for example,
babysitting and household chores, as well as any indications of his or
her expected future contributions.
II.
1. Hedonic Damages. Damages for loss of enjoyment of life are
recoverable. Evoma v. Falco, 247 N.J.Super. 435, 452, 589 A.2d 653
(App. Div. 1991).
2. Emotional Distress. Damages may be awarded for emotional distress
resulting in bodily injury or sickness, even if the plaintiff was not
physically injured in the accident. Falzone v. Busch, 45 N.J. 559, 214
A.2d 12 (1965). Thus, if the plaintiff can demonstrate that the
defendants negligent conduct placed plaintiff in reasonable fear of
immediate personal injury, and plaintiff suffered emotional distress
resulting in bodily injury or sickness, damages are recoverable.
The Falzone holding was extended in 1980 to bystanders who
witnessed the death or serious bodily injury of a close family member,
even where the bystander was not at risk of physical harm. See Portee
v. Jaffee, 84 N.J. 88, 101, 417 A.2d 521 (1980).
220
3. Punitive Damages. Punitive damages are recoverable, but are

dependent upon a compensatory damage award. Nominal damages
cannot support an award of punitive damages. N.J.S.A. 2A:15-5.13.
There is a cap on punitive damages of five times the amount of
compensatory damages or $350,000, whichever is greater. N.J.S.A.
2A:15-5.14(b).
To support an award of punitive damages, a plaintiff must prove by
clear and convincing evidence that the injury was the result of the
defendants acts or omissions, and that the defendants conduct was
malicious or that the defendant acted in wanton and willful disregard
of the plaintiffs rights. N.J.S.A. 2A:15-5.12(a).
III.
Jury Instructions
a. 8.10 Damages Effect of Instructions
1. What sum of money will fairly and reasonably compensate the plaintiff
[name] for damages he/she sustained as a proximate result of the
accident/incident?
A. Pain, Suffering, Disability, Impairment and Loss of Enjoyment of Life?
$__________
B. Past Medical Expenses?
$__________
C. Future Medical Expenses?
$__________
D. Past Lost Wages?
$__________
E. Future Lost Wages?
$__________
TOTAL $__________
2. What sum of money will fairly and reasonably compensate the plaintiff
[name] for the lost of his/her spouses services, society and consortium
that he/she sustained as a proximate result of the accident/incident?2
$__________
b. 8.11A Medical Expenses (Non-Auto)
A plaintiff who is awarded a verdict is entitled to payment for medical
expenses which were reasonably required for the examination, treatment
and care of injuries proximately caused by the defendants negligence (or
other wrongdoing). Medical expenses are the costs of doctors services,
hospital services, medicines, medical supplies and medical tests and any
2
While the Model Jury Charges specifically reference a spouse, similar elements are considered
for injuries to children.
221
other charges for medical services. The amount of payment is the fair and
reasonable value of such medical expenses. You have heard testimony on
whether these medical expenses were fair and reasonable in amount and
whether they were reasonably necessary for the examination, care and
treatment of [plaintiff]. If you determine that any of these bills were not
fair and reasonable to any extent, or that any of these services were not
reasonably necessary to any extent, you need not award the full amount
claimed. In this case, [plaintiff] is seeking the sum of [dollar amount] in
medical expenses. As a result, the upper limit of the award which you may
make for medical expenses is [dollar amount], since you may not award
more than [plaintiff] is seeking.
c. 8.30C Loss of Childs Services and Earnings
Parents are entitled to the services of their infant child, in the
performance of household chores and to the child's earnings, until the
child reaches the age of majority or is emancipated (for example, married)
whichever is later.
After a child reaches majority or is emancipated, the right to loss of
earnings belongs solely to the emancipated child; however the law
recognizes that a child, after the age of majority, may perform services for
the parents, may provide valuable companionship and care as the parents
get older, and may make monetary contributions to the parents.
Parents who are awarded a verdict are entitled to fair and reasonable
compensation for any loss or decrease of the child's earnings, services,
companionship or contributions before the child reaches majority, and any
loss or impairment of their child's services because of injuries sustained as
a result of the defendant's negligence (or other wrongdoing).
The right to sue for medical expenses belongs to the parents. Mathias v.
Luke, 37 N.J.Super. 241, 246, 117 A.2d 177, 180 (App. Div. 1955) (the
assumption of the New Jersey cases has been that the recovery [for future medical
outlays] belongs to the parents.); Jacobs v. Jacobs, 99 N.J. Super. 84, 88, 238
A.2d 512, 514 (Ch. Div. 1968) (Clearly, the parent who actually pays for
medical expenses caused or incurred as a result of tortious conduct is entitled to
recover such expenditures.). Once a child reaches the age of majority, only he or
she not the parents may recover for medical expenses.
Under New Jersey Law, the Wrongful Death Act (N.J.S.A. 2A:31-1 to -6)
and Survivor Act (N.J.S.A. 2A:15-3) provide the statutory causes of action for the
tortious death of a decedent. The Wrongful Death Act is intended to compensate
222
for pecuniary losses. The Survivor Act allows for any personal cause of action the
decedent would have had if he or she had survived. The primary recovery under
the Survivor Act is for pain and suffering of the decedent between injury and
death. See Galante v. May, 364 N.J.Super. 284, 288, 835 A.2d 352 (App. Div.
2003) (Recovery under the Wrongful Death Act compensates the survivors of
the decedent for the pecuniary losses they suffered because of the tortuous
conduct of others. The Survivor Act preserves for the decedents estate any
personal cause of action that decedent would have had if he or she had
survived.).
I.
Economic Damages:
2. Funeral, Medical and Other Related Expenses. Funeral, Medical
and hospital expenses are recoverable. N.J.S.A. 2A:31-5; N.J.S.A.
2A:15-3.
3. Loss of Wages or Wage-Earning Capacity. New Jersey recognizes
the difficulty in determining the future lost earning capacity and value
of future services to the family; however, the caselaw is clear that
while such calculations may be difficult and speculative, they do not
preclude recovery. Green, 85 N.J. at 15, 424 A.2d at 217 ([E]ven
assuming no special circumstances are proven the nature of these
cases has lead our courts to allow damages even though the inferences,
and the estimate of damages, are based on uncertainties.); Carey v.
Lovett, 132 N.J. 44, 68, 622 A.2d 1279, 1291 (1993) (The problem
inherent in evaluating the economic value of a newborns life is
obvious. No one can know much, if anything, about the infant and his
or her future economic worth. That difficulty, however, should not
preclude any award.). While an infant may appear to present a
financial burden on his or her family due to the costs associated with
raising a child, the New Jersey courts recognize that such a view
would result in a return to the outmoded doctrine that a child is a
liability not an asset. Borhman v. Pennsylvania Railroad Co., 23
N.J. Super. 339, 409, 93 A.2d 190, 195 (App. Div. 1952).
The amount of the recovery under [Wrongful Death Act] is based
upon the contributions, reducible to monetary terms, which the
decedent reasonably might have been expected to make to the
survivors, and is not related to their needs. Dubil v. Labate, 52 N.J.
255, 259, 245 A.2d 177 (1968); Curtis v. Finneran, 83 N.J. 563, 570,
417 A.2d 15 (1980). The calculation of those losses involves two
basic determinations: is it probable that decedent would have
contributed to the survivors and, if so, to what extent would
contributions have been made? Johnson v. Dobrosky, 187 N.J. 594,
607 (2006). While expert testimony is not necessary to place a value
223
on prospective services, it is considered helpful to avoid leaving the

jury to guess as to those values. Correia v. Sherry, 335 N.J.Super. 60,
69, 760 A.2d 1156 (Law Div. 2000).
In contrast, prospective post-death lost-earning capacity is not
recoverable pursuant to the Survival Act. Pollock v. Barrickman, 610
F.Supp. 878, 879 (D.N.J. 1985). Recovery under the Act only
contemplates damages for pain and suffering between injury and
death, and lost earnings between injury and death. Id.
II.
1. Loss of Society and Companionship. While damages for the
pecuniary value of services are recoverable, the pecuniary value does
not include the emotional value of these services. Green, 85 N.J. at 12,
424 A.2d at 215 (Companionship and advice in this context must be
limited strictly to their pecuniary element. The command of the statute
is too clear to allow compensation, directly or indirectly, for emotional
loss.); Carey v. Lovett, 132 N.J. 44, 67-68, 622 A.2d 1279, 1291
(1993) (Not compensable under the Wrongful Death Act is the
parents emotional distress caused by the death of a child.).
2. Pain and Suffering. Damages for pain and suffering are recoverable
under the Survivor Act, N.J.S.A. 2A:15-3. However, damages are
recoverable only for conscious pain and suffering. Smith v. Whitaker,
160 N.J. 221, 236, 734 A.2d 243 (1999).
3. Punitive Damages. Punitive damages are not recoverable in wrongful
death actions. Kern v. Kogan, 93 N.J.Super. 459, 469, 226 A.2d 186,
192 (Law Div. 1967) (The New Jersey wrongful death act is
essentially remedial rather than penal); Goss v. American Cyanamid
Co., 278 N.J. Super. 227, 241, 650 A.2d 1001 (App. Div. 1994) (An
award of damages in a wrongful death action is not intended to punish
the tortfeasor, but only to replace that which the decedent likely
would have provided.)
In contrast, a survival claim allows for the recovery on any personal
cause of action that the decedent would have had if he or she had
survived. Therefore, claim for punitive damages may be sustained
under a survival action. Smith v. Whitaker, 160 N.J. 221, 243, 734
A.2d 243 (1999).
4. Loss of Enjoyment of Life. Hedonic damages are not recoverable
under the Wrongful Death Act, Smith v. Whitaker, 160 N.J. at 231-32,
however, they are recoverable under the Survival Act. See Clement v.
Consolidated Rail Corp., 734 F. Supp. 151 (D.N.J. 1989) (estate may
224
make a claim for hedonic damages under Survivors Act, but measure
of such damages is limited to the time between injury and death).
5. Emotional Distress. Claims for emotional damage are limited. The
Wrongful Death Act does not recognize damage claims for emotional
suffering where the claimant did not actually witness the death.
DeFelice v. Beall, 274 N.J.Super. 592, 599 (App. Div. 1994).
Moreover, limiting damages to pecuniary damages means that
damages cannot be sought for mental anguish and distress, loss of
consortium, and loss of companionship. Thomas v. Ford Motor Co.,
70 F.Supp.2d 521, 532 (D.N.J. 1999).
III.
Jury Instructions
a. 8.42 Survival Action
In a survival action, the administrator as plaintiff is seeking damages for
the decedent's hospital and medical expenses, loss of earnings as well as
any disability and impairment, loss of enjoyment, and pain and suffering
which the decedent sustained between this accident and his/her death.
Under the law, he/she is entitled to recover the damages which the
decedent sustained during this period of time.
b. 8.43 Wrongful Death
What is Not Recoverable
A. In this category of damages, you are not to consider any physical
injuries or suffering that the decedent may have sustained, such as pain
and suffering or disability.
B. You are also not to consider any emotional distress, anguish or grief the
survivors may have suffered as a result of the decedents death, or any loss
of emotional satisfaction the survivors may have derived from the society
and companionship of the decedent. These matters, although very real and
distressing, cannot be considered in determining the extent of the financial
loss suffered by the survivors.
What is Recoverable
Financial loss includes not only the actual monies the decedent would
have earned and contributed for the benefit of the survivors, but also the
reasonable value of the services, assistance, care, training, guidance,
advice, counsel and companionship the survivors would have received
from the decedent had he/she lived.
A. With regard to the decedents earnings, you should consider the net
earnings after taxes as of the time of the decedents death. You should also
225
give due regard to any evidence concerning the decedents potential future
income during the balance of his/her working life expectancy. The income
figure you use should be net income, that is, income after taxes. This is
because net income represents that portion of the decedents income which
would have been available for the benefit of the decedents survivors. Net
income also includes fringe benefits, such as monies the decedent would
have obtained in the form of employer contribution to a retirement plan.
Since money used for the decedents personal maintenance and expenses
would not have been available for the benefit of the survivors, you must
subtract the decedents personal expenses from the net income. You must
find to what extent the decedents net earnings were necessary for his/her
personal needs and deduct that amount from the net income.
B. You may also consider the benefit the survivors would have received
from the decedent in the form of services, assistance, guidance and
training. In making such an award, you must determine the reasonable
value of the services or benefits that will be lost by reason of the
decedents death.
C. In addition to the loss of anticipated direct financial contributions from
the decedent to the survivors, as I explained previously, you should also
consider the pecuniary value of the loss of the decedents anticipated
services to the survivors. This may include things such as chores the
decedent would have performed including household chores, babysitting,
etc. You should also consider the value of the loss of the companionship,
advice and guidance of the deceased as the survivors grow older. You
must remember, however, that your award for damages for these losses
will be confined to their financial value and should not include any
amount of emotional loss.
Bear in mind that in fixing an award for services, companionship, care,
advice and counsel, you must distinguish between their emotional value
and their financial or economic value. We recognize that [children,
parents, spouse] may provide valuable services such as companionship,
care, advice and guidance over time as the survivor(s) face(s) advanced
age or declining health. Remember, however, that no pecuniary value may
be attached to the emotional satisfaction gained by the parent, spouse or
child if the deceased has performed these services.
226
NEW MEXICO
Kathleen Stimeling
Lauren Quint
Schiff Hardin LLP
I.
Economic Damages:
expenses incurred as a result of wrongful or negligent act or omission
or breach of warranty are recoverable. Medical expenses include the
reasonable expense of necessary medical care, treatment and services
received (including prosthetic devices and cosmetic aids) and the
present cash value of the reasonable expenses of medical care,
treatment and services reasonably certain to be received in the future.
See Vaca v. Whitaker, 519 P.2d 315 (N.M. Ct. App. 1974).
3. Loss of Wages or Wage-Earning Capacity. Loss of Wages or
Wage-Earning Capacity is recoverable. See Higgins v. Hermes, 553
P.2d, 379 (N.M. Ct. App. 1976). The loss of earning capacity by a
minor is determined by the present cash value of earning capacity
reasonably certain to be lost in the future after the plaintiff has reached
the age of 18 years. See N.M. Stat. Ann. Civ. Uniform Jury Instr. 131809.
II.
1. Hedonic Damages: The New Mexico Supreme Court held that the
non-pecuniary value of a decedent's life is compensable under the New
Mexico Wrongful Death Act. Sears v. Nissan 872 P.2d 840 (N.M.
1994). New Mexico permits proof of nonpecuniary damages resulting
from loss of enjoyment of life, regardless of whether the injured party
is deceased. See Sena v. N.M. State Police 892 P.2d 604 (N.M. Ct.
App.1995).
2. Disfigurement. The right to recovery for disfigurement is settled
under New Mexico law.
expense. See Alberts v. Schultz 975 P.2d 1279 (N.M. 1999).
Calculation of damages includes lost earnings and earning capacity,
the reasonable value of medical treatment including prosthetics, and
227
non-medical expenses including pain and suffering. See N.M. STAT.

ANN. Uniform Jury Instr. Civ. 13-1809.
4. Punitive Damages. It is the established law of New Mexico that
punitive or exemplary damages may be awarded only when the
conduct of the wrongdoer may be said to be maliciously intentional,
fraudulent, oppressive, or committed recklessly or with a wanton
disregard of the plaintiffs' rights. Samedan Oil Corp. v. Neeld 577
P.2d 1245 (N.M. 1994). To prove punitive damages, one must prove
conduct more egregious than gross negligence. Id. Punitive damages
cannot be recovered without a recovery of compensatory or nominal
damages. Sanchez v. Clayton, 877 P.2d 567 (N.M.1994). The burden
of proof generally required in New Mexico for the recovery of
punitive damages is proof by the preponderance of the evidence. See
United Nuclear Corp. v. Allendale Mut. Ins. Co. 709 P.2d 649 (N.M.
1985).
5. Emotional Distress. Bystander recovery is allowed when there is 1) a
marital or intimate familial relationship between the victim and the
plaintiff, 2) severe shock caused by contemporaneous sensory
perception of the accident, and 3) proof that the accident resulted in
physical injury or death to the victim. See Folz v. State of New Mexico
797 P.2d 246 (N.M.1990). There may be other instances in which a
purely emotional injury resulting from negligent conduct gives rise to
a cause of action, however, at present New Mexico law is not
sufficiently developed in this area to permit the drafting of a uniform
jury instruction. See N.M. STAT. ANN., Civ. Uniform Jury Instr. 131630.
6. Pain and Suffering: If a plaintiff in a personal injury case is entitled
to recover at all, he is entitled to damages for his injuries, for pain and
suffering, and for mental injury arising from the accident. Jones v.
Pollock, 383 P.2d 271 (N.M.1963). See also Martinez v. Teague 631
P.2d 1314, 1320 (N.M. 1981).
III.

Negligence General; with preexisting conditions
If you should decide in favor of the plaintiff on the question of liability,
you must then fix the amount of money which will reasonably and fairly
compensate [him] [her] for any of the following elements of damages
proved by the plaintiff to have resulted from the negligence [wrongful
conduct] as claimed:
228
(NOTE: Here insert the proper elements of damages and, in a personal

injury case, the instructions which immediately follow may be applicable
but, in other types of litigation, the trial lawyers will need to insert here the
proper elements applicable under the proven facts and the particular law
governing the specific circumstances.)
Whether any of these elements of damages have been proved by the
evidence is for you to determine. [If you find that, before any injury in this
case, plaintiff was already impaired by a physical or emotional condition,
plaintiff is entitled to compensation for the aggravation or worsening of
the condition, but not for elements of damages to the extent they were
already being suffered.] [However, damages are to be measured without
regard to the fact plaintiff may have been unusually susceptible to injury
or likely to be harmed. The defendant is said to take the plaintiff as he
finds [him] [her], meaning that the defendant, if liable, is responsible for
all elements of damages caused by the defendant's conduct even if some of
the plaintiff's injury arose because the plaintiff was unusually susceptible
to being injured.]
Your verdict must be based upon proof and not upon speculation, guess or
conjecture. Further, sympathy or prejudice for or against a party should
not affect your verdict and is not a proper basis for determining damages.
N.M. STAT. ANN. CIV. Uniform Jury Instr. Civ. 13-1601.
Who owns the right to sue for medical expenses? Parent or child? When
does it becomes the childs claim?
Either a minor or his or her parent can recover for the minors medical and
non-medical expenses. See Lopez v. Sw. Cmty. Health Serv., 833 P.2d 1183 (
N.M. Ct. App. 1992). The court found no legitimate reason why recovery for
medical damages should belong only to the parent, as long as the tortfeasors are
protected against double recovery. Id.
Prior to Lopez, minor plaintiffs could not recover damages in their own
capacity. Instead their future medical expenses were awarded to parents who were
legally bound to pay the expenses. The Lopez decision did not eliminate the role
of the parents. Instead it allows either the parent or the child to sue and recover
the damage award. Id.; see also Jessica Sutin Tort LawEither the Parents or the
Child May Claim Compensation for the Childs Medical and Non-Medical
Damage: Lopez v. Southwest Community Health Services, 23 N.M.L. REV. 373
(1993).
229
Damages Recoverable in Minor Wrongful Death Claims and Minor Survival

Actions
Under the Wrongful Death Act, New Mexico permits a personal
representative to recover an award of damages both for the value of the loss of
earnings of a decedent and for the non-pecuniary value of the decedent's life itself.
See Romero v. Byers, 872 P.2d 840 (N.M. 1994).
The Act is the exclusive remedy governing wrongful death actions in New
Mexico. Stang v. Hertz Corp., 463 P.2d 45, 48-49 (N.M. Ct. App.1969).
New Mexicos survival statute states that [i]n addition to the causes of
action which survive at common law, causes of action for mesne profits, or for an
injury to real or personal estate, or for any deceit or fraud, shall also survive, and
the action may be brought, notwithstanding the death of the person entitled or
liable to the same. The cause of action for wrongful death and the cause of action
for personal injuries, shall survive the death of the party responsible therefor.
N.M. STAT. ANN. 37-2-1. It follows that the damages addressed below are also
applicable to survivor claims.
I.
Economic Damages:
2. Funeral, Medical and Other Related Expenses. Funeral and burial
expenses are recoverable by parents for the wrongful death of their
minor child. Williams v. Town of Silver City, 502 P.2d 304 (N.M. Ct.
App.1972). Additionally, in New Mexico, not only may a plaintiff
recover the value of the life of the decedent, but the plaintiff may also
prove up medical and hospital expenses which were incurred by the
decedent before death. Hall v. Regents of Univ. of New Mexico, 740
P.2d 1151, 1152 (N.M.1987).
II.
1. Loss of Society and Companionship. A parent cannot file an action
for loss of filial consortium for their child. Wilson v. Galt 668 P.2d
1104 (N.M. Ct. App.1983).
2. Pain and Suffering. New Mexico law allows damages to be awarded
for the pain and suffering experienced by the deceased between the
time of injury and death. Stang v. Hertz Corp., 463 P.2d 45, 48-49
(N.M. Ct. App. 1969).
230
3. Punitive Damages. Punitive damages are available in wrongful death

actions. See N.M. STAT. ANN. 41-2-3 ([the] jury in every such action
may give such damages, compensatory and exemplary, as they shall
deem fair and just.)
4. Loss of Enjoyment of Life. New Mexico permits proof of
nonpecuniary damages resulting from loss of enjoyment of life,
regardless of whether injured party is deceased. See Sena v. N.M. State
Police 892 P.2d 604 (N.M. 1995).
5. Emotional Distress. See discussion above regarding personal injury.
III.
Jury Instruction
Wrongful Death
This lawsuit has been brought by __________ (plaintiff) [individually
and] on behalf of the surviving beneficiaries of __________ (name of
decedent) who is now deceased. The surviving beneficiaries are
__________ (names of surviving beneficiaries).
New Mexico law allows damages to be awarded to the surviving [spouse],
[parent(s)], [grandparent(s)], [other familial caretaker(s)] [and]
beneficiaries if the death or the related damages described in this
instruction were caused by the wrongful act, neglect, or default of another.
If you should find for __________ (plaintiff) on the question of liability,
you must then fix the amount of money which you deem fair and just for
the life of __________ (name of decedent), including in your award
compensation for any of the following elements of damages proved by the
evidence:
1.
The reasonable expenses of necessary medical care and
treatment and funeral and burial;
2.
The pain and suffering experienced by the deceased
between the time of injury and death;
3.
The lost earnings, the lost earning capacity and the value of
the lost household services of the deceased considering the
deceased's age, earning capacity, health, habits, and life
expectancy. In considering loss of earnings or earning capacity,
deductions must be made for income taxes, social security taxes,
other taxes, and personal living expenses of the deceased. The
damages set forth in this paragraph are damages for future loss of
231
money and are paid in a lump sum. Therefore, a reasonable

discount must be made for the future earning power of the
damages awarded;
4.
The value of the deceased's life apart from [his] [her]
earning capacity;
5.
The mitigating or aggravating circumstances attending the
wrongful act, neglect or default;
6.
[The emotional distress to the [spouse], [parent(s)],
[grandparent(s)], [other familial caretaker(s)] caused by the loss of
[society,] [guidance,] [companionship] and [sexual relations]
enjoyed with the deceased;]
7.
The loss of guidance and counselling to the deceased's
minor children.
8.
You may also consider the loss to the beneficiaries of other
expected benefits that have a monetary value. While the presence
or absence of a measurable monetary loss to beneficiaries is a
factor for consideration, damages may be awarded even where
monetary loss to the surviving beneficiaries cannot be shown.
The property or wealth of the beneficiaries or of the defendant is not a
legitimate factor for your consideration.
The guide for you to follow in determining fair and just damages is the
enlightened conscience of impartial jurors acting under the sanctity of
your oath to compensate the beneficiaries with fairness to all parties to this
action. Your verdict must be based on evidence, not on speculation, guess,
or conjecture. You must not permit the amount of damages to be
influenced by sympathy or prejudice, or by the grief or sorrow of the
family [or the loss of the deceased's society to the family].
N.M. STAT. ANN. Uniform Jury Instr. Civ. 13-1830
232
NEW YORK
Saleel V. Sabins
AnnMarie Giblin
Cheryl A. Possenti
Goldberg Segalla, LLP
Buffalo, New York
716-566-5400
I.
Special Rules Related to Lawsuits brought by Minors in NY

-
CPLR 1207; 1208 - The settlement of any Infants Case must be

submitted to the Court for a hearing to determine if sufficient. If so, an
Infants Compromise Order will be issued authorization the settlement.
CPLR 1201 - The infant plaintiff can be represented in the lawsuit

by either their parent or a guardian ad litem.
CPLR 208 The statute of limitations shall be tolled for an infant as

follows:
a. If the status of limitations is 3 years or more, the time is extended
until 3 years after the disability due to infancy ceases;
b. If the statute of limitations is less than 3 years, the time shall be
extended by the period of disability due to infancy.
c. The time for commencement of the action shall not be extended
beyond 10 years after the cause of action accrues for infants in
medical, dental or podiatric malpractice cases.
d. The tolling provisions of CPLR 208 do not apply to actions
governed by the Warsaw Convention. Kahn v. Trans World
Airlines, Inc., 82 A.D.2d 696.
e. Any derivative claim by the parent is NOT tolled by CPLR 208
and will be deemed untimely if not brought within prescribed
period. D'Andria v. County of Suffolk, 112 A.D.2d 397.
When an infant becomes of age during the pendency of litigation, it is

proper to substitute the infant for the parent or guardian ad litem.
McCarthy, Jr., v. Anable, 169 Misc. 595.
233
II.
Right to sue for Medical Expenses Parent v. Child
The parent is only allowed to recover those monies actually spent prior to
trial to protect interest of infant. Clarke v. Eight A.R.Co., 238 NY 246; Benetiz v.
Trumble, 57 AD2d 716. Any future medical expenses awarded can only be
awarded to infant-plaintiff. Id. See also NY PJI 2:318 Damages Derivative
Action Re Child Expenses Incurred:
If you find that infant (AB) is entitled to recover, you will award
(plaintiff-father, plaintiff-mother) as damages the fair and reasonable
value of the expenses (he, she) incurred by reason of the medical, hospital,
and nursing services and supplies that were necessary as a result of ABs
injuries. (If the evidence supports a claim for future damages, state: you
may not, however, award to the parent any amount for such expenses as
may be incurred in the future, since you are to consider future expenses
only in connection with ABs claim in this case).
III.
Damages Recoverable/Jury Instructions

a. Injury, Pain and Suffering
NY PJI 2:280 Damages Personal Injury Injury and Pain and
Suffering
If you decide that defendant is liable, plaintiff is entitled to recover a sum
of money which will justly and fairly compensate (him, her) for any injury
and conscious pain and suffering to date caused by the defendant. [If there
is an issue relative to the level of plaintiffs awareness, the following
should be charged.] Conscious pain and suffering means pain and
suffering of which there was some level of awareness by plaintiff
(decedent).
NY PJI 2:280.1 To be read is loss of enjoyment of life is an element of
plaintiffs claim
In determining the amount, if any, to be awarded plaintiff for pain and
suffering, you may take into consideration the effect that plaintiffs
(decedents) injuries (have had on plaintiffs ability to enjoy life up to the
time of death). Loss of enjoyment of life involves the loss of the ability to
perform daily tasks, to participate in the activities which were a part of the
persons life before the injury, and to experience the pleasures of life.
234
However, a person suffers the loss of enjoyment of life only If the person
is aware at some level, of the loss that (he, she) has suffered.
If you find that plaintiff (decedent), as a result of (his, her) injuries,
suffered some loss of the ability to enjoy life and that plaintiff (decedent)
was aware, at some level, of a loss, you may take that loss into
consideration in determining the amount to be awarded to plaintiffs.
b. Permanent Injury
NY PJI 2:281 Damages Personal Injury Future Permanence Life
Expectancy Tables
With respect to any of the plaintiffs injuries or disabilities, the plaintiff is
entitled to recover for (his, her) ability to enjoy life. In this regard you
should take into consideration the period of time that the injuries or
disabilities are expected to continue. If you find that the injuries or
disabilities are permanent, you should take into consideration the period of
time that the plaintiff can be expected to live. In accordance with
statistical life expectancy tables, AB has a life expectancy of [insert
number] years. Such a table, however, provides nothing more than a
statistical average. It neither guarantees that AB will live an additional
[insert years] or means that (he, she) will not live for a longer period. The
life expectancy figure I have given you is not binding upon you, but may
be considered by you together with your own experience and the evidence
you have heard concerning the condition of ABs health, (his, her) habits,
employment and activities in deciding what ABs present life expectancy
is.
c. Emotional Damages
NY PJI 2:284 Damages Personal Injury Shock, Emotional Distress
and Physical Consequences Thereof
If you find that the plaintiff is entitled to recover from the defendant, you
must also include in your verdict damages for any mental suffering,
emotional and psychological injury and any physical consequences
resulting from the emotional distress caused by the wrongful act of the
defendant.
235
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 CDs negligence from the time of
the accident to today. Moreover, if you find that as a result of those
injuries AS has suffered a reduction in (his, her) capacity to earn money in
the future, then AB is also entitle to be reimbursed for loss of future
earnings.
Any award you make for earnings lost to date must not be the result of
speculation; any award must be calculated from the number of days that
you find AB was disabled from working by the injuries and the amount
that you find AB would have earned had (he, she) not been disabled.
Any award you make for reduction of ABs earning capacity in the future
should be determine on the basis of ABs earnings before the accident, the
condition of ABs health, (his, her) prospects for advancement and the
probabilities with respect to future earnings before the accident, the extent
to which you find that those prospects or probabilities have been reduced
by the injuries, the length of time that you find AB would reasonably be
expected to work had (he, she) not been injured, the nature and hazards or
ABs employment and any other circumstances which would have an
effect on ABs earnings capacity.
AB is now [insert number] years of age and has a (life expectance
according to the mortality tables , work life expectancy according to the
work life expectancy tables in evidence) of [insert number] more years.
Such tables are, of course, nothing more than statistical averages. They
neither assure that AB will have the span of (working) life I have given
you nor assure that ABs span will not be greater. The figures I have
given you are not binding upon you, but may be considered by you
together with your own experience and the evidence you have heard in
determining what ABs (life, work life) expectancy is. If you find that AB
is entitled to an award for reduction in earning capacity in the future, you
will fix the dollar amount of such reduction over the entire period that you
find AB will suffer such reduction and include that amount in your
verdict. In your verdict you will state separately the amount awarded for
loss of earnings to date, if any, and, if you make an award for loss of
236
future earnings, you will stated in your verdict the amount awarded and
the period of years over which such award is intended to provide
compensation. Do not state an amount per year but only a total amount
for the entire period.
1.
Case law
The loss of future earnings as to an infant plaintiff is a proper

measure of damages. Kavanaugh v. Nussbaum, 129 AD2d 559,
mod on other grounds 71 NYS2d 833; Johnson v. Colvin, 145
AD2d 846; Campolo v. Yonkers, 137 AD2d 480. The award
cannot be based upon speculation, and must be established with
reasonable certainty. Davis v. New York, 264 AD2d 379, amended
on other grounds 1999 WL 637163; Novko v. State, 285 AD2d
696.
e. Loss of Earnings (Unrealized Occupation)
NY PJI 2:291 Damages Personal Injury Loss of Earnings Unrealized
Occupation or Profession
Plaintiff AB has offered evidence that at the time of the injury (he, she)
was pursuing a course of training to become a [state occupation or
profession]. If the injuries sustained by AB (have interfered, are
reasonably certain to interfere in the future) with ABs training, you may
award such damages as you find that AB sustained because the injuries
(delayed AB, prevented AB from) attaining the earning capacity of that
(occupation, profession). In deciding this issue, you may consider ABs
talent, the training received, the opportunities and recognition already had,
the future opportunities that (he, she) (has, was likely to have), as well as
the likelihood, risks and contingencies involved in achieving success in
the (occupation, profession).
1. Case Law
The New York Courts allow the assessment of damages based on
future earning potential even if the plaintiff was just training for
the career. Grayson v. Irvmar Realty Corp., 7 AD2d 436.
However, there must be evidence that the infant-plaintiff might
have pursued the career in question or had some probability of
qualifying for such career. Dobski ex. Rel. Dobski v. Schenectady,
272 AD2d 662; Schwall v. Ambrosio, 45 AD2d 732.
237
f. Loss of Earnings (Special Talent)

NY PJI 2:292 Damages Personal Injury Loss of Earnings Special
Talent
Plaintiff AB has offered evidence that (he, she) has been studying for a
career (state career, e.g.: in opera, the theatre, music) for which (he, she)
has special talent. A person who has special talents is entitled to recover
damages for wrongful injury to the development of those talents. ABs
recover is not necessarily limited by the amount (he, she) actually earned
before the injury. However, in deciding the amount of damage, you must
consider the training necessary, the success and recognition already
realized, the opportunities likely to be available to AB in the future, the
risk and contingencies involved in achieving success, and the overall
probability of success in the chosen field. In short, what is being valued is
the probability that AS would have in fact realized future earnings from
(his, her) talent.
1. Case Law
While the jury may consider the opportunity for recognition,
reward and opportunity for talents that have economic value, the
jury may not assume that a young student will earn the same as an
established professional. Grayson v. Irvmar Realty Corp., 7 AD2d
436.
I.
Damages Recoverable
New York has steadfastly restricted recovery to pecuniary injuries and

denied recovery for grief or anguish, loss of society, affection, conjugal
fellowship and consortium. Loss of support, voluntary assistance and possible
inheritance, as well as medical and funeral expenses incidental to death, are
injuries for which damages may be recovered. Gonzalez v. New York City
Housing Authority, 572 N.E.2d 598, 601 (N.Y.1991).
1. Special Damages. N.Y. EPTL 5.4-3: Reasonable expenses of
medical aid, nursing, and attention incident to the injury causing death
and the reasonable funeral expenses of the decedent paid by the
distributees . . . shall be proper elements of damages.
238
2. General Damages. N.Y. EPTL 5.4-3: The damages awarded to the

plaintiff may be such sum as the jury
. . . deems to be fair and just compensation for the pecuniary injuries
resulting from decedents death to the persons for whose benefit the
action is brought. In determining the fair and just compensation for
the pecuniary loss resulting from the death of a minor to the persons
for whose benefit the action is brought, the following considerations
are relevant:
The minors age and life expectancy;
The minors state of health;
the probability of the minor having means to support

his/her parents, (if the latter are in need);
current and probable future earnings during minority above

support;
the voluntary assistance which the minor might have given

to his/her parents;
the health, age, and condition of those for whose benefit the
action is brought;
the minors earning potential -- i.e., character, quality,

intelligence, present and future earnings; and
the cost of the childs maintenance and education during

minority.
Windus v. Baker, 67 A.D.2d 833, 834 (N.Y. App. Div. 1979); Hanson
v. County of Erie, 507 N.Y.S.2d 778 (N.Y. App. Div. 1986).
A parent who does not abandon a decedent child is entitled to share the
wrongful death damages with the other parent in proportion to the
pecuniary injuries suffered. N.Y. EPTL 5-4.4 (a)(1) That statutory
language empowers the hearing court to determine the pecuniary loss
of each parent and to distribute the damages accordingly and also
serves as authority to deprive a surviving parent of a share of such
damages upon a finding that no pecuniary injury was suffered by that
parent. Hanson, 507 N.Y.S.2d at 779-780.
239
In determining whether a plaintiff may reasonably expect to sustain

pecuniary loss as a result of the minors death, it is relevant whether
the minor-decedent would have been legally obligated to support the
plaintiff and, if not, whether there is any evidence that the decedent
would have volunteered to do so. Estate of Angelica Pesante v.
Mundell, 829 N.Y.S.2d 390, 393 (N.Y. App. Div. 2007). A parentplaintiffs damages also consider the probability that the parent would
benefit from earnings that the child might have accumulated (not
limited to minority) provided there is some adequate basis for this
calculation, and it is not left to speculation. In any wrongful death
action involving a child, the absence of dollars and cents proof of
pecuniary loss does not relegate the distributees to recovery of nominal
damages only but rather, since it is often impossible to furnish direct
evidence of pecuniary injury, calculation of pecuniary loss is a matter
resting squarely within the province of the jury. Lopez v. Gomez, 305
A.D.2d 292-293 (N.Y. App. Div. 2003).
New York also permits a plaintiff in a wrongful death action to recover
damages for conscious pain and suffering of the minor-decedent
provided there is some evidence of such pain and suffering which may
include the consideration of any terror experienced by the minor.
Estate of Angelica Pesante, 829 N.Y.S.2d at 392. Loss of enjoyment of
life is not a separate element of damages deserving a distinct award but
is, instead, only a factor to be considered by the jury in assessing
damages for conscious pain and suffering. Nussbaum v. Gibstein, 535
N.E.2d 618, 619 (N.Y.1989).
3. Punitive Damages. Punitive damages are recoverable if they had
been recoverable in the event of the minors survival. N.Y. EPTL
5.4-3. Punitive damages can only be awarded in the event of conduct
found to be wanton, reckless or malicious. Rivera v City of New York,
836 N.Y.S. 2d 108, 113 (N.Y. App. Div. 2007).
4. Interest. N.Y. EPTL 5.4.3 provide that a plaintiff is permitted to
recover pre-judgment interest (set at 9 percent) from the date of death
forward until the date of payment on any principal amount obtained by
verdict or judgment.
240
II.
Evidentiary and other considerations
The statutory cause of action for all wrongful death cases under the New
York Estates Powers and Trusts Law (EPTL) requires proof of (1) death; (2)
caused by the wrongful conduct of a defendant; (3) giving rise to a cause of action
which could have been maintained, at the moment of death, by the decedent if
death had not ensued; (4) survival by distributees who have suffered pecuniary
loss by reason of the death; and (5) appointment of a personal representative of
the decedent. N.Y. EPTL 5.4.1. The law of New York also allows a plaintiff to
benefit from more liberal inferences from the evidence presented so the plaintiff
has a lesser burden of proof in wrongful death cases. See Noseworthy v. City of
New York, 80 N.E. 2d 744, 751 (N.Y. 1948).
According to N.Y. EPTL 5.4-1, the proper plaintiff in a wrongful death
action is the personal representative of a decedent and that party must bring the
suit within 2 years after the decedents death.
III.
New York Pattern Jury Instruction

New York Pattern Jury Instruction 2:320 Damages-Action for
Wrongful Death and Conscious Pain and Suffering, Including Such
Actions Based on Medical, Dental and Podiatric Malpractice
Commenced Before July 26, 2003.
The law limits damages resulting from ABs death to pecuniary injuries,
which means economic losses. You may not consider or make any award
for sorrow, mental anguish, injury to feelings, or for loss of
companionship. You must determine the economic value of AB to [list
the distributees by name] on [give date of death], when AB died. In
determining that economic value, you should consider the character, habits
and ability of AB; the circumstances and condition of [list the distributees
by name]; the services that AB would have performed for (him, her them);
the portion of (his, her) earnings that AB would have spent in the future
for the care and support of [list the distributees by name]; the age and life
expectancy of AB; the ages and life expectancies of [list the distributees
by name]; and [where the distributees included children], the intellectual,
moral, and physical training, guidance and assistance that AB would have
given the children had (he, she) lived. You should also consider the
amount, if any, by which AB, if (he, she) had lived, would have increased
(his, her) estate from (his, her) earnings and thus added to the amount that
would have been inherited from (him, her), provided that you find that at
241
least one of [list the distributees by name] would have been alive to inherit
from (him, her) had AB not died on [state date of death].
Your verdict will include answers to the following questions, which will
be submitted to you in writing:
1. State the total amount of economic loss, if any, to each of [list the
distributees by name] resulting from ABs death. [In cases tried in the
Second Department, state: the total amount of economic loss, if any, to
(list the distributees by name) resulting from ABs death, without
specifying the amount of economic loss for each individual]
2. For each person for whom an award is made in your answer to
Question No. 1, state the period of years over which the amount awarded
for such economic loss is intended to provide compensation.
3. State the amount awarded, if any, to ABs (spouse) for the following
items of damages:
(a)
Medical expenses;
(b)
Nursing and other expenses;
(c)
Funeral expenses, including any burial lot.
4. State the amount awarded for the following items of damage, if any,
incurred by AB prior to (his, her) death or for which ABs estate is
responsible:
(a)
Medical expenses;
(b)
Nursing and other expenses;
(c)
Dental expenses;
(d)
Loss of earnings;
(e)
Impairment of earning ability;
(f)
Custodial care;
(g)
Rehabilitation services;
(h)
Pain and suffering;
(i)
Funeral expenses, including a burial lot.

242
If you decide not to make an award as to any item, you will insert the
word none as to that item.
243
NORTH CAROLINA
Richard Boyette
Alka Srivastava
Cranfill Sumner & Hartzog LLP
Raleigh, North Carolina
(919) 828-5100
I.
Economic Damages:
1. Medical and other related expenses. A parent is liable for medical
expenses incurred in the necessary treatment of his minor
unemancipated child; therefore, the cause of action to recover for such
expenses generally lies with the parent and not with the child. Kleibor
v. Rogers, 144 S.E.2d 27, 29 (N.C. 1965). However, there are certain
exceptions to this general rule.
The right of action to recover medical expenses after reaching the age
of majority lies with the minor. If the parent waives his or her right to
recover (medical expenses incurred before the minor reaches age of
majority) by appearing in the action as Guardian ad litem on behalf of
minor, the minor is allowed to recover the full amount to which both
he and the parent were entitled. Vaughan v. Moore, 366 S.E.2d 518,
520 (N.C. App. 1988).
2. Loss of earnings or wage-earning capacity. When a minor is injured
by the negligence of another, the minor may have a cause of action for
loss of earning capacity after reaching the age of majority. Emanuel v.
Clewis, 158 S.E.2d 587, 590 (N.C. 1968). Therefore, it is not
appropriate for a jury to consider evidence of loss of earning capacity
during minority. Id. The minors cause of action is separate from the
parents cause of action for loss of services and earnings of the child
during minority. Under North Carolina law, a minor plaintiff can
support a lost earning capacity claim by presenting evidence of prior
good health, gender and age. Fox-Kirk v. Hannon, 542 S.E.2d 346, 351
(N.C. App. 2001) (finding that the testimony of experts who testified
as to minor plaintiffs ability to attend college and her future
employment opportunities was competent evidence; the experts
testified based on their own personal evaluations of [minor], a review
of her additional medical records, and their expertise and training).
II.
Noneconomic Damages
1. Pain and Suffering. Negligent injury of a minor child can gives rise
to a cause of action in the child for pain and suffering. Emanuel v.
244
Clewis, 158 S.E.2d 587, 590 (N.C. 1968). See also West Through
Farris v. Tilley, 461 S.E.2d 1, 4 (N.C. Ct. App. 1995).
2. Permanent Injury. Minor child can recover damages for permanent
injury. Kleibor v. Rogers, 144 S.E.2d 27, 29 (N.C. 1965). Damages
for scars or disfigurement and partial loss (or use of) body part are also
recoverable.
3. Punitive Damages. Recovery of punitive damages is governed by
Chapter 1D of the North Carolina General Statutes. See N.C. Gen.
Stat. 1D-10 (2011) (This Chapter applies to every claim for punitive
damages, regardless of whether the claim for relief is based on a
statutory or a common-law right of action or based in equity.). The
amount of punitive damages is limited to three times compensatory
damages or two hundred fifty thousand dollars ($250,000), whichever
is greater. N.C. Gen. Stat. 1D-25 (2011).
Punitive damages are awarded to punish the outrageous nature of the
wrongdoers conduct. Howard v. Parker, 382 S.E.2d 808, 810 (N.C.
Ct. App. 1989). Punitive damages are not awarded where the
defendants wrong amounted to no more than ordinary negligence;
they can only be awarded where there is a higher level of misconduct,
such as wilfulness, wantonness or recklessness that indicates at least
an indifference to or a disregard for the rights and safety of others. Id.
(internal citations omitted). To recover punitive damages, a plaintiff
must prove the existence of an aggravating factor by clear and
convincing evidence. N.C. Gen. Stat. 1D-15 (2011).
III.

a. Personal Injury Damages Issues and Burden of Proof. N.C.P.I. Civil 810.00.
The (state number) issue reads:
What amount is the plaintiff entitled to recover for personal injury?
If you have answered the (state number) issue Yes (and the (state
number) issue No) in favor of the plaintiff, the plaintiff is entitled to
recover nominal damages even without proof of actual damages. Nominal
damages consist of some trivial amount such as one dollar in recognition
of a technical injury to the plaintiff.
The plaintiff may also be entitled to recover actual damages. On this issue
the burden of proof is on the plaintiff. This means that the plaintiff must
prove, by the greater weight of the evidence, the amount of actual
damages [proximately caused by the negligence] [caused by the wrongful
conduct] of the defendant.
245
b. Personal Injury Damages In General. N.C.P.I. - Civil 810.02.

Actual damages are the fair compensation to be awarded to a person for
any [past] [present] [future] injury [proximately caused by the negligence]
[caused by the wrongful conduct] of another.
In determining the amount, if any, you award the plaintiff, you will
consider the evidence you have heard as to (each of the following types of
damages):
[medical expenses]
[loss of earnings]
[pain and suffering]
[scars or disfigurement]
[(partial) loss (of use) of part of the body]
[permanent injury]
[state any other type of damage supported by the evidence].
The total of all damages are to be awarded in one lump sum. I will now
explain the law of damages as it relates to each of these.
When an unemancipated minor is injured by the negligence of another, the
minors parents have a cause of action for medical expenses that were incurred
before the child reached age of majority. The parents cause of action is based
upon their duty to care for and maintain their child. Moquin v. Hedrick, 593
S.E.2d 435, 438 (N.C. Ct. App. 2004). However, a parent may waive this right to
collect such medical expenses. By this waiver, the parent treats the minor as
emancipated for the purpose of recovering the medical expenses, and the minor
may recover such expenses arising from her or her injury. Bolkhir v. N. Carolina
State Univ., 365 S.E.2d 898, 902 (N.C. 1988) (internal citations omitted).
However, a minor plaintiff cannot use the parents waiver to effectively
extend the statute of limitations period. Vaughan v. Moore, 366 S.E.2d 518, 520
(N.C. Ct. App. 1988) (holding that plaintiff could not recover medical expenses
incurred during minority because plaintiff obtained waiver from her mother more
than four years after cause of action arose, which would have extended mothers
claim beyond its three-year statute of limitations).
If the evidence shows that the minor was personally liable for medical
expenses incurred as a result of the injury, the minor may recover them. Hawkins
246
v. Mauney, 190 S.E. 715, 716 (N.C. 1937) (allowing minor plaintiff to recover
medical expenses because plaintiff, a married woman, assumed personal
responsibility for her medical care).
I.
1. Expenses for care, treatment and hospitalization incident to the
injury resulting in death. See N.C. Gen. Stat. 28A-18-2(b)(1)
(2011). There is no limit on the amount of recovery allowed for
medical and hospitalization expenses. Bowen v. Constructors Equip.
Rental Co., 196 S.E.2d 789, 805 (N.C. 1973). Amounts recovered in
excess of $4500 are not subject to the debts of the decedent.
2. Pain and suffering. See N.C. Gen. Stat. 28A-18-2(b)(2) (2011).
However, if the beneficiary of an estate is culpably responsible for the
decedent minors death, that beneficiary cannot share in the
administrators recovery for wrongful death. Carver v. Carver, 314
S.E.2d 739, 744 (N.C. 1984) (holding that, since wrongful death of
child was caused by sole negligence of the mother, the pain and
suffering awarded to the childs estate should be reduced by half,
representing the mothers pro-rata share).
If injury and death occur simultaneously, there can be no recovery for
pain and suffering. Brown v. Moore, 213 S.E.2d 342, 348 (N.C. 1975).
3. Reasonable funeral expenses. See N.C. Gen. Stat. 28A-18-2(b)(2)
(2011).
4. Present monetary loss. Damages for the present monetary value of
the decedent are recoverable by the persons entitled to receive the
damages for wrongful death. This recovery is for the loss of their
reasonably expected (i) net income of the decedent, (ii) services,
protection, care and assistance of the decedent, and (iii) society,
companionship, comfort, guidance, kindly offices and advice of the
decedent. Bowen v. Constructors Equip. Rental Co., 196 S.E.2d 789,
805 (N.C. 1973); N.C. Gen. Stat. 28A-18-2(b) (2011).
The
evidentiary issues to consider while awarding these damages include
the age of the deceased and the age of the person entitled to receive the
damages recovered and their relationship with the deceased. Id. Note
that the damages for loss of income, etc. are losses sustained by the
intestate heirs.
North Carolina courts have stated that lost income damages are not
recoverable in the wrongful death of an infant because such damages
would be too speculative. DiDonato v. Wortman, 358 S.E.2d 489
247
(N.C. 1987). In the case of an older child, such damages are

recoverable even though it would be difficult, if not impossible, to
formulate a rule of general application for the measurement of such
damages and that some speculation must always be necessary. Bahl v.
Talford, 530 S.E.2d 347, 351 (N.C. App. 2000) (internal citations
omitted).
To make a showing for such damages, a plaintiff must show concrete
manifestations of the childs intent to provide support to the parents
and that the parents had reasonable expectations to the childs
income. A plaintiff must show these manifestations by direct
evidence, for example using witness testimony, during trial. Id.
(refusing to allow income as an element of the damages because
plaintiffs did not show that the deceased children had ever expressed
an intent to provide any of their income to their parents).
5. Punitive damages. Punitive damages may be awarded for wrongful
death of the deceased through the malice or willful or wanton conduct
of the defendant as defined at N.C. Gen. Stat. 10-5. N.C. Gen. Stat.
28A-18-2(b)(5) (2011). Punitive damages issues should be submitted
separately to the jury. See Jones v. McCaskill, 394 S.E.2d 254 (N.C.
Ct. App. 1990).
III.
Model Jury Instruction

a. Wrongful Death Damages Issue and Burden of Proof. N.C.P.I. Civil 810.40.
The (state number) issue reads:
What amount is the estate of (name deceased) entitled to recover for
wrongful death?
If you have answered the (state number) issue Yes (and the (state
number) issue No) in favor of the estate, the estate is entitled to recover
nominal damages even without proof of actual damages. Nominal
damages consist of some trivial amount such as one dollar in recognition
of the technical damages incurred by the estate.
The estate may also be entitled to recover actual damages. See N.C. Gen.
Stat. 28A-18-2(b). On this issue, the burden of proof is on the estate.
This means the estate must prove, by the greater weight of the evidence,
the amount of actual damages [proximately caused by the negligence]
[caused by the wrongful conduct] of the defendant.
248
b. Wrongful Death Damages In General. N.C.P.I. - Civil 810.42

Actual damages are the fair compensation to be awarded to the estate for
the death of (name deceased) [proximately caused by the negligence]
[caused by the wrongful conduct] of the defendant. Such damages may
include:
[expenses for care, treatment and hospitalization incident to the injury
resulting in death]
[pain and suffering]
[reasonable funeral expenses]
[the present monetary value of (name deceased) to his next-of-kin].
The total of all damages are to be awarded in one lump sum. I will now
explain the law of damages as it relates to (each of) these.
c. Wrongful Death Damages - Medical Expenses. N.C.P.I.--Civil
810.44
Expenses for care, treatment and hospitalization include all [hospital]
[doctor] [drug] [state other] expenses reasonably paid or incurred by
(name deceased) as a [proximate result of the negligence] [result of the
wrongful conduct] of the defendant.
(The parties have agreed and stipulated that (name deceaseds) reasonable
medical expenses were (state amount).)
d. Wrongful Death Damages - Pain and Suffering. N.C.P.I. - Civil
810.46.
Damages for (name deceaseds) death also include fair compensation for
the actual physical pain and mental suffering experienced by (name
deceased) between the time of his injury and the time of his death. You
may consider:
[the nature, extent and degree of the injury(ies) sustained by (name
deceased)]
[the length of time (name deceased) lived and was conscious of his pain
and suffering]
[state any other factor supported by the evidence].
There is no fixed formula for valuing physical pain and mental suffering.
You will determine what is fair compensation by applying logic and
common sense to the evidence.
249
e. Wrongful Death Damages - Funeral Expenses. N.C.P.I. - Civil

810.48.
Damages for (name deceaseds) death also include all funeral (and burial)
expenses reasonably paid or incurred by the estate.
(The parties have agreed and stipulated that the estate's reasonable funeral
(and burial) expenses were (state amount).)
250
NORTH DAKOTA
J. Crisman Palmer
Rebecca L. Mann
(605) 342-1078
I.
A parent may recover compensation for economic and noneconomic

damages in an action for personal injury of his minor child. N.D.C.C. 32-03.204
In any civil action for damages for wrongful death or injury to a
person and whether arising out of breach of contract or tort,
damages may be awarded by the trier of fact as follows:
1. Compensation for economic damages, which are damages
arising from medical expenses and medical care, rehabilitation
services, custodial care, loss of earnings and earning capacity, loss
of income or support, burial costs, cost of substitute domestic
services, loss of employment or business or employment
opportunities and other monetary losses.
2. Compensation for noneconomic damages, which are damages
arising from pain, suffering, inconvenience, physical impairment,
disfigurement, mental anguish, emotional distress, fear of injury,
loss or illness, loss of society and companionship, loss of
consortium, injury to reputation, humiliation, and other
nonpecuniary damage.
N.D.C.C. 32-03.2-04.
II.
Jury Instructions
Damages. Elements of Damages (Personal Injury, NDCC 32-03.2-04)
2000. C - 70.35.
In arriving at the amount of your verdict for damages arising from
personal injury, you may consider and award compensation for economic
damages and compensation for non-economic damages, proximately
resulting from the injury.
251
Economic Damages
The term economic damages includes damages arising from medical
expenses and medical care, rehabilitation services, custodial care, loss of
earnings, loss of earning capacity, loss of income, loss of support, cost of
substitute domestic services, loss of employment, loss of business, and
loss of employment opportunities.
Compensation for economic damages such as medical expenses and
medical care, custodial care, substitute domestic services, and
rehabilitation services is measured by the reasonable value, not exceeding
the actual cost of the goods or services reasonably required and actually
furnished to the injured party or that are reasonably certain to be required
in the future.
Compensation for economic damages such as loss of earnings, loss of
earning capacity, loss of income, loss of support, loss of employment, loss
of business, and loss of business opportunities is measured by the
reasonable value of those losses the injured party has sustained and the
reasonable value of those losses the injured party is reasonably certain to
sustain in the future.
Non-economic Damages
The term non-economic damages includes damages arising from pain,
suffering, inconvenience, physical impairment, disfigurement, mental
anguish, emotional distress, fear of injury, fear of loss, fear of illness, loss
of society and companionship, loss of consortium, injury to reputation,
and humiliation.
Compensation for non-economic damages such as pain, suffering, physical
impairment, disfigurement, mental anguish, emotional distress, fear of
injury, fear of loss, fear of illness, injury to reputation, humiliation, and
inconvenience is measured by the reasonableness of the award in the light
of all the circumstances of the case. In considering the reasonableness of
an award, you may consider whether the element of damage is temporary
or permanent and whether in the future it can or will be averted or
relieved.
Who owns the right to sue for medical expenses? Parent or Child? If
North Dakota has no authority on this issue.
252

I.
Damages Recoverable
The same economic and noneconomic damages recoverable for personal

injury to a minor child are recoverable for the wrongful death of a minor child.
N.D.C.C. 32-03.2-04
The wrongful death statute is not a survival statute intended to increase
the estate of the deceased, but its purpose is to give a measure of protection to
those persons within a fixed degree of relationship to and dependency on the
deceased because of actual injury sustained by them by reason of the wrongful
killing of the deceased. Sheets v. Graco, Inc., 292 N.W.2d 63, 65 (N.D. 1980).
Damages under the wrongful death statute are based on the loss suffered by the
beneficiaries, and not on the loss sustained by the decedents estate. Schneider v.
Baisch, 256 N.W.2d 370, 37172 (N.D. 1977) (limiting recovery to the
beneficiarys actual period of survival.) A jury determines the quantity of
damages and shall give such damages as it finds proportionate to the injury
resulting from the death to the persons entitled to the recovery. N.D.C.C. 32
2102.
Punitive damages are recoverable in a wrongful death action. Puppe by
Puppe v. A.C. and S., Inc., 733 F.Supp. 1355 (D.N.D. 1990) (applying North
Dakota law).
II.
Jury Instructions
a. Damages. Elements of Damages (Wrongful Death)
1995. C 70.38.
In deciding the amount of past and future damages for wrongful death,
you may consider each of the following items of damage:
1) Compensation for economic damages which are damages
arising from [medical expenses and medical care,] [rehabilitative
services,] [custodial care,] [loss of earnings and earning capacity,]
[loss of income or support,] [burial costs,] [costs of substitute
domestic services,] [loss of employment or business or
employment opportunities,] and other monetary losses; and
2) Compensation for non-economic damages which are damages
arising from [pain,] [suffering,] [inconvenience,] [physical
impairment,] [disfigurement,] [mental anguish,] [emotional
distress,] [fear of injury, loss, or illness,] [loss of society and
253
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 [husbands] [wifes]
[parents] claim for damages may include:
1) the loss of the [wifes] [husbands] [childs] services and
companionship [he] [she] [the parents] would have received in the
course of [married life] [childhood] up to the date of trial.
2) the value of [wifes] [husbands] [childs] services and
companionship [he] [she] [the parents] [is] [are] reasonably certain
to lose in the future [during childhood].
254
OHIO
Beth Schneider Naylor
Douglas R. Dennis
FROST BROWN TODD LLC
Cincinnati, Ohio
513.651.6800
I.
Economic Damages:
1. Medical Expenses. Parents may recover all expenditures for medical
care or treatment, rehabilitation services, or other care, treatment,
services, products, or accommodations incurred as a result of the
injury. E.g., Blakeman v. Condoris, 75 Ohio App.3d 393, 397, 599
N.E.2d 776 (Ct. App. 1991), (citing Whitehead v. General Telephone
Co., 20 Ohio St.2d 108 (1969).
If the minors cause of action accrues while the victim is still a minor,
the statute of limitations will toll for the minors negligence claim until
the age of majority is reached. See OHIO REV. CODE 2305.16.
Although the parents action for medical expenses and loss of
consortium belongs to the parent during the childs minority, OHIO
REV. CODE 2305.16 states that the tolling for the minors personal
injury claims will also inure to the benefit of the parents claims.
2. Future Medical Expenses.
3. Future Lost Wages. If emancipated, minors may recover all wages,
salaries or other compensation lost as a result of the injury. At least
one case has held that if not emancipated, minors may only recover
future earnings anticipated after he or she reaches the age of 18.
Bluebird Baking Co. v. McCarthy, 36 N.E.2d 801, 3 O.O. 490 (Ct.
App. 1935).
4. Property Damages. Minors may recover all expenditures incurred to
repair or replace property that was damaged or destroyed. OHIO REV.
CODE 2315.18(A)(2).3
5. Other Expenditures. Minors may recover any other expenditure

incurred as a result of the injury but may not recover attorneys fees
incurred under economic damages. OHIO REV. CODE 2315.18(A)(2).
3
All references to the Ohio Revised Code are dated 2012. All references to the Ohio Jury
Instructions are dated Dec 11, 2010 (adopted at the Ohio Judicial Conference).
255
Evidence of collateral benefits is admissible under OHIO REV. CODE

2315.20(A) unless the source of the benefits has a mandatory federal
right of subrogation, a statutory right of subrogation or a contractual
right of subrogation.
II.
1. Physical Pain and Suffering.
Minors may recover damages
including, but not limited to, pain and suffering; loss of society,
consortium, companionship, care, assistance, attention, protection,
advice, guidance, counsel, instruction, training or education;
disfigurement; mental anguish; and any other intangible loss. OHIO
REV. CODE 2315.18(A)(4). While a cause of action belongs to the
minor, it must be brought by a legal guardian on the minors behalf.
E.g., Slusher v. Ohio Valley Propane Servs., 177 Ohio App. 3d 852,
896 N.E.2d 715 (Ct. App. 2008); West v. Miami Valley Hosp., 99 Ohio
Misc.2d 1, 7 (C.P. 1993). See also Grindell v. Huber, 28 Ohio St.2d
71, 75, 275 N.E.2d 614 (1971). Parents, however, may recover for
loss of consortium. Gallimore v. Childrens Hosp. Med. Ctr., 67 Ohio
St.3d 244, 617 N.E.2d 1052 (1993).
2. Future Damages. Minors may recover for the effects of permanency,
deformity, loss of limb, loss of organ or inability to care for
himself/herself independently. OHIO REV. CODE 2315.18(B)(4).
3. Punitive Damages. Minors may recover punitive damages and those
may also include attorneys fees. Under OHIO REV. CODE
2315.21(B), upon motion of either party, the court shall bifurcate the
trial into two stagescompensatory damages and punitive damages.
Only if the jury finds for plaintiff on compensatory damages will the
trial enter the punitive damages phase. Punitive damages are limited
by OHIO REV. CODE 2315.21(D) and under OHIO REV. CODE
2315.21(F), the court, counsel and witnesses are prohibited from
disclosing the statutory limitations to the jury.
4. Emotional Distress. A cause of action may be stated for the negligent
infliction of emotional distress. Schultz v. Barberton Glass Co., 4 Ohio
St.3d 131, 447 N.E.2d 109 (1983).
III.

1 OJI-CV 207.21 Personal (injury) (damage): sample instruction [Rev.
12-11-10] (Lexis 2011).
1. General. You will decide by the greater weight of the evidence an
amount of money that will reasonably compensate the plaintiff for the
actual (injury) (damage) (proximately) (directly) caused by the
(incident).
256
2. Consideration. In deciding this amount, you will consider the nature

and extent of the (injury) (damage); the effect upon physical health;
the pain and suffering experienced; the ability or inability to perform
usual activities; and the reasonable cost of necessary medical and
hospital expenses incurred. From these you will determine what sum
will compensate the plaintiff for the (injury) (damage) to date.
3. Permanent Injury and Expense. You will note that the plaintiff also
claims that the injury is permanent and that he/she will experience pain
and disability in the future. As to such claim(s), you may find no
damage except that damage that will probably exist as a (proximate)
(direct) result of the (incident).
4. Loss of Ability to Perform Usual Functions Permanent Disability. If
you find from the greater weight of the evidence that, as a proximate
cause of the injuries sustained, the plaintiff has suffered a permanent
disability that is evidenced by way of the inability to perform the usual
activities of life such as the basic mechanical body movements of
walking, climbing stairs, feeding oneself, driving a car, [and so forth],
or by way of the inability to perform the plaintiffs usual specific
activities that had given pleasure to this particular plaintiff, you may
consider, and make a separate award for, such damages.
Any amounts that you have determined will be awarded to the plaintiff
for any element of damages shall not be considered again or added to
any other element of damages. You shall be cautious in your
consideration of the damages not to overlap or duplicate the amounts
of your award that would result in double damages. For example, any
amount of damages awarded to the plaintiff for pain and suffering
must not be awarded again as an element of damages for the plaintiffs
inability to perform usual activities. In like manner, any amount of
damages awarded to the plaintiff for the inability to perform usual
activities must not be considered again as an element of damages
awarded for the plaintiffs pain and suffering, or any other element of
damages.
5. Speculation. You are not to speculate regarding (permanent) (future)
damages. The law deals in probabilities and not mere possibilities. In
deciding (permanent) (future) damages, you may consider only those
things that you find from the evidence are reasonably certain to
continue.
6. Reasonably Certain. Reasonably certain means probable, that is,
more likely to occur than not.
257
See also 1 OJI-CV 315.01 Personal injury: tort actions (claims arising on and
after 4/7/05) [Rev. 8-11-10] (Lexis 2011); 1 OJI-CV 407.23 Children: Damages,
injury [Rev. 12-11-10] (Lexis 2011); 1 OJI-CV 315.03 Consortium [Rev. 12-1110] (Lexis 2011); 1 OJI-CV 315.37 Punitive Damages [Rev. 12-11-10] (Lexis
2011) for more tailored or specific requirements.
Parents may recover all expenditures for medical care or treatment,
rehabilitation services, or other care, treatment, services, products, or
accommodations incurred as a result of the injury. E.g., Blakeman v. Condoris, 75
Ohio App.3d 393, 397, 599 N.E.2d 776 (Ct. App. 1991). However, the parents
claim for medical expenses terminates upon emancipation of the minor, at which
time, the claim for medical expenses belong to the injured party. Bagyi v. Miller,
3 Ohio App.2d 371, 210 N.E.2d 887 (Ohio App. 1965).
I.
Wrongful Death of a Minor (who may bring suit):
Section 2125.01 et seq. of the Ohio Revised Code creates a wrongful death
claim in Ohio. Suit must be brought in the name of the decedents personal
representative, and is for the exclusive benefit of the surviving parent(s). OHIO
REV. 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 parents
when the decedent is a minor child instead of an adult child. E.g., Reeder v.
Suggs, No. 1-81-46, 1982 WL 6822, at *7 (Ohio Ct. App. Jun. 29, 1982). This is
because parents are legally entitled to the services of a minor child. Id.
A parent who abandoned the decedent minor cannot recover for wrongful
death. OHIO REV. CODE 2125.02(E)(1). A parent abandons a minor if that
parent, without justifiable cause, fails to communicate, care for, or provide
financial assistance for the minor for a period of one year prior to the minors
death. See Keybank Natl Assoc. v. Hanns, No. 22692, 2009-Ohio-1935, 21 (Ct.
App. Apr. 24, 2009).
Stepparents and other individuals acting in loco parentis to the minor can
only recover damages under specific circumstances. If clear-and-convincing
evidence: (1) the natural parents have disclaimed their parental rights in the
minor; (2) the one claiming parenthood has performed the obligations of
parenthood for a substantial period of time; (3) the individual claiming to be a
parent has held him or herself out as being the minors parent for a substantial
period of time; and (4) the relationship between the minor and the one claiming
parenthood has been publicly recognized. E.g., Miller v. Boden, 103 Ohio App.3d
73, 7576, 658 N.E.2d 809 (Ct. App. 1995), citing Lawson v. Atwood, 42 Ohio
St.3d 69, 536 N.E.2d 1167 (1989).
258
II.
Wrongful Death Damages:

1. Burial and Funeral Expenses. The jury may award the decedents
reasonable burial and funeral expenses, but this award must be set
forth separately from the rest of the verdict. OHIO REV. CODE
2125.03(B); 1 OJI-CV 315.37.
2. Property Damages. Minors may recover all expenditures incurred to
repair or replace property that was damaged or destroyed. OHIO REV.
CODE 2315.18(A)(2).
3. Life Expectancy. The jury may award damages related to the
decedent minors earnings potential. See Howard v. Seidler, 116 Ohio
App.3d 800, 812, 689 N.E.2d 572 (Ct. App. 1996). This includes
whether the minor would have provided support to parents, as well as
age, sex, physical and mental condition, and potential for educational
advancement and earnings capacity. Id.
4. Loss of Services. Parents can recover for loss of services, society,
companionship, consortium, care, assistance, attention, protection,
advice, guidance, counsel, instruction, training or education suffered.
OHIO REV. CODE 2125.02(B)(2) and (B)(3).
5. Mental Anguish. Parents can recover based on mental anguish. OHIO
REV. CODE 2125.02(B)(5).
6. Punitive Damages. Minors may recover punitive damages and those
may also include attorneys fees. Under OHIO REV. CODE
2315.21(B), upon motion of either party, the court shall bifurcate the
trial into two stagescompensatory damages and punitive damages.
Only if the jury finds for plaintiff on compensatory damages will the
trial enter the punitive damages phase. Punitive damages are limited
by OHIO REV. CODE 2315.21(D) and under OHIO REV. CODE
2315.21(F), the court, counsel and witnesses are prohibited from
disclosing the statutory limitations to the jury.
III.
Jury Instruction
1 OJI-CV 315.47 Death, pecuniary injury [Rev. 12-11-10] (Lexis 2011);
1 OJI-CV 315.49 Death, compensatory damages [Rev. 12-11-10] (Lexis
2011).
1. If you find for the plaintiff, you will determine what sum of money
will compensate the beneficiaries for their pecuniary loss. Pecuniary
loss means such loss as is suffered by the beneficiaries that can be
measured by a monetary value. This includes the financial support and
assistance the beneficiaries might reasonably have received from the
decedent from his earnings during his life, an amount the decedent
259
might reasonably have left to his beneficiaries if he predeceased them,

and the value of (services) (care, advice, and training) which the
beneficiaries might reasonably have received from the decedent during
his lifetime..
2. In addition to an award of damages for pecuniary loss, you may make
an award for reasonable funeral expenses if these expenses are
established by the evidence.
3. The term pecuniary loss does not include such elements as
bereavement, mental pain and suffering of the beneficiaries or the loss
of the society, comfort or companionship of the deceased.
260
OKLAHOMA
Darren VanPuymbrouck
Deborah Bone
Schiff Hardin, LLP
Chicago, Illinois
(312) 258-5500
I.
Economic Damages:
Oklahoma statute provides that the amount of compensation for economic

losses shall not be subject to any limitation. OKLA. STAT. 23 61.2 (A).
Available economic damages include compensation for:
1. Loss of Earning Capacity. Minors impairment of earning capacity
after reaching eighteen years of age is a recoverable expense. See
Atchison, T. & S.F.R.R. v. Coulson, 371 P.2d. 914, 919 (Okla. 1962).
In order to recover, the minor must show some evidence that the injury
is likely to impair future earning capacity, but need not rely on the
minors prior work history or education. Hembree v. Southard, 339
P.2d 771, 777-78 (Okla. 1959). Any loss of earnings which it is
reasonably probable the minor would have received but for the injuries
is recoverable. City of Miami v. Finley, 240 P. 317, 319 (Okla. 1925).
b. Medical Expenses. Reasonable expenses of necessary medical
care, treatment, and services required after reaching eighteen years of
age. See Bready v. Tipton, 407 P.2d 194, 205 (Okla. 1965).
2. Economic loss of Parent.
Medical Expenses. Parents of an injured minor can bring suit to
recover reasonable expenses of the necessary medical care, treatment,
and services the parent has incurred on behalf of the minor or will
incur in the future from now until the minor reaches the age of
eighteen years of age. Stinchcomb v. Holder, 116 P.2d 891, 891 (Okla.
1941).
Loss of Wages and Services. Parent may recover any loss of past
earnings of the minor, loss of future earnings until the minor reaches
the age of eighteen, loss of household services of the minor, and loss
of household services which the minor would have provided between
now and the age of eighteen. See Indep. Sch. Dist. I-29 v. Crawford,
688 P.2d 1291, 1294 (Okla. 1984).
3. Punitive Damages. Generally, punitive damages may not exceed the
greater of $100,000 or compensatory damages. If the jury finds that
261
the defendant acted with malice or an insurer intentionally acted in bad

faith, however, punitive damages may not exceed the greater of
$500,000 or two times compensatory damages or the amount of the
increased financial gain to the defendant. OKLA. 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.
Oklahoma statute provides that compensation for noneconomic losses

shall not exceed $400,000 regardless of the number of parties against whom the
action is brought or the number of actions brought. OKLA. STAT. 23 61.2 (B)
(2010). This limitation does not apply in instances where the trier of fact finds
that the minor has suffered: (1) permanent and substantial physical abnormality or
disfigurement; (2) permanent physical functional injury which prevents them
from being able to independently care for themselves and perform life sustaining
activities; or (3) the defendants acts were in reckless disregard, grossly negligent,
fraudulent, or intentional. Id. (C)(D). Available noneconomic damages include
compensation for:
1. Pain and Suffering. Past and future physical and mental pain and
suffering is a recoverable loss. See Shebester, Inc. v. Ford, 361 P.2d
200, 202-03 (Okla. 1961).
2. Physical Injury or Disfigurement. Minors physical impairment,
injury, or disfigurement is a recoverable loss. See Rolater v. Strain,
137 P. 96, 99 (Okla. 1913).
III.
Jury Instructions
a. Personal Injuries Minor Child. Vernon's Okla. Forms 2d, OUJICIV 4.2 (2011 ed.).
If you decide for [Plaintiff], you must then fix the amount of [his/her]
damages. This is the amount of money that will reasonably and fairly
compensate [him/her] for the injury sustained as a result of the
[negligence/(wrongful conduct)] of [Defendant].
In fixing the amount you will award [him/her] you may consider the
following elements:
A. [His/Her] physical pain and suffering, past and future;
B. [His/Her] mental pain and suffering, past and future;
C. [His/Her] age;
262
D. [His/Her] physical condition immediately before and after the accident.

E. The nature and extent of [his/her] injuries;
F. Whether the injuries are permanent;
G. The physical impairment;
H. The disfigurement;
I. The impairment of earning capacity after reaching the age of eighteen
years;
J. The reasonable expenses of necessary medical care, treatment and
services required after reaching the age of eighteen years
b. Personal Injuries Minor Child Measure of Parents or
Guardians Damages. Vernon's Okla. Forms 2d, OUJI-CIV 4.3 (2011
ed.).
If you decide for [name of plaintiff's parent or guardian], you must then
fix the amount of [his/her] damages. This is the amount of money, that
will reasonably and fairly compensate [him/her] for the loss sustained as a
result of the [negligence/(wrongful conduct)] of [Defendant].
In fixing the amount you will award [name of plaintiff's parent or
guardian], you may consider the following elements:
A. The reasonable expenses of the necessary medical care, treatment and
services [he/she] has incurred in behalf of [name of minor child] or will
incur in the future from now until [name of minor child] reaches the age of
eighteen years;
B. Any loss of past earnings of [name of minor child];
C. Any future loss of earnings or impairment of earning capacity of [name
of minor child] from now until [he/she] reaches the age of eighteen years;
D. Any loss of past household and similar services which [name of minor
child] would have given [name of plaintiff's parent or guardian];
E. Any loss of household and similar services which [name of minor
child] would have given [name of plaintiff's parent or guardian] between
now and the time [he/she] reaches the age of eighteen years.
c. Personal Injuries Minor Child Loss of Earnings. Vernon's Okla.
Forms 2d, OUJI-CIV 4.4 (2011 ed.).
263
The services and earnings of the minor child, [name of minor child],
before [marriage/(reaching the age of eighteen years)] belong to [name of
parent or guardian, etc.]. Earnings of the minor child] after
[marriage/(reaching the age of eighteen years)] belong to the child.
d. Exemplary or Punitive Damages First Stage. Vernon's Okla.
If you find in favor of [Plaintiff], and grant [him/her] actual damages,
then you must also find by a separate verdict, whether [Defendant] (acted
in reckless disregard of the rights of others) (and/or) (acted intentionally
and with malice towards others).
[Plaintiff] has the burden of proving this by clear and convincing
evidence. By that I mean that you must be persuaded, considering all the
evidence in the case, that the proposition on which the party has this
burden of proof is highly probable and free from serious doubt.
[The conduct of [Defendant] was in reckless disregard of another's rights
if [Defendant] was either aware, or did not care, that there was a
substantial and unnecessary risk that [his/her/its] conduct would cause
serious injury to others. In order for the conduct to be in reckless disregard
of another's rights, it must have been unreasonable under the
circumstances, and also there must have been a high probability that the
conduct would cause serious harm to another person.]
[Malice involves either hatred, spite, or ill-will, or else the doing of a
wrongful act intentionally without just cause or excuse.]
If you find that [Defendant] acted (in reckless disregard of the rights of
others) or (intentionally and with malice towards others), you may award
punitive damages against [Defendant] in a later part of this trial. If you
find that [Defendant] did not act (in reckless disregard of the rights of
others) or (intentionally and with malice towards others), you may not
award punitive damages against [Defendant].
e. Exemplary or Punitive Damages Second Stage. Vernon's Okla.
Ladies and Gentlemen of the jury, you have found in favor of the plaintiff
and granted him/her actual damages, and you have also found by a
separate verdict that the defendant (acted with reckless disregard of the
rights of others) (and/or) (acted intentionally and with malice towards
others).
264
You may now, in addition to actual damages, grant the plaintiff punitive
damages in such sum as you reasonably believe will punish defendant and
be an example to others.
Punitive damages are not to be considered as compensation to [Plaintiff],
but as punishment to [Defendant], and as an example to others to deter
them from like conduct. The law does not require you to award punitive
damages, and if you do so, you must use sound reason in setting the
amount. You should be aware that the purpose of punitive damages is to
punish and not destroy a defendant.
[You may consider evidence of actual harm to others in determining the
seriousness of the hazard to the public and thus whether the conduct that
harmed the plaintiff was particularly reprehensible or bad. Conduct that
risks harm to many may be more reprehensible than conduct that risks
harm to only a few. However, you may not use punitive damages to
punish [Defendant] directly on account of harms that [Defendant] may
have caused to others.]
In determining the amount of punitive damages, you may consider the
following factors:
1. The seriousness of the hazard to the public arising from
[Defendant]'s misconduct;
2. The profitability of the misconduct to [Defendant];
3. How long the conduct lasted and whether it is likely to continue;
4. Whether there were attempts to conceal the misconduct;
5. How aware [Defendant] was of the conduct and its
consequences and how aware [Defendant] was of the hazard and
of its excessiveness;
6. The attitude and conduct of [Defendant] upon finding out about
the misconduct/hazard;
7. The financial condition of [Defendant];
8. (If the defendant is a corporation or other entity) The number
and level of employees involved in causing or concealing the
misconduct.
In no event should the punitive damages exceed the greater of: (Select
One)
[$100,000.00 or the amount of actual damages you have previously
awarded].
265
OR
[$500,000.00, or twice the amount of actual damages you have previously
awarded, or the increased financial benefit derived by the defendant as a
direct result of the conduct causing the injury to the plaintiff].
Parents have the right to sue for compensation of medical expenses
incurred before the minor reaches the age of eighteen. See Boyett v. Airline
Lumber Co., 277 P.2d 676, 679-80 (Okla. 1954). The right to sue for medical
expenses incurred after the minor reaches the age of eighteen belongs to the
minor. Bready v. Tipton, 407 P.2d 194, 205 (Okla. 1965). Parents can assign
their right to recover to the minor child by bringing suit on behalf of the minor
child instead of bringing an individual claim. OKLA. STAT. 10 17.1.
I.
Economic Damages:
The Oklahoma Constitution forbids statutory limitations on compensation

available in wrongful death suits. OKLA. CONST. Art. 23 7.
1. Medical and Burial Expenses. Oklahoma statute provides for the
compensation 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 the
loss of monies expended by parents or guardian in support,
maintenance and education of minor child. Id.
II.
The Oklahoma Constitution forbids statutory limitations on compensation

available in wrongful death suits. OKLA. 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. STAT. 12 1055.
2. Destruction of the Parent/child Relationship. Oklahoma statute
provides for the compensation of the destruction of the parent child
relationship. Id.
266
3. Punitive damages. The Oklahoma Supreme Court extended the

availability of punitive damages to minor wrongful death suits. Roach
v. Jimmy D. Enterprises, Ltd., 912 P.2d 852, 856 (Okla. 1996); OKLA.
STAT. 12 1053. Generally, punitive damages may not exceed the
greater of $100,000 or compensatory damages. If the jury finds that
the defendant acted with malice or an insurer intentionally acted in bad
faith, however, punitive damages may not exceed the greater of
$500,000 or two times compensatory damages or the amount of the
increased financial gain to the defendant. OKLA. STAT. 23 9.1.
III.
Jury Instructions
a. Damages for Wrongful Death of a Minor Child. Vernon's Okla.
[Plaintiff] in this action sues to recover damages for the death of [name of
decedent], a minor child.
If you decide for the [Plaintiff] on the question of liability, in determining
the amount of damages [he/she] is entitled to recover, you may consider
the following items:
a. The medical and burial expenses;
b. Loss by the parents of anticipated services and support;
c. Loss by the parents of companionship and love of the child;
d. Destruction of the parent-child relationship;
e. Loss of monies expended by the parents [or the guardian, if applicable]
in the support, maintenance and education of [name of decedent];
You must fix the amount of money which will reasonably and fairly
compensate for those above-named elements of damage, which you find
were directly caused by the [negligence/wrongful conduct] of [Defendant].
b. Exemplary or Punitive Damages First Stage. Vernon's Okla.
If you find in favor of [Plaintiff], and grant [him/her] actual damages,
then you must also find by a separate verdict, whether [Defendant] (acted
in reckless disregard of the rights of others) (and/or) (acted intentionally
and with malice towards others).
[Plaintiff] has the burden of proving this by clear and convincing
evidence. By that I mean that you must be persuaded, considering all the
267
evidence in the case, that the proposition on which the party has this
burden of proof is highly probable and free from serious doubt.
[The conduct of [Defendant] was in reckless disregard of another's rights
if [Defendant] was either aware, or did not care, that there was a
substantial and unnecessary risk that [his/her/its] conduct would cause
serious injury to others. In order for the conduct to be in reckless disregard
of another's rights, it must have been unreasonable under the
circumstances, and also there must have been a high probability that the
conduct would cause serious harm to another person.]
[Malice involves either hatred, spite, or ill-will, or else the doing of a
wrongful act intentionally without just cause or excuse.]
If you find that [Defendant] acted (in reckless disregard of the rights of
others) or (intentionally and with malice towards others), you may award
punitive damages against [Defendant] in a later part of this trial. If you
find that [Defendant] did not act (in reckless disregard of the rights of
others) or (intentionally and with malice towards others), you may not
award punitive damages against [Defendant].
c. Exemplary or Punitive Damages Second Stage. Vernon's Okla.
Ladies and Gentlemen of the jury, you have found in favor of the plaintiff
and granted him/her actual damages, and you have also found by a
separate verdict that the defendant (acted with reckless disregard of the
rights of others) (and/or) (acted intentionally and with malice towards
others).
You may now, in addition to actual damages, grant the plaintiff punitive
damages in such sum as you reasonably believe will punish defendant and
be an example to others.
Punitive damages are not to be considered as compensation to [Plaintiff],
but as punishment to [Defendant], and as an example to others to deter
them from like conduct. The law does not require you to award punitive
damages, and if you do so, you must use sound reason in setting the
amount. You should be aware that the purpose of punitive damages is to
punish and not destroy a defendant.
[You may consider evidence of actual harm to others in determining the
seriousness of the hazard to the public and thus whether the conduct that
harmed the plaintiff was particularly reprehensible or bad. Conduct that
risks harm to many may be more reprehensible than conduct that risks
harm to only a few. However, you may not use punitive damages to
268
punish [Defendant] directly on account of harms that [Defendant] may

have caused to others.]
In determining the amount of punitive damages, you may consider the
following factors:
1. The seriousness of the hazard to the public arising from
[Defendant]'s misconduct;
2. The profitability of the misconduct to [Defendant];
3. How long the conduct lasted and whether it is likely to continue;
4. Whether there were attempts to conceal the misconduct;
5. How aware [Defendant] was of the conduct and its
consequences and how aware [Defendant] was of the hazard and
of its excessiveness;
6. The attitude and conduct of [Defendant] upon finding out about
the misconduct/hazard;
7. The financial condition of [Defendant];
8. (If the defendant is a corporation or other entity) The number
and level of employees involved in causing or concealing the
misconduct.
In no event should the punitive damages exceed the greater of: (Select
One)
[$100,000.00 or the amount of actual damages you have previously
awarded].
OR
[$500,000.00, or twice the amount of actual damages you have previously
awarded, or the increased financial benefit derived by the defendant as a
direct result of the conduct causing the injury to the plaintiff].
269
OREGON
Robert F. Friedman
Harman Claytor Corrigan & Wellman, P.C.
Richmond, Virginia
(804) 747-5200
I.
Economic Damages:
1.
Medical Expenses. Medical expenses may be recovered by the
parent of the injured minor. Further, it is possible for medical expenses to
be recovered on behalf of the minor herself. See Palmore v. Kirkland
Laboratories, Inc., 270 Or. 294, 306 527 P.2d 391, 396 (1974).
2. Future Medical Expenses. Under Oregon law, a plaintiff may recover
for future medical expenses. See Zehr v. Haugen, 318 Or. 647, 657,
871 P.2d 1006, 1011 (1994).
3. Future Lost Wages. As a general rule, any evidence which would
indicate fairly the capacity of the plaintiff to earn money in his
vocation, and the probability of his being able to do so in the future
should be admitted; but, where such evidence consists of mere
quesswork and speculation upon which might happen in the future, it
should be excluded. Brown v. O. -W.R. & N. Co., 63 Or. 396, 128 P.
38 (1912). This rule has been held to apply to minors as well. Holder
v. Petty, 267 Or. 94, 101, 514 P.2d 1105, 1108 (1973).
4. Loss of Child Services. A parent may recover for the loss of a childs
services. 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, which
allows a parent to maintain a cause of action for an injured child, a
parent may not recover for loss of the childs society and
companionship. Beerbower v. State ex rel. Oregon Health Sciences
University, 85 Or.App. 330, 334-35, 736 P.2d 596, 59899 (Or.App.,1987).
II.
1. Pain and Suffering. A child may recover for noneconomic damages.
See Clarke v. Oregon Health Sciences University, 343 Or. 581, 175
P.3d 418 (2007). The previous statute capping noneconomic damages
to $500,000 has been recognized as unconstitutional by the Oregon
270
Supreme Court. See Lakin v. Senco Products, Inc., 329 Or. 62, 987
P.2d 463 (1999).
Who owns the right to sue for medical expenses?
Although the parent traditionally owns the right to sue for medical
expenses, a claim may be brought, with the consent of the parents, by the
guardian ad litem on behalf of the child . It is generally held that medical
expenses incurred due to the negligent injury of a minor unemancipated child are
damages suffered by the parent and not the child. This rule is consistent with ORS
109.010 which places responsibility on the parents to maintain their children, and
with ORS 109.020 which limits access to the child's estate for the payment of his
expenses. Palmore v. Kirkland Laboratories, Inc., 270 Or. 294, 305-06, 527 P.2d
391, 396 (1974). Nevertheless, [e]ven though the medical expense damage has
been incurred by the parents, the Oregon Legislature has determined that such
damage may be sought in an action brought by the parent on behalf of the child.
Id. at 306.
O.R.S. 31.700 provides:
(1) When the guardian ad litem of a child maintains a cause of
action for recovery of damages to the child caused by a wrongful
act, the parent, parents, or conservator of the estate of the child
may file a consent accompanying the complaint of the guardian ad
litem to include in the cause of action the damages as, in all the
circumstances of the case, may be just, and will reasonably and
fairly compensate for the doctor, hospital and medical expenses
caused by the injury.
(2) If the consent is filed as provided in subsection (1) of this
section and the court allows the filing, no court shall entertain a
cause of action by the parent, parents or conservator for doctor,
hospital or medical expenses caused by the injury.
A parent has no independent right to recover for the wrongful death of a
child; instead, the action must be brought by the representative of the decedent
minors estate. Dasteur v. American Economy Ins. Co., 127 Or.App. 686,689-90
874 P.2d 85, 87 (1994) The personal representative may bring suit on behalf of
the deceased minor child provided that, under the law of intestate succession of
the state of the minor's domicile,the parent would be entitled to inherit the
personal property of the minor. See O.R.S. 30.020 (2011).
271
I.

O.R.S. 30.020 provides:
(1) When the death of a person is caused by the wrongful act or
omission of another, the personal representative of the decedent,
for the benefit of the decedent's surviving spouse, surviving
children, surviving parents and other individuals, if any, who under
the law of intestate succession of the state of the decedent's
domicile would be entitled to inherit the personal property of the
decedent, and for the benefit of any stepchild or stepparent whether
that stepchild or stepparent would be entitled to inherit the personal
property of the decedent or not, may maintain an action against the
wrongdoer, if the decedent might have maintained an action, had
the decedent lived, against the wrongdoer for an injury done by the
same act or omission.
II.
In a wrongful death action, damages for the parents of the deceased

minor are not limited to the loss of services and support. Miller v. Tri-County
Metropolitan District,241 Or.App. 86, 91,250 P.3d 27, 29 (2011).
O.R.S. 30.020 Wrongful death action; commencement; damages provides:
(2) In an action under this section damages may be awarded in an
amount which:
a) Includes reasonable charges necessarily incurred for
doctors' services, hospital services, nursing services, other
medical services, burial services and memorial services
rendered for the decedent;
b) Would justly, fairly and reasonably have compensated the
decedent for disability, pain, suffering and loss of income
during the period between injury to the decedent and the
decedent's death;
c) Justly, fairly and reasonably compensates for pecuniary
loss to the decedent's estate;
d) Justly, fairly and reasonably compensates the decedent's
spouse, children, stepchildren, stepparents and parents for
pecuniary loss and for loss of the society, companionship
and services of the decedent; and
e) Separately stated in finding or verdict, the punitive
damages, if any, which the decedent would have been
entitled to recover from the wrongdoer if the decedent had
lived.
272
PENNSYLVANIA
Katherine J. Sullivan
Deasey, Mahoney, Valentini & North, Ltd.
(215) 587-9400
I.
Economic Damages:
2. Medical and Other Related Expenses. Medical and other related
expenses are recoverable. Under Pennsylvania law, a tortfeasor is
liable for damages that are reasonably foreseeable consequences of his
action. Dougherty v. McLaughlin, 432 Pa. Super. 129, 637 A.2d 1017
(1994)
3. Loss of Wages or Wage-Earning Capacity. Loss of wages and loss
of earning capacity are compensable under Pennsylvania law. Wolf v.
C. Schmidt & Sons Brewing Company, 236 Pa. 240, 84 A. 778 (Pa.
1912). Although expert testimony is not required to show loss of
earning capacity, either party in a negligence action is entitled to
introduce expert or other evidence to establish or refute actual
expected future earning capacity of a particular plaintiff. Fish v.
Gosnell, 316 Pa. Superior Ct. 565, 463 A.2d 1042 (1983).
Pennsylvania considers the impact of inflation and productivity as
integral factors to be included in computing lost future earnings.
Kaczkowski v. Bolubasz, 491 Pa. 561 (Pa. 1980).
II.
1. Hedonic Damages. Loss of lifes pleasures are compensable under
Pennsylvania law. Under Pennsylvania law, loss of lifes pleasures are
interrelated with pain and suffering. Carpinet v. Mitchell, 2004 PA
Super 197; 853 A.2d 366 (Pa. Super. 2004).
2. Punitive Damages. Pennsylvania has adopted Section 908(2) of the
Restatement (Second) of Torts regarding the imposition of punitive
damages. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984);
Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 358 (1963).
Section 908(2) states:
Punitive damages may be awarded for conduct that is
outrageous because of the defendants evil motive or his
273
reckless indifference to the rights of others. In assessing

punitive damages, the trier of fact can properly consider the
character of the defendants act, the nature and extent of the
harm to the plaintiff that defendant caused or intended to
cause and the wealth of the defendant.
Comment b to Section 908 provides further guidance in determining
the character and nature of the conduct for which punitive damages
may be imposed, and that comment provides that:
Since the purpose of punitive damages is not compensation
of the plaintiff, but the punishment of the defendant and
deterrence, these damages can be awarded only for conduct
for which this remedy is appropriate - which is to say,
conduct involving some element of outrage similar to that
usually found in crime. The conduct must be outrageous
either because of the defendants acts were done with an
evil motive or because they were done with reckless
indifference to the rights of others.
Restatement (Second) of Torts, 908 Comment b (emphasis supplied).
3. Emotional Distress. Claims for emotional distress are compensable,
however, Pennsylvania generally denies these claims unless they are
accompanied by a physical symptom or injury. Armstrong v. Paoli
Hospital, 633 A.2d 605 (Pa. Super. 1993).
III.

7.10 Lump Sum Damages
The damages recoverable by the Plaintiff in this case and the items that go
to make them up, each of which I will discuss separately, are as follows:
1.
2.
3.
Pain and suffering

Past lost wages
Loss of future wage
Total:
________
________
________
$________
274
Under Pennsylvania law, personal injury to a minor gives rise to two

separate and distinct causes of action, one the parents claim for medical expenses
and loss of the minor's services during minority, the other the minor's claim for
pain and suffering and for losses after minority. Hathi v. Krewstown Park
Apartments, 385 Pa. Super. 613 (1989).
Under Pennsylvania law, recovery for damages to a minor decedent can be
made by relying on one of two statutes: Pennsylvanias Wrongful Death Act, 42
Pa. C.S. 8301 and Pennsylvanias Survival Act, 42 Pa. C.S. 8302.
I.
Wrongful Death of a Minor
An action for wrongful death may be brought by the personal

representative of the decedent for the benefit of those persons entitled by law to
recover damages for such wrongful death. 42 Pa.C.S. 8301(d); Pa.R.Civ.P.
2202(a). The damages recovered are not part of decedent's estate, but are
compensation to individual members of the family for their loss.
A survival action is not a new cause of action but one which "merely
continues in [the decedent's] personal representatives the right of action which
accrued to the deceased at common law because of the tort." Pezzulli v.
D'Ambrosia, 26 A.2d 659 (Pa. 1942); 42 Pa.C.S. 8302. The damages here are
measured by the pecuniary loss to decedent. Fisher v. Dye, 125 A.2d 472 (Pa.
1956).
Pursuant to Pa.R.Civ.P. 213(e), the two causes of action may be enforced
in one action, and if independent actions are instituted, they must be consolidated
for trial. However even though the two actions have been consolidated, a jury
must bring in a separate verdict for each cause of action. Feldman, Pennsylvania
Trial Guide 33.6. In addition, actions for damages under the two acts are
cumulative, not alternative, and are not to overlap or result in duplication of
damages. Pezulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942). See generally
Schwab v. P.J. Oesterling & Son, Inc., 386 Pa. 388, 126 A.2d 418 (1956).
II.
Economic Damages
2. Funeral, Medical and Other Related Expenses. Funeral, medical
and other related expenses are recoverable under Pennsylvanias
Wrongful Death Act. 42 Pa. C.S. 8301.
275
3. Loss of Wages or Wage-Earning Capacity. Under the Pennsylvania

Survival Act, 42 Pa. C.S. 8302, lost wages and loss of future
earnings are recoverable, less the cost of maintenance, from the time
of decedents death until the end of his lifespan. Kiser v. Schulte, 648
A.2d 1 (Pa.1994).
III.
Noneconomic Damages
1. Loss of Society and Companionship. Pennsylvania allows a parent
to sue for the lost value of an injured child's services, but recognizes
no such cause of action for a parent's loss of a child's
consortium. Cheskiewicz v. Aventis Pasteur, Inc., 843 A.2d 1258 (Pa.
Super. 2004).
2. Pain and Suffering. A claim for pain and suffering may be made
pursuant to the Survival Act for the pain and suffering sustained by the
minor decedent from the time of the occurrence until the minors
death. Pain and suffering may not be recovered under a claim based
solely on Pennsylvanias Wrongful Death Act.
3. Punitive Damages. Under Pennsylvania law, punitive damages are
not permitted in a wrongful death action. MacLeod v. Russo, 2010
Pa. Dist. & Cnty. Dec. LEXIS 219 (Pa. County Ct. 2010) (citing
Harvey v. Hassinger, 461 A.2d 814, 815 (Pa.Super.,1983)). However,
punitive damages are recoverable in a Survival Act claim, and
accordingly, may be pleaded in a Complaint that seeks relief under
both the Wrongful Death Act and the Survival Act.
4. Loss of Enjoyment of Life. In Pennsylvania, loss of lifes pleasures
is not a separate element of damages in survival act claims, but rather a
component of the pain and suffering endured from the time between
the accident until death. MacLeod v. Russo, 2010 Pa. Dist. & Cnty.
Dec. LEXIS 219 (Pa. County Ct. 2010) (citing Willinger v. Mercy
Catholic Medical Center of Southeastern Pennsylvania, Fitzgerald
Mercy Division, 393 A.2d 1188, 1191 (Pa. 1978)).
5. Emotional Distress. Generally, a plaintiff establishes a cause of action
for negligent infliction of emotional distress in Pennsylvania when the
following criteria are met: (1) plaintiff was located near the scene of
the accident as opposed to being a distance away from it; (2) the shock
resulted from the direct emotional impact upon plaintiff of the sensory
and contemporaneous observance of the accident, as contrasted with
learning of it from others afterward; and (3) plaintiff and the victim
were closely related. Neff v. Lasso, 555 A.2d 1304, 1308 (Pa. Super.
1989). Claims for emotional distress are compensable, however,
276
Pennsylvania generally denies these claims unless they are

accompanied by a physical symptom or injury. Armstrong v. Paoli
Hospital, 633 A.2d 605 (Pa. Super. 1993).
IV.
Jury Instructions
Damages in Wrongful Death and Survival Actions. Pennsylvania
Suggested Standard Civil jury Instructions7.220
When a person dies, the damages they would have been entitled to go to
their estate or survivors. The estate and survivors are just as entitled to
these damages as the deceased person would have been had [he] [she]
survived.
The plaintiff, as the [administrator] [administratrix] of the estate of the
decedent, claims damages under the Wrongful Death Act and the Survival
Act. [He] [She] is entitled to make claim under both acts, but the damages
must not overlap or duplicate themselves.
A. Under the Wrongful Death Act, the damages recoverable by the
plaintiff are as follows:
1. The plaintiff is entitled to be awarded an amount that will cover
all hospital, medical, funeral, burial, and estate administration
expenses incurred. [It has been stipulated that these expenses
amount to $ [amount].]
2. The plaintiff is entitled to be awarded an amount that will fairly
and adequately compensate the family of the decedent (wife,
children, parents, etc.) for their loss of any contributions they
would have received between the time of the death of the decedent
and today. This includes all amounts of money that the decedent
would have spent for or given to [his] [her] family for such items
as shelter, food, clothing, medical care, education, entertainment,
gifts, and recreation.
3. The plaintiff is entitled to be awarded the value of all sums that
the decedent would have contributed to the support of [his] [her]
family between today and the end of [his] [her] life expectancy.
4. In addition to the monetary contributions that the decedent
would have contributed to [his] [her] family's support, the plaintiff
is entitled to be awarded a sum that will fairly and adequately
compensate [his] [her] family for the monetary value of the
services, society, and comfort that [he] [she] would have given to
277
[his] [her] family had [he] [she] lived, including such elements as
work around the home, provision of physical comforts and
services, and provision of society and comfort.
5. The plaintiff, on behalf of the surviving children, is entitled to
be awarded an amount that will fairly compensate for the loss of
the services that the decedent as a [father] [mother] would have
contributed to [his] [her] children. It will be your duty to consider
the monetary value of such services as guidance, tutelage, and
moral upbringing that you believe the children would have
received, up to the time you believe such services would have been
provided, had the death not occurred.
B. Under the Survival Act, the damages recoverable by the plaintiff are as
follows:
1. [If a period intervenes between accident and death:]
The plaintiff is entitled to be awarded the total amount the
decedent would have earned between the time of the accident and
[his] [her] death.
2. The plaintiff is entitled to be awarded the total net amount that
the decedent would have earned between the date of [his] [her]
death and today. Net earnings are decided as follows: you must
first calculate the total amount of the decedent's gross earnings,
including the fringe benefits, between the date of death and today;
from this amount, you deduct the amount of monetary
contributions [he] [she] would have made to [his] [her] family
during this period (which you have already awarded to the plaintiff
under the Wrongful Death Act) and the amount of money that the
decedent would have spent on [himself] [herself] for [his] [her]
personal maintenance during this period. The probable cost of
personal maintenance includes only the necessary and economical
living expenses, such as food, shelter, and clothing, that the
decedent would have been required to spend in order to maintain
life during this period.
3. The plaintiff is entitled to be awarded the value of the net
amount that the decedent would have earned between today and
the end of [his] [her] life expectancy. Again, net earnings for this
period are decided as follows: you must first calculate the total
amount of the decedent's gross earnings between today and the end
of [his] [her] life expectancy; from this amount you must deduct
the probable cost of [his] [her] necessary and economical living
expenses required to sustain life during this period [together with
278
the amount of monetary contributions [he] [she] would have made

to [his] [her] family during this period (which you have already
awarded under the Wrongful Death Act)]. Your award to the estate
for total lost future net earnings thus represents the total net
earnings over the decedent's work life expectancy.
4. The plaintiff is entitled to be awarded an amount that you
believe will fairly and adequately compensate for the mental and
physical pain, suffering, and inconvenience and loss of life's
pleasures that the decedent endured from the moment of [his] [her]
injury to the moment of [his] [her] death as a result of this
accident.
C. You are to add each of these items of damages together in its proper
category and return your verdict in two lump sum amounts, one under the
Wrongful Death Act and the second under the Survival Act.
279
RHODE ISLAND
Kimberly Simpson
Catherine Shaghalian
Vetter & White
Providence, Rhode Island
401-421-3060
No claim for damages should be allowed to stand where such claim is not
supported by the required degree of proof, or is speculative, or imaginary, or is
clearly attributable to other causes. Perrotti v. Gonicberg, 877 A.2d 631, 636 (R.I.
2005); Andrews v. Penna Charcoal Co., 222, 179 A. 696, 700 (1935).
I.
Economic Damages:
1. Medical Expenses. Medical expenses are recoverable. The medical
costs claimed must be found medically reasonable and must be
necessarily incurred in providing care, treatment and medical
attendance. In assessing damages, the jury should consider evidence
that establishes that plaintiffs medical treatment was necessary as a
result of the incident/accident and the reasonable charge for the
treatment. Model Civil Jury Instructions For Rhode Island 1002.1.1;
Markham v. Cross Transportation, Inc., 376 A.2d 1359 (R.I. 1977);
Oresman v. G.D. Searle & Co., 388 F.Supp.1175 (D.R.I. 1975) Lebon
v. B.L.&M. Bottling Co., 339 A.2d 272 (1975).
2. Present Damages for Future Medical Treatment. Present damages
for future medical treatment are recoverable if they are reasonably
certain to become necessary as a proximate result of a plaintiffs
injuries. Shepardson v. Consolidated Medical Equipment, 714 A.2d
1181 (R.I. 1988); Markham v. Cross Transportation, Inc., 376 A.2d
1359 (R.I. 1977); Pescatore v. MacIntosh, 319 A.2d 21 (R.I. 1974);
Labree v. Major, 306 A.2d 808 (R.I. 1973); Tilley v. Mather, 124 A.2d
872 (R.I. 1956); MacGregor v. Rhode Island Co., 60 A. 761 (R.I.
1905); See Model Civil Jury Instructions For Rhode Island 1002.1.3.
Damages for future medical expenses do not need to be discounted for
present value. Shepardson v. Consolidated Medical Equipment, 714
A.2d 1181 (R.I. 1988).
3. Loss of Earnings/Wages. Plaintiff is entitled to be compensated for
the amount of earnings/wages plaintiff was reasonably certain to have
earned if he/she had not been injured Jackson v. Choquette & Co., 80
A.2d 172 (R.I. 1951). Where there is no work history for a minor, a
jury may consider evidence relating to the age, sex, physical and
mental characteristics of the child, the position in life and earning
280
capacity of its parents as bearing upon the conditions under which the
child would probably have been reared and educated. It is left it to the
jury to assess the damages subject to the power and duty of the trial
justice to confine the award within the bounds of reasonable
probability. Gill v. Laquerre, 152 A. 795, 796 (R.I. 1931).
4. Loss of Future Earning Capacity. Damages for impairment of
earning capacity are recoverable. The proper measure of damages is
the difference between what the plaintiff, if uninjured, would have
been capable of earning. DAndrea v. Sears, Roebuck & Co., 287 A.2d
629 (R.I. 1972).
II.
1. Pain and Suffering. Damages for pain and suffering are recoverable.
Pain means physical pain, the kind resulting from a physical impact or
injury. It includes physical pain as well as discomfort, stiffness, and
restriction of bodily motion that is caused by the pain or discomfort
brought about by moving. Suffering means recognizing the pain, the
danger resulting from the pain, and the knowledge that the pain and
treatment for it will continue. Arlan v. Cervini, 478 A.2d 976 (R.I.
1984); Blais v. King, 2009 R.I. Super. LEXIS 4, 11-12 (R.I. Super. Ct.
2009).
Rhode Island courts have not adopted a formula or recognized any socalled "rule of thumb" for the computation of the damages to be
awarded for pain and suffering. The establishment of the amount to be
awarded for such damages is left to the discretion of the jury. A jurys
verdict for pain and suffering damages will only be reduced when it
appears that they are grossly excessive. To be grossly excessive, there
must be a demonstrable disparity between the amount awarded and the
pain and suffering shown to have been endured as a consequence of
the injury sustained. Proffit v. Ricci, 463 A.2d 514 (R.I. 1983);
Hayhurst v. LaFlamme, 441 A.2d 544 (R.I. 1982); Bruno v. Caianiello,
404 A.2d 62 (R.I. 1979); Tilley v. Mather, 124 A.2d 872 (R.I. 1956);
Handy v. Geary, 252 A.2d 435 (R.I. 1969).
2. Mental Suffering. Mental suffering, which may include nervousness,
grief, anxiety, worry, shock, humiliation, embarrassment, or indignity,
arising from consciousness of a facial or bodily scar, is a compensable
element of damages. Arlan v. Cervini, 478 A.2d 976, 980 (R.I. 1984).
3. Future Pain and Suffering. Damages for future pain and suffering
are recoverable if plaintiff proves he/she is reasonably certain to
experience future pain and suffering.
Markham v. Cross
Transportation, Inc., 376 A.2d 1359 (R.I. 1977); Pescatore v.
281
MacIntosh, 319 A.2d 21 (R.I. 1974); Labree v. Major, 306 A.2d 808
(R.I. 1973). In some cases the injuries sustained are of a nature that in
and of themselves warrant an inference that they will cause future pain
and suffering. In such a case, expert testimony in support of future
pain and suffering is not required. See MacGregor v. Rhode Island
Co., 60 A. 761 (R.I. 1905).
4. Disfigurement. Disfigurement such as scar or loss of limb is
compensable in damages. Arlan v. Cervini, 478 A.2d 976, 980 (R.I.
1984). See also Model Civil Jury Instructions For Rhode Island
10002.5.
5. Bodily Injury and Impairment. Damages for bodily injury and
impairment sustained as a proximate result of the incident are
recoverable as are any impairment or disability that resulted from
those bodily injuries. Model Civil Jury Instructions For Rhode Island
10001, 10002.5
6. Loss of Consortium for Parents. Parents are entitled to recover
damages for the loss of their unemancipated minor child's society and
companionship caused by tortious injury to the minor. R.I. G. L. 9-141.
7. Emotional Distress for Parents. A parent may recover damages for
negligent infliction of emotional distress. In order to recover, however,
a party must (1) be a close relative of the victim, (2) be present at the
scene of the accident and be aware that the victim is being injured, and
(3) as a result of experiencing the accident, suffer serious emotional
injury that is accompanied by physical symptomatology. Marchetti v.
Parsons, 638 A.2d 1047, 1052 (R.I. 1994). See also Reilly v. United
States, 547 A.2d 894, 896 (R.I. 1988).
8. Punitive Damages . Punitive damages are recoverable where there is
evidence of such willfulness, recklessness or wickedness on the part of
the party at fault as amounts to criminality, which for the good of
society and warning to the individual, ought to be punished.
Palmisano v. Toth, 624 A.2d 314, 318 (R.I. 1993).
III.
Jury Instructions
a. Compensable Damages for Personal Injuries. Model Civil Jury
Instructions For Rhode Island 10001.
If you find the defendant is liable to plaintiff for the incident and/or
accident that occurred, then you must consider the question of damages.
Damages are defined in law as that amount of money that will compensate
an injured party for the harm or loss that he/she has sustained. The
rationale behind compensatory damages is to restore a person to the
282
position he/she was in prior to the harm or loss. Compensatory damages,

then, is the amount of money which will replace, as near as possible, the
loss or harm caused to a person.
When you assess damages, you must not be oppressive or unconscionable,
and you may assess only such damages as will fairly and reasonably
compensate plaintiff insofar as the same may be computed in money. You
must confine your deliberations to the evidence, and you must not indulge
in guesswork, speculation or conjecture.
See also Model Civil Jury Instructions For Rhode Island 1002 and 1003
for jury instructions for specific elements of compensable damages.
While there is no Rhode Island case or statute that speaks directly to this
issue, some indirect support can be found for a parents right to sue for a minors
medical expenses. See R.I.G.L. 33-15.1-1 (provides that parents are equally
charged with their childs care, nurture, welfare and education); Julian v. Zayre
Corp., 388 A.2d 813 (R.I. 1978) (involved claim made by mother for childs
medical expenses); Hamrick v. Hospital Service Corp., 296 A.2d 15 (R.I. 1972)
(held that a parent in the discharge of his duty to care for his child can bind that
child, even though a minor, to a subrogation clause of a medical service contract);
Neves v. Nemtzow 12 A.2d 660 (R.I. 1940) (court upheld award of damages to
father on claim for medical expenses resulting from minor childs injuries).
Pursuant to R.I.G.L 10-7-1:
[W]henever the death of a person shall be caused by the wrongful act,
neglect, or default of another, and the act, neglect, or default is such as would, if
death had not ensued, have entitled the party injured to maintain an action and
recover damages in respect thereof, the person who, or the corporation which,
would have been liable if death had not ensued shall be liable to an action for
damages, notwithstanding the death of the person injured, and although the death
shall have been caused under such circumstances as amount in law to a felony.
I.
Economic Damages
1. Loss of Future Earning Capacity. Damages for loss of future
earning capacity are recoverable. R.I.G.L. 10-7-1.1; They are
determined as follows:
(1) Determine the gross amount of the decedent's prospective income
or earnings over the remainder of his or her life expectancy, including
283
all estimated income he or she would probably have earned by his or

her own exertions, both physical and mental
(2) Deduct from the amount determined in subdivision (1) the
estimated personal expenses that the decedent would probably have
incurred for himself or herself, exclusive of any of his dependents,
over the course of his or her life expectancy.
(3) Reduce the remainder thus ascertained to its present value as of the
date of the award. In determining the award, evidence shall be
admissible concerning economic trends, including but not limited to
projected purchasing power of money, inflation, and projected increase
or decrease in the costs of living.
R.I.G.L. 10-7-1.1.
In calculating amount of damages for wrongful death of a minor, the
only relevant earnings are those after age 21 and any before that age
would not belong to the decedent. Williams v. United States, 435 F.2d
804 (1st Cir. 1970).
2. Medical expenses. Medical expenses until the time of death are
recoverable. R.I.G.L 10-7-5.
3. Diminution of Earning Capacity. Damages for diminution of
earning capacity until time of death are recoverable. R.I.G.L. 10-75.
II.
1. Pain and Suffering. Damages for pain and suffering are recoverable.
No mathematical formula exists for awarding a plaintiff pain and
suffering damages in a wrongful death case. Such an award, however,
must be consistent with the evidence and not unduly motivated by
sympathy, passion or prejudice. Oliveira v. Jacobson, 846 A.2d 822,
827 (R.I. 2004).
2. Loss of Consortium for Parents. A parent may recover damages for
loss of consortium. R.I.G.L. 10-7-1.2. When awarding damages for
loss of society and companionship in cases arising out of the wrongful
death of a minor, factors properly considered are (1) the relationship
between parent and child; (2) the living arrangements of the parties;
(3) any absence of the deceased from the beneficiary for extended
periods; (4) the harmony of family relations; and (5) common interests
and activities. Castillo-Monterroso v. R.I. Hosp., 2009 R.I. Super.
LEXIS 24 (R.I. Super. Ct. 2009) citing Wellborn v. Sears, Roebuck &
Co., 970 F.2d 1420, 1429 (5th Cir. 1992) (applying Texas law).
284
3. Punitive damages are NOT recoverable

Punitive damages are not recoverable in a wrongful death case.
Simeone v. Charron, 762 A.2d 442, 444-445 (R.I. 2000).
III.
Jury Instructions
Rhode Island has no model jury instruction specific to wrongful death.
The following is an example of a jury instruction, in pertinent part, used in
a recent minor wrongful death action.
a. Damages
Because damages are an element of the Plaintffs case, they too must be
proven by a fair preponderance of the evidence. You may not speculate in
awarding damages.
If you find in favor of Plaintiffs, then you should award Plaintiffs such
sum as you believe will fairly and justly compensate them for any
damages you believe that they sustained, and are reasonably certain to
sustain in the future as a direct result of [minor]s death.
Damages must be reasonable. If you should find that Plaintiffs are entitled
to a verdict, you may award them only such damages as will reasonably
compensate them for such injury and damages as you find, from a
preponderance of the evidence in this case that they have sustained as a
proximate result of [minor]s death.
285
SOUTH CAROLINA
Deirdre McGlinchey
Michelle L. Miller
Cara E. Hall
McGlinchey Stafford PLLC
New Orleans, Louisiana
(504) 586-1200
When a minor receives personal injuries proximately caused by the
actionable negligence, recklessness and willfulness of another, a cause of action
arises in favor of the injured minor and such minor can maintain a suit to recover
the resulting damages through a guardian Ad litem. Hughey v. Ausborn, 154
S.E.2d 839, 840 (S.C. 1967).
I.
Economic damages:
Economic damages are defined as pecuniary damages arising
from medical expenses and medical care, rehabilitation services, costs
associated with education, custodial care, loss of earnings and earning
capacity, loss of income, burial costs, loss of use of property, costs of
repair or replacement of property, costs of obtaining substitute domestic
services, a claim for loss of spousal services, loss of employment, loss of
business or employment opportunities, loss of retirement income, and
other monetary losses. S.C. Code Ann. 15-32-210(3) (1976).
These actual damages are assessed in money and the principle is
that the person injured shall receive compensation commensurate with
his loss or injury, and no more. Kapuschinsky v. United States, 259
F.Supp. 1, 6 (D.S.C. 1966). The recovery should be proportionate to the
injuries sustained and should be sufficient to recompense him for his
injuries. Id.
Loss of earning capacity, not yet determined, [due to minority],
cannot, therefore be considered, but the court must realize that plaintiff,
will, must, earn her keep after maturity. Kapuschinsky v. United States,
259 F.Supp. 1, 6 (D.S.C. 1966). Therefore, the court must determine just
compensation for the other elements which include pain and suffering,
medical expenses and any future damages resulting from permanent
injuries. Id. An infant will not be denied recovery for loss of earning
power or his prospective loss of earnings after he has reached his majority
because his time has been spent in school or he has never earned
anything. Doremus v. Atlantic Coast Line Railroad Co., 130 S.E.2d 370,
382 (S.C. 1963). While there may not be any evidence, opinion or
286
otherwise, as to the extent, if any, the earning capacity of the minor

plaintiff will be impaired upon his attaining his majority[,] the jury can
infer the damage and use their sound judgment and experience to
determine the future earning capacity. Id.
II.
Noneconomic damages are defined as nonpecuniary damages
arising from pain, suffering, inconvenience, physical impairment,
disfigurement, mental anguish, emotional distress, loss of society and
companionship, loss of consortium, injury to reputation, humiliation, other
nonpecuniary damages, and any other theory of damages including, but
not limited to, fear of loss, illness, or injury. S.C. Code Ann. 15-32210(9) (1976). These damages are governed by the South Carolina
Noneconomic Damage Awards Act of 2005, S.C.Code Ann. 15-32-200
(1976), et seq., and are listed below:
1. Loss of enjoyment of life. [D]amages for loss of enjoyment of life
compensate for the limitations, resulting from the defendants
negligence, on the injured persons ability to participate in and derive
pleasure from the normal activities of daily life, or for the individuals
inability to pursue his talents, recreational interests, hobbies, or
avocations. Boan v. Blackwell, 541 S.E.2d 242, 244 (S.C. 2001).
2. Pain and Suffering. An award for pain and suffering compensates
the injured person for the physical discomfort and the emotional
response to the sensation of pain caused by the injury itself. Boan v.
Blackwell, 541 S.E.2d 242, 244 (S.C. 2001).
3. Mental Anguish. Mental anguish is compensated when the injured
person suffered shock, fright, emotional upset, and/or humiliation as
the result of the defendants negligence. Boan v. Blackwell, 541
S.E.2d 242, 244 (S.C. 2001).
In addition to statutory non-economic damages, a plaintiff may
recover punitive damages.
Punitive Damages. The purposes of punitive damages are to punish
the wrongdoer and deter the wrongdoer and others from engaging in
similar reckless, willful, wanton, or malicious conduct in the future.
Punitive damages also serve to vindicate a private right of the injured
party by requiring the wrongdoer to pay money to the injured party.
Clark v. Cantrell, 339 S.C. 369, 378-79, 529 S.E.2d 528, 533 (2000)
(internal citations omitted). Punitive damages may only be awarded if
the plaintiff recovers actual damages. Garner v. Wyeth Labs., Inc.,
287
585 F.Supp. 189, 194 (D.S.C. 1984). Punitive damages may be

recovered when a tortfeasor acts willfully, wantonly, or in reckless
disregard of the rights of another. City of Greenville v. W.R. Grace &
Co., 827 F.2d 975 (4th Cir. 1987). The test for awarding punitive
damages is whether the tort has been committed in such a manner or
under circumstances that a person of ordinary reason or prudence
would have been conscious of it as an invasion of the plaintiffs
rights. Cartee v. Lesley, 350 S.E. 2d 388, 390 (S.C. 1986). Punitive
damages must be proven by clear and convincing evidence. S.C. Code
Ann. 15-33-135 (1976).
III.
Jury Instructions
a. Negligence Elements. Ralph King Anderson, Jr., Andersons 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 plaintiffs cause of action. They
are denied by the defendants answer. Since the plaintiff has initiated and
brought this lawsuit against the defendant, the burden of proof is upon him
to establish all three by the greater weight or preponderance of the
evidence:
(1)
That the defendant was negligent or careless and/or
reckless, willful or wanton;
(2)
That the plaintiff was injured or damaged in his person or
property or both;
(3)
That the defendants negligence or carelessness and/or
recklessness, willfulness, and wantonness was the proximate cause
of the plaintiffs injuries.
What is negligence? Negligence is defined in the law as the absence of
due care. The want or lack of due care or ordinary care. The word
carelessness conveys the same idea as negligence by the defendant.
Negligence is the failure, by omission or commission, to exercise due care
as a person of ordinary reason and prudence would exercise in the same
circumstances. It is the doing of some act which a person of ordinary
prudence would not have done under similar circumstances or failure to do
what a person of ordinary prudence would have done under similar
circumstances.
In determining whether a particular act is negligent, the test you apply is
what would a person of ordinary reason and prudence do under those
circumstances at that time and place.
288
It is incumbent upon the plaintiff to prove the defendant was negligent in

one or more of the particulars as alleged in the complaint. It is not
required that the plaintiff prove them all, but it is absolutely essential that
the plaintiff prove at least one. Otherwise, you would be required to find a
verdict for the defendant.
Negligence is a fact which, like any other fact in the case, must be proved.
The mere happening of an accident, or the filing of a complaint, or the fact
that damages have been sustained, raises no presumption of negligence. A
surmise or conjecture that the defendant was negligent is not evidence
thereof. The bare fact that an innocent party sustained injury or damage
does not place any responsibility on another party unless you find that
there was some act of negligence on the part of that party which caused
the injury or damage.
If you find that the plaintiff has proved the defendant was negligent
[and/or reckless, willful, and wanton], then your next inquiry would be
whether the plaintiff has proved that such negligence was the proximate
cause of the injury or damage. Negligence is not actionable unless it
proximately causes the plaintiffs injuries. A plaintiff may only recover
for injuries proximately caused by the defendants negligence.
Even if you should find that the plaintiff has proved the defendant was
negligent [or reckless, willful, and wanton], but has failed to prove that
such negligence [or recklessness, willfulness, and wantonness] was a
proximate cause of the injury, the plaintiff would have failed to make out
his case and you would be required to find for the defendant. However, if
the plaintiff has proved these two propositions, then it would be necessary
for him to prove his damages.
b. Comparative Negligence. Anderson, Andersons S.C. Requests to
Charge Civil, 23-1 (2009).
Comparative negligence is the law in South Carolina. Under the doctrine
of comparative negligence, the plaintiff's negligence does not
automatically bar recovery unless such negligence exceeds that of the
defendant. A plaintiff in a negligence action may recover damages if his
negligence is not greater than that of the defendant. The amount of the
plaintiff's recovery shall be reduced in proportion to the amount of his
negligence.
You, the jury, must apportion fault between the plaintiff and defendant in
a negligence action. The plaintiff may recover damages when his
negligence is not greater than that of the defendant. The plaintiff's
damages, however, are reduced in proportion to the amount of his
negligence.
289
One of the defenses interposed by the defendant is that of comparative

negligence. A defendant, by his defense, in essence says this: Even if the
jury should find that I was at fault, the plaintiff was more at fault than I
was and the fault of each of us combined and concurred with that of the
other to act as the proximate cause of the accident and, without which, the
accident would not have happened. In other words, it required the fault of
each of us for the accident to have happened, but the plaintiff was more at
fault than I was.
The plaintiff has the burden of proving the negligence and fault, if any, of
a defendant. A defendant has the burden of proving the negligence and
fault, if any, of the plaintiff and the degree of such.
Where negligence has been established on the part of both the defendant
and the plaintiff, then you must weigh or compare the respective
contributions of each person to the occurrence. Considering the conduct of
each person involved as a whole, you must determine whether one made a
larger contribution than the other.
In making this comparison, the degree of negligence attributable to a party
is not to be measured solely by the character thereof, nor solely by the
number of respects in which he is found to have been at fault. It is the
conduct of a party considered as a whole which must be determined. That
is to say, once it has been established that each has been at fault, it is then
the jury's function to weigh their respective contributions to the result,
which will, regardless of the nature of their acts or omissions, determine
who made the larger contribution and to what extent it exceeds or is less
than that of the other.
It is the conduct of the parties considered as a whole which is being
measured by you in the form of a percentage.
If you find that the occurrence was proximately caused by negligence on
the part of the defendant and not by negligence on the part of the plaintiff,
then the plaintiff is entitled to recover the full amount of any damages you
may find he has sustained as a result of the occurrence.
If you find the occurrence was proximately caused by the negligence of
both the plaintiff and the defendant, then you must compare the
percentages of that negligence. If the negligence of the plaintiff is less
than or equal to the negligence of the defendant, then the plaintiff is
entitled to recover any damages which you may find he has sustained as a
result of the occurrence after you have reduced his damages in proportion
to the degree of the plaintiff's own negligence. On the other hand, if the
defendant was not negligent or if the negligence of the defendant was less
than the negligence of the plaintiff, then the plaintiff is not entitled to
recover any damages. If you find the plaintiff's negligence to be greater
290
than that of the defendant against whom recovery is sought, then the
plaintiff shall not recover and you will find for the defendant.
Comparative negligence, if proven by the defendant, can have one of two
possible effects. First, comparative negligence will totally defeat a
recovery by an injured plaintiff if the negligence of the injured plaintiff
was greater than that of the defendant. Another way of saying this is to say
that a plaintiff can recover only when his negligence, if any, is equal to or
less than that of the defendant. In order to prevent a verdict in favor of a
plaintiff injured by the negligence of a defendant, the defendant has the
burden of proving by the greater weight or preponderance of the evidence
that the plaintiff was negligent and that the plaintiff's negligence was
greater than that of the defendant.
The second possible effect of comparative negligence is that, if proven, it
will reduce or partially defeat the plaintiff's recovery. This applies when
the plaintiff's negligence is equal to or less than the negligence of the
defendant. Such a reduction is made when the defendant proves, by the
preponderance or greater weight of the evidence, that the plaintiff was
negligent but that the plaintiff's negligence was equal to or less then the
defendant's negligence.
Please remember that the plaintiff's negligence must have contributed
proximately to his injury. If the negligence of the plaintiff operated only
remotely and not proximately to cause the injury, the plaintiff is neither
barred from recovery nor is his recovery reduced in any way.
c. Standard of Care of a Child. Anderson, Andersons S.C. Requests to
A child under the age of fourteen years is not required to conform to an
adult standard of care. A minor's conduct should be judged by the standard
of behavior to be expected of a child of like age, intelligence, and
experience under like circumstances. A child may be so young as to be
manifestly and utterly incapable of exercising any of those qualities of
attention, perception, knowledge, experience, intelligence, and judgment
which are necessary to enable the child to perceive a risk and to realize its
unreasonable character. On the other hand, it is obvious that a minor who
has not yet attained majority may be quite as capable as an adult of
exercising such qualities.
d. Actual Damages. Anderson, Andersons S. C. Requests to Charge
Civil, 13-2 (2009).
Actual damages are properly called compensatory damages, meaning to
compensate, to make the injured party whole, to put him in the same
position he was in prior to the damages received insofar as this is
291
monetarily possible. In other words, actual or compensatory damages

include compensation for all injuries which are naturally the proximate
result of the alleged wrongful conduct of the defendant.
Actual damages are awarded to a litigant in compensation for his actual
loss or injury. Actual damages are such as will compensate the party for
injuries suffered or losses sustained. They are such damages as will
simply make good or replace the loss caused by the wrong or injury.
Actual damages are damages in satisfaction of, or in recompense for, loss
or injury sustained. The goal is to restore the injured party, as nearly as
possible through the payment of money, to the same position he was in
before the wrongful injury occurred.
The basic measure of actual damages is the amount needed to compensate
the plaintiff for the losses proximately caused by the defendants wrong so
that the plaintiff will be in the same position he would have been in if
there had been no wrongful injury. Actual damages include compensation
for all injuries which are naturally the proximate result of the alleged
wrongful conduct of the defendant.
The existence, causation, or amount of damages cannot be left to
conjecture, guesswork or speculation. However, proof of amount of loss
with absolute or mathematical certainty is not required. Damages must be
proved with a reasonable degree of certainty. The evidence presented by
the plaintiff must enable you, the jury, to determine what amount is fair,
just and reasonable.
The plaintiff bears the burden of proving by the preponderance of the
evidence that he is entitled to compensatory damages.
e. Nominal Damages. Anderson, Andersons S.C. Request to Charge
Civil, 13-1 (2009).
The defendant has denied the plaintiff sustained any real or substantial
personal injuries as a result of the accident. If you find the defendant's
negligence caused the plaintiff some damage, but the evidence does not
convince you the plaintiff sustained any real or substantial damages as a
proximate result of the defendant's negligence, you could find nominal
damages in favor of the plaintiff.
A small sum, known as nominal damages, may be awarded when the
plaintiff has proved no substantial loss or injury but when the law
recognizes the violation or invasion of a legal right or the breach of a duty,
or when the plaintiff's evidence shows the existence but not the amount of
an actual injury. Nominal damages are a trivial or trifling sum awarded to
292
a plaintiff in an action where there is not substantial loss or injury to be

compensated, but still the law recognizes a technical invasion of the
plaintiff's rights or a breach of the defendant's duty. Nominal damages are
awarded for the vindication of a right where no real loss or injury can be
proved.
If no actual damages capable of pecuniary estimation have been sustained,
but legal right of the plaintiff has been thereby violated through the
defendant's negligence, you can award only nominal damages-such as one
dollar, one cent, or other inconsiderable amount-to vindicate plaintiff's
legal right.
The parent has the right to recover for the treatment had or necessary, and
expenses incidental thereto until the child reaches majority. Kapuschinsky v.
United States, 259 F.Supp. 1, 7 (D.S.C. 1966). The amount paid for medical care
and treatment by the parent is not an element of the damages in the minors cause
of action. [T]he parent has a cause of action for the recovery of the medical
expenses which he has incurred for the care and treatment of the minor. Hughey
v. Ausborn, 154 S.E.2d 893, 841 (S.C. 1967). The parent does not have the right
to recover punitive damages; that right of recovery is with the child. Id. The
parents damages are restricted strictly to their pecuniary loss. Id.
Damages Recoverable in Minor Wrongful Death Claim
A civil action for wrongful death is authorized by South Carolina Code
Ann. 15-51-10 (1976): In every [wrongful death] action the jury may give
damages, including exemplary damages when the wrongful act, neglect, or default
was the result of recklessness, willfulness, or malice, as they may think
proportioned to the injury resulting from the death to the parties respectively for
whom and for whose benefit such action shall be brought. S.C. Code Ann. 1551-40 (2005). The measure of actual damage for wrongful death is governed by
the South Carolina Wrongful Death Statute. S.C. Code Ann. 15-51-10 (1976),
et seq.
Every such action shall be for the benefit of the wife or husband and
child or children of the person whose death shall have been so caused, and, if
there be no such wife, husband, child or children, then for the benefit of the parent
or parents, and if there be none such, then for the benefit of the heirs of the person
whose death shall have been so caused. Every such action shall be brought by or
in the name of the executor or administrator of such person. S.C. Code Ann.
15-51-20 (1976).
In the event of the death of an illegitimate child . . . by the wrongful or
negligent act of another, such illegitimate child or the mother or father or the heirs
at law or the distributees of such illegitimate child shall have the same rights and
293
remedies in regard to such wrongful and negligent act as though such illegitimate
child had been born in lawful wedlock. S.C. Code Ann. 15-51-30 (1976).
South Carolina also allows for Survival Damages. The South Carolina
survival statute provides that a cause of action for injuries to a person shall
survive the persons death, with damages recoverable by the legal representative
of the deceased. Smalls v. South Carolina Dept. of Educ., 528 S.E.2d 682, 686
(S.C. Ct. App. 2000); S.C. Code Ann. 15-5-90 (1976). The damages include
recovery for the deceaseds conscious pain and suffering, mental distress of the
deceased, and medical expenses. Id.; Scott v. Porter, 530 S.E.2d 389, 395 (S.C.
Ct. App. 2000).
I.
Economic Losses:
1. Pecuniary loss. Pecuniary loss is not presumed when a minor child
dies; actual loss must be proven. Adams v. Hunter, 343 F.Supp. 1284
(D.S.C. 1972). In a wrongful death case, there are three factors to
determine pecuniary loss: (1) the prospective earnings of the decedent
subsequent to death, (2) calculated on the basis of his work
expectancy, and (3) the extent to which his statutory beneficiaries
might logically and reasonably have been expected to share in such
prospective earnings. Brooks v. United States, 273 F.Supp. 619, 626
(D.S.C. 1967). However, the court in Adams states that the formula
used in the Brooks case is not applicable for determining pecuniary
loss in the case of a minor, therefore, making the method of proof in
such a case unclear. Adams, 343 F.Supp. 1290.
In Adams the court found that contribution to the family had been
proven. Id. at 1290. The plaintiffs established that the deceased was a
dutiful son who worked for his father after school and during
vacations. Id. He planned on joining the family business as an equal
partner when he reached the age of majority. Id. Out of the money he
earned he paid for his own clothing, his car and many other
necessaries of life. Id. In establishing the amount of pecuniary
damages owed, the court stated that: [n]o matter what amounts or
types of contribution are shown, damages are recoverable only for the
period of the childs minority and for such benefits after minority as
are probable and reasonably certain from the evidence. Id.
In a wrongful death case where both children died, the mother was
awarded pecuniary damages for the anti-depressant she would be
required to take for the remainder of her life. Hurd v. United States,
134 F.Supp.2d 745, 776 (D.S.C. 2001). She was also awarded funeral
expenses under the category of pecuniary damages. Id.
294
II.
2. Funeral Expenses. Funeral expenses are authorized by S.C. Code

Ann. 15-5-100 (1976). Smalls v. South Carolina Dept. of Educ., 528
S.E.2d 682, 686 (S.C. Ct. App. 2000).
Noneconomic Losses:
1. Nonpecuniary damages. Parents are entitled to a presumption of
nonpecuniary damages in a wrongful death case. Scott v. Porter, 530
S.E.2d 389, 394 (S.C. Ct. App. 2000). Specifically, parents may
recover for mental shock and suffering, wounded feelings, grief and
sorrow, loss of companionship, and deprivation of the use of
intestates society, the loss of his experience, knowledge, and
judgment in managing the affairs of himself and of his beneficiaries.
Id.; Adams v. Hunter, 343 F.Supp. 284, 280 (D.S.C. 1972).
2. Punitive Damages. A jury may award exemplary damages when the
wrongful act, neglect, or default was the result of recklessness,
willfulness, or malice, as they may think proportioned to the injury
resulting from the death to the parties respectively and for whose
benefit such action shall be brought. S.C. Code Ann. 15-51-40
(1976). Punitive damages must be specifically prayed for in the
complaint. S.C. Code Ann. 15-32-510 (1976).
III.
Jury Instructions
a. Finding Instruction. Anderson, Andersons S.C. Request to Charge
Civil, 35-2 (2009).
There are three essential elements of the plaintiffs cause of action. They
are denied by the defendants answer. Since the plaintiff has made these
charges as the foundation of his claimed right of damages against the
defendant, the burden of proof is upon the plaintiff to establish all three by
the
preponderance
or
greater
weight
of
the
evidence.
First, that the defendant was negligent [and/or reckless, willful, or wanton]
in one or more of those specifications of wrongful conduct as alleged in
the complaint.
Second, that the plaintiffs intestate, ___________, came to his untimely
death as a consequence of that alleged wrongful conduct.
Third that the defendants negligence [and/or recklessness, willfulness,
and wantonness], in one or more of the specifications of wrongful conduct
as alleged in the complaint, was the proximate cause of the death of the
plaintiffs intestate.
295
b. Damages. Anderson, Andersons S.C. Request to Charge Civil,

35-6 (2009).
In a wrongful death action, the damages recoverable are those sustained by
the statutory beneficiaries resulting from the death of the decedent. Thus,
the question of damages is not directed toward the value of the human life
that was lost, but rather the damages suffered by the beneficiaries as a
result of the wrongful death.
South Carolina Code section 15-51-40 (2005) reads: In every [wrongful
death] action the jury may give damages, including exemplary damages
when the wrongful act, neglect, or default was the result of recklessness,
willfulness, or malice, as they may think proportioned to the injury
resulting from the death to the parties respectively for whom and for
whose benefit such action shall be brought.
In an action for wrongful death, the elements of damages to be considered
by you, the jury, include:
(1) pecuniary loss or economic loss; pecuniary loss is a loss of
money, or of something by which money or something of money
value may be acquired;
(2) mental shock and suffering;
(3) wounded feelings;
(4) grief and sorrow;
(5) loss of companionship;
(6) deprivation of the use and comfort of the deceased's society,
including the loss of decedent's experience, knowledge and
judgment in managing the affairs of himself and his beneficiaries;
(7) loss of decedent's ability to earn money for the support,
maintenance, care and protection of the beneficiaries, [and for the
education and training of his children];
(8) reasonable funeral expenses.
The beneficiaries are entitled to recover all damages, past, present and
prospective, which are naturally the proximate consequence of the
wrongful act. Only such future or prospective damages may be awarded as
the evidence renders it reasonably certain will of necessity result from the
alleged injury.
In addition to actual damages, punitive damages may be awarded in a
wrongful death action. The wrongful death statute expressly authorizes
296
punitive damage awards in wrongful death actions when the defendant has
acted recklessly, willfully, or maliciously. You may award punitive
damages in this case if you find by clear and convincing evidence that the
wrongful act, neglect, or default was the result of recklessness, willfulness,
or malice.
c. Non-Pecuniary Damages. Anderson, Andersons S.C. Request to
In an action for wrongful death of a minor child, the parents are entitled to
a presumption of non-pecuniary damages.
d. Pecuniary Damages. Anderson, Andersons 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 case
involving the wrongful death of a minor child.
e. Funeral Expenses. Anderson, Andersons 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 decedents
burial. South Carolina Code section 15-5-100 (1977) provides: Damages
recoverable under [the wrongful death statute] may include reasonable
funeral expenses.
f. Future Damages Life Expectancy Table. Anderson, Andersons
S.C. Request to Charge Civil, 35-12 (2009).
In deciding the amount of money to include in your award of future
damages, it will be necessary for you to decide the probable life
expectancy of the decedent. To aid you in making this determination, you
may
consider
as
evidence
a
life
expectancy
table.
Life expectancy is the period of time in which a person of a given age and
sex is expected to live according to statistical or actuarial tables. Life
expectancy is merely an estimate of the probable average remaining length
of life of all persons in our State of a given age, and that estimate is based
on a limited record of experience. The inference which may be drawn
from the table is evidence bearing on the life expectancy of the decedent,
including his state of health, habits and occupation.
297
In this State, we have a statute known as the life expectancy tables. It is

section 19-1-150 of the South Carolina Code, which provides:
When it is necessary, in any civil action or other mode of litigation
to establish the life expectancy of any person from any period in
his life, whether he be living at the time or not, the [life
expectancy] table. . . shall be received in all courts and by all
person having power to determine litigation as evidence (along
with other evidence as to his health, constitution and habits) of the
life expectancy of such person. In determining a persons age as of
any particular time, periods of six months or more beyond the last
full year shall, in using the table . . ., be treated as one year.
You will take into consideration the decedents age and life expectancy.
The evidence in this case has established that the decedent was, at the time
of his death, ____ years of age. According to the governing life
expectancy table for a [male][female] of that age, the decedent had a life
expectancy of an additional ____ years, as indicated in section 19-1-150.
In determining how long the decedent would have lived, had the decedent
lived a normal life, you may consider his life expectancy at the time of
death. The life expectancy table received in evidence may be considered
in your determination of how long the decedent may have been expected
to live. Such tables are not binding on you, but may be considered
together with other evidence in the case bearing on the decedents health,
age, and physical condition, before [the injury and] death, in determining
the probable length of the decedents life. What weight you give to this
table is totally for you to determine. You may give it such weight and
such consideration as you deem proper.
298
SOUTH DAKOTA
J. Crisman Palmer
Rebecca L. Mann
(605) 342-1078
I.
Economic Damages:
1. Medical and other related expenses. A parent is liable for medical
expenses for his minor child. A parent has a claim for medical and
nursing expenses incurred during minority. A parent also is entitled to
the reasonable value of necessary household service, nursing, and
attendance, including services furnished gratuitously by family
members or others, which has been required as a result of the injury
and the value of such services reasonably certain to be required in the
future. Stormo v. Strong, 469 N.W.2d 816 (S.D. 1991).
2. Loss of earnings or wage-earning capacity. A parent has a claim for
loss of minors earning capacity during minority although parents may
relinquish to a child the right to control and receiving the childs
earnings. SDCL 25-5-7; 25-5-12. The child has a claim for loss of
earning capacity after majority.
II.
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 life
experienced in the past and reasonably certain to be experienced in the
future as a result of the injury. Wangen v. Knudson, 428 N.W.2d 242
(S.D. 1988) (Mental Suffering); Shamburger v. Berens, 418 N.W.2d
299 (S.D. 1988) (Future pain and loss of earnings).
2. Disability and disfigurement.
An award for temporary and
permanent disability is appropriate. Carey v. Jack Rabbit Lines, Inc.,
309 N.W.2d 824 (S.D. 1981). Disfigurement is included in jury
instructions. SD Pattern Jury Instruction 50-10-60.
3. Punitive damages. Punitive damages are available in a personal
injury action when the defendant is guilty of oppression, fraud, or
malice, actual or presumed, in order to make an example of or punish
the defendant. SDCL 21-3-2. Prior to discovery or submission to
the fact finder on the issue of punitive damages, the court must find by
299
clear and convincing evidence, following a hearing, that there is a

reasonable basis for the assertion that the defendants conduct was
willful, wanton or malicious. SDCL 21-1-4.1.
III.
Jury Instructions
a. Damages (Basic Instruction). 50-00-10.
If you decide for the plaintiff[s] on the question of liability you must then
fix the amount of money which will reasonably and fairly compensate the
plaintiff[s] for any of the following elements of loss or harm suffered in
person or property proved by the evidence to have been legally caused by
the defendant[s] conduct, [taking into consideration the nature, extent, and
duration of the injury], whether such loss or harm could have been
anticipated or not, namely:
(Insert the elements of damage which have a basis in the evidence.)
Whether any of these elements of damages have been proved by the
evidence is for you to determine. Your verdict must be based on evidence
and not upon speculation, guesswork, or conjecture.
b. Damages Disability and Disfigurement. 50-10-60.
The [disability] [and] [disfigurement].
Comment:
This instruction is to be inserted between the two paragraphs of
Instruction 50-00-10 when the evidence justifies its use.
c. Damages Pain and Suffering Past and Future. 50-10-70.
The pain and suffering, [mental anguish] [and loss of capacity of the
enjoyment of life] experienced in the past [and reasonably certain to be
experienced in the future] as a result of the injury.
Comment:
d. Damages Medical Expense Past and Future. 50-10-80.
300
The reasonable value of necessary medical care, treatment, and services

received [and the reasonable value of the necessary expense of medical
care, treatment and services reasonably certain to be received in the
future.]
Comment:
e. Damages Past Loss of Earnings. 50-10-90.
The earnings the plaintiff has lost, if any, from any source from the date of
the injury until the date of trial.
f. Damages Loss of Earning Capacity No Past Earnings.
110.
50-10-
Such sum as will reasonably compensate plaintiff for whatever loss of

earning capacity you find that the plaintiff has suffered as a result of the
injury.
In determining the plaintiffs loss of earning capacity, you may consider
such factors as the nature and extent of the injury, the plaintiffs age, life
expectancy, talents, skill, experience, training, education, and industry.
[Even if the plaintiff is earning more money now than before the injury,
the plaintiff is still entitled to recover for a loss of earning capacity
reasonably certain to be suffered during the remainder of the plaintiffs
life expectancy.]
Comment:
This instruction should be given when there is no history of past
earnings such as with a minor child or a homemaker.
g. Damages Minor Plaintiff Loss of Future Earnings or Profit. 5010-130.
The present cash value of earnings reasonably certain to be lost in the
future after the minor has reached age 18.
301
Comment:
This instruction is to be inserted appropriately into Instructions 5000-10 (DamagesBasic Instruction) and 50-20-120 (DamagesPresent
Value) when the evidence justifies its use.
h. Damages Caretaking Expense Past and Future. 50-10-140.
The reasonable value of necessary household service, nursing, and
attendance, [including services furnished gratuitously by family members
or others,] which has been required as a result of the injury [and the value
of such services reasonably certain to be required in the future].
Comment:
Instruction 50-00-10 (DamagesBasic Instruction) when the evidence
justifies its use.
claim?
Parent owns the right to sue for childs medical expenses and can only
recover expenses incurred until the age of majority when it becomes childs
claim. Hoglund v. Dakota Fir Ins. Co., 2007 S.D. 123, 742 N.W.2d 853; Doyen
v. Lamb, 59 N.W.2d 550 (S.D. 1953).
I.
Economic Damages:
1. Medical Expenses. Reasonable expense of necessary medical care,
treatment, and services received by the decedent.
2. Funeral Expenses. Funeral expenses are recoverable in wrongful
death action. Bethel v. Janis, 567 F.Supp. 56 (D.S.D. 1984).
3. Loss of employment. Any loss of employment is recoverable.
4. Household and Nursing Services. Reasonable value or expense of
necessary household service, nursing, and attendance provided to the
decedent.
302
II.
1. Pain and suffering.
Pain and suffering and mental anguish
consciously experienced by the decedent as a result of the injury.
2. Loss of Society. Loss of society, advice, assistance and protection are
proper elements of damages for the wrongful death of a minor child.
Loss of consortium, sorrow, mental distress and grief or pain suffered
on the part of the decedent are not recoverable. Zoss v. Dakota Truck
Underwriters, 590 N.W.2d 911 (S.D. 1999).
3. Punitive damages. Punitive damages are not recoverable in wrongful
death actions. Bethel v. Janis, 597 F.Supp. 56 (D.S.D. 1984).
However, an action for personal injury is maintainable independent of
a wrongful death action. Sander v. The Geib, Elston, Frost
Professional Association, 506 N.W.2d 107, 127 (S.D.1993); Pexa v.
Clark, 85 S.D. 37, 42, 176 N.W.2d 497, 500 (1970). A personal injury
action survives the death of the injured party and punitive damages
may be recoverable in the personal injury action. Ammann v. MasseyFerguson, Ltd., 933 F.Supp. 840, 842 (D.S.D. 1996).
Punitive damages are not recoverable against the estate of a deceased
tortfeasor. Olson-Roti v. Kilcoin, 2002 S.D. 131, 653 N.W.2d 254.
III.
Jury Instructions
a. Damages Wrongful Death of Minor Child. 50-30-20.
If you decide for the plaintiff[s] on the question of liability, you must then
fix the amount of money which will fairly compensate the
[parents][brothers and sisters][next of kin], called the heir[s] of the
decedent, for [his][her][their] pecuniary loss as a result of the death of the
decedent.
Where a [minor child][unborn child, viable or not, from fertilization to
live birth] dies leaving [a] surviving parent[s], the law recognizes a
presumption that the parent[s] [has][have] sustained a pecuniary loss from
the time of death of the decedent until the decedent would have reached
the age of 18 years. There is no presumption of pecuniary loss to any other
person.
In determining pecuniary loss to any heir and the weight to be given to the
presumption of pecuniary loss to the surviving parent[s], you may
consider what benefits of pecuniary value including moneys, goods, and
services, the heir[s] might reasonably have expected to receive from the
303
decedent had the decedent lived. You may also consider what pecuniary
loss any heir has suffered and is reasonably certain to continue to suffer in
the future by being deprived of the advice, companionship, society,
assistance, and protection of the decedent. As an offset against the factors
of loss mentioned, you may take into consideration any cost that would
have been incurred by the heir to support and educate the decedent had the
decedent lived.
In weighing these matters, you may consider the age of the decedent and
of each heir, the state of health and physical condition of the decedent and
of each heir as of the time of the decedents death and immediately prior
thereto; their station in life; their respective life expectancies as shown by
the evidence; the disposition of the decedent, whether it was kindly,
affectionate or otherwise; whether or not the decedent showed a
willingness and ability to furnish support to the heir[s]; the earning
capacity of the heir[s] and of the decedent; and all other facts in evidence
that throw light upon the question of pecuniary loss.
b. Damages Wrongful Death Factors to be Disregarded. 50-30-40.
The law does not permit you to, and you must not, award plaintiff[s] any
sum for the sorrow, mental distress and grief that the heir[s] may have
suffered by reason of the death of the decedent, [[nor for any suffering of
the decedent, if any, experienced before [his][her] death and caused by the
injury in question][nor for any pecuniary loss that the decedent may have
personally suffered]].
c. Damages Wrongful Death Elements of Loss. 50-30-60.
If you decide for the plaintiff[s] on the question of liability, you must then
fix the amount of money which will reasonably and fairly compensate the
plaintiff[s], in addition to damages for wrongful death, for any of the
following elements of loss or harm suffered in person or property by the
decedent during [his][her] lifetime proved by the greater convincing force
of the evidence to have been legally caused by the defendant[s] conduct,
[taking into consideration the nature, extent, and duration of the injury],
whether such loss or harm could have been anticipated or not, namely:
(1)
The aggravation of any pre-existing injury or condition;
(2)
The [disability] [and] [disfigurement];
(3)
The pain and suffering and mental anguish consciously
experienced by the decedent as a result of the injury;
(4)
The reasonable expense of necessary medical care,
treatment, and services received by the decedent;
(5)
The time the decedent lost, if any, from employment; and
304
(6)
The reasonable value or expense of necessary household
service, nursing, and attendance provided to the decedent.
Whether any of these elements or damages has been proved by the
evidence is for you to determine. Your verdict must be based on evidence
and not upon speculation, guesswork, or conjecture.
305
TENNESSEE
Timothy Peeples
Daniel Coker Horton & Bell, P.A.
Oxford, Mississippi
662-232-8979
I.
Economic Losses:
1. Loss of Earning Capacity. Present cash value of the earning capacity
that will be lost after the minor becomes 18 years of age. Wolfe v.
Vaughn, 152 S.W. 2d 631 (Tenn. 1941) (stating that [a]n injury to a
minor child gives rise to two causes of action, one on behalf of the
child for pain and suffering, his permanent injury, and impairment of
earning capacity after obtaining majority).
2. Medical Expenses. Medical expenses actually paid or incurred by the
minor. Smith v. King, 1984 Tenn. App. LEXIS 3174 (Ct. App. Tenn.
1984) (a child . . . may maintain an action for his medical expenses
provided that he has paid them . . . or is legally obligated to pay them.
3. Future Medical Expenses. Present cash value of any medical care
and treatment reasonably certain to be required in the future.
II.
Noneconomic Losses:
1. Pain and Suffering. Past physical pain and suffering, mental or
emotional pain and suffering, loss of capacity for enjoyment of life and
disfigurement. Riley v. Orr, 2010 Tenn. App. LEXIS 386 (Ct. App.
Tenn. 2010).
Tennessee Courts have declared that [p]ain and suffering
encompasses the physical discomfort caused by an injury and that
[m]ental or emotional pain and suffering encompasses anguish,
distress, fear, humiliation, grief, shame or worry. Riley, 2010 Tenn.
App. LEXIS 386 at *10.
2. Future Pain and Suffering. Present cash value of future physical
pain and suffering, mental or emotional pain and suffering, loss of
capacity for enjoyment of life and disfigurement. Riley v. Orr, 2010
Tenn. App. LEXIS 386 (Ct. App. Tenn. 2010).
3. Loss of Enjoyment of Life. In Tennessee, [d]amages for loss of
enjoyment of life compensate the injured person for the limitations
placed on his or her ability to enjoy the pleasures and amenities of
life. Id. at *23. Loss of enjoyment of life damages relate to daily
life activities that are common to most people. Id.; see also Dixon v.
306
Cobb, 2007 Tenn. App. LEXIS 434 (Ct. App. Tenn. 2007 (stating that
[i]mpairment of physical function prevents a person from living life
in comfort by adding inconvenience or loss of physical ability). The
loss of enjoyment of life may include the inability to continue a
particular career, . . . to pursue recreational or family activities, . . . and
to engage in normal sexual function. Id.
III.
Jury Instructions
a. Personal Injury Pain and Suffering. Tennessee Pattern Instruction
(T.P.I.) - CIVIL 14.10.
Plaintiff shall be awarded the following elements of damage experienced
in the past:
[Physical pain and suffering]
[Mental or emotional pain and suffering]
[Loss of capacity for the enjoyment of life]
[Disfigurement]
[You shall also award compensation for the present case value of:]
[Physical pain and suffering]
[Mental or emotional pain and suffering]
[Loss of capacity for the enjoyment of life]
[Disfigurement]
or may be reasonably certain to be experienced by a party in the future.
Pain and suffering encompasses the physical discomfort caused by an
injury. Mental
or emotional pain and suffering encompasses
anguish, distress, fear, humiliation, grief, shame or worry. Disfigurement
is a specific type of permanent injury that impairs a plaintiffs appearance.
Damages for loss of enjoyment of life compensate the injured person for
the limitations placed on the ability to enjoy the pleasures of life.
Impairment of physical function prevents a person form living life in
comfort by adding inconvenience or loss of physical ability.
There is no mathematical formula for computing reasonable compensation
for [physical pain and suffering] [mental or emotional pain and suffering]
[disfigurement] [loss of capacity for the enjoyment of life], nor is the
opinion of any witness required as to the amount of such compensation.
307
b. Injury to Minor - Suit by Parents and Minor. T.P.I. - CIVIL 14.25.

This lawsuit involves two separate claims. First is a claim by (minor) for
damages for injuries. The second claim is by (minors parent[s]) for
medical expenses incurred [and for loss of the earnings and services of the
minor during minority].
If, in accordance with these instructions, you are to determine the amount
of damages sustained by the minor, __________, and the parent[s]
_____________, you should fix an amount for each of the following
elements fo loss and warm provided it was or will be suffered by the
minor or the parent[s] and legally resulted from the fault you have
assigned.
[Here list elements of damage set out in T.P.I. Civil 14.26 & 14.27].
c. Minors Damages. T.P.I. - CIVIL 14.26.
The minors damages shall include:
1.
[insert the general instruction for pain and suffering

T.P.I. Civil 14.10];
2.
The present cash value of the earning capacity that will be

lost after the minor become 18 years of age;
3.
Medical expenses actually paid or incurred by the minor;

and
4.
The present cash value of any medical care and treatment

reasonably certain to be required in the future.
d. Parents Damages. T.P.I. - CIVIL 14.27.

The amount of the award to the parent[s] shall include:
1.
The cost of medical [hospital, nursing] services and

supplies reasonably required and actually incurred in the
treatment of the minor;
2.
Monetary loss, if any, actually suffered or reasonably

certain to be suffered in the future by the parent[s] because
of the loss of the minors services that would have been
performed prior to the childs 18th birthday; and
3.
Loss of the minors earnings, if any, actually suffered or

reasonably certain to be suffered in the future by the
parent[s] prior to the childs 18th birthday as a result of the
minors inability to pursue an occupation or employment.
308
The party who paid for medical expenses owns the right to recover those
expenses. See T.P.I. CIVIL 14.26 and 14.27.
I.
Damages Recoverable
Section 20-5-106 of the Tennessee Code Annotated: A minors right of

action shall not abate or be extinguished by the persons death but shall pass . . .
to the persons natural parents or parent or next of kin if at the time of death
decedent was in the custody of the natural parents or parent and had not been
legally surrendered or abandoned by them pursuant to any court order removing
such person from the custody of such parents or parent; or otherwise to the
persons legally adoptive parents or parent, or to the administrator for the use and
benefit of the adoptive parents or parent.
Section 20-5-107(a) of the Tennessee Code Annotated: The action may be
instituted by the personal representative of the deceased or by the surviving
spouse in the surviving spouses own name, or, if there is no surviving spouse, by
the children of the deceased or by the next of kin.
Section 20-5-107(b) of the Tennessee Code Annotated: In no event shall a
parent be permitted to recover through an action commenced pursuant to
subsection (a) until all child support arrearages, together with interest on the child
support arrearages, at the legal rate of interest computed from the date each
payment was due, have been paid in full to the parent ordered to receive the
support or to the parents estate if deceased.
Section 20-5-113 of the Tennessee Code Annotated: The party suing for a
persons death caused by the wrongful act, fault or omission of another . . . shall,
if entitled to damages, have the right to recover for the mental and physical
suffering, loss of time and necessary expenses resulting to the deceased from the
personal injuries, and also the damages resulting to the parties for whose use and
benefit the right of action survives from the death consequent upon the injuries
received.
The level of damages that may be recovered in a wrongful death action "is
a matter dependent most largely upon the judgment of the jury and their sound
discretion, after carefully, honestly and fairly considering all the various elements
that enter into the question." Crowe v. Provost, 374 S.W. 2d 645 (Tenn. Ct. App.
1963). Courts in Tennessee have approved what were deemed "substantial"
damages awards "notwithstanding the fact that [the minor involved] had never
been gainfully employed." Id. Damages are "to be measured by the experience
and judgment of the jury, enlightened by a knowledge of the age, sex, and
physical and mental characteristics of the child." Id. In cases where "damages
309
are claimed for the death of a child incapable of earning anything or rendering
service of any value, it has been held that the jury must make their estimate of
damages from the facts proved, and it is not necessary that any witness should
express an opinion of the amount of such pecuniary loss, it being proper for the
jury to exercise their own judgment upon the facts proved, by connecting them
with their own knowledge and experience which they are supposed to possess in
common with the generality of mankind." Id. Courts have stated that "substantial
damages may be awarded based solely on the other factors used to determine the
pecuniary value of life: life expectancy, age, health and personal
habits." Bradford v. Swain, 1989 Tenn. App. LEXIS 8 (Ct. App. Tenn. 1989).
The Tennessee Court of Appeals found that, based upon the facts in the case, "[i]t
[was] reasonable for the jury to find that [the minor], who was healthy except for
this illness, would have an earning capacity of at least minimum wage between
the ages of sixteen and sixty-five." Id.
II.
Jury Instruction
a. Wrongful Death. T.P.I. - CIVIL 14.30.
In this case, suit has been brought for damages alleging the death of
[(deceased)] was caused by the fault of the defendant. If you decide to
award damages, there are two classes of damages you may consider:
First, those damages sustained immediately by the injured party including

compensation for the following:
1.
The mental and physical suffering actually endured by the

injured party between the injury and death;
2.
Medical expenses necessitated by the injury, including

expenditures for doctors, nurses, hospital care, medicine
and drugs;
3.
Reasonable funeral expenses; and
4.
Loss of earning capacity during the period from injury to

death.
You may not speculate as to whether conscious pain and suffering actually
did exist between injury and death. If, however, you find that there was
such pain and suffering prior to death, you must award damages for it.
The second class of damages that may be awarded is the present case
value of the pecuniary value of the life of the deceased. In determining
this value, you should take into consideration the following factors:
1.
The age of the deceased;

310
2.
The condition of health of the deceased;
3.
The life expectancy of the deceased;
4.
The strength and capacity of the deceased for work and for
earning money through skill in any art, trade, profession,
occupation, or business;
5.
The personal habits of the deceased as to sobriety and

industry; and
6.
The reasonable value of the loss of consortium suffered by

the [wife] [and] [children] of the deceased.
Consortium is a legal term consisting of several elements. It includes

both tangible services provided by a family member, as well as intangible
benefits each family member receives from the continued existence of
other family members. Such intangible benefits include love, affection,
attention, education, guidance, care, protection, training, companionship
and cooperation [and, in the case of a spouse, sexual relations] that the
[wife] [and][children] would reasonably be certain to have received during
the life of the deceased.
[In determining whether to award damages for loss of consortium for the
death of a parent, you should consider the age of the [child] [children],
closeness of relationship, dependence and any other factors that reflect
upon the relationship between parent and child.]
In weighing these factors, you should consider the fact that expectancy of
life, is, at most, a probability based upon experience and statistics. You
should be mindful of the possibility that the earnings of an individual are
not always uniform over a period of time. You should consider not only
the most optimistic expectations of the future, but also the most
pessimistic, and all of the uncertainties between the extremes.
Finally, when determining the amount of damages based upon life
expectancy and earning capacity, you should deduct the present cash value
of the deceaseds living expenses had the deceased lived. These living
expenses are those that under the deceases standard of living would have
been reasonably necessary to keep the deceased in such a condition of
health and well-being as to maintain the capacity to earn money.
b. Present Cash Value Wrongful Death. T.P.I. - CIVIL 14.31.
I have used the expression present case value in these instructions
concerning damages for certain losses that may be awarded in this case.
311
In determining the pecuniary value of the life of [(deceased)], you must

adjust the award to allow for the reasonable earning power of money and
the impact of inflation.
Present cash value means the sum of money needed now, which when
added to what that sum may reasonably be expected to earn in the future
when invested, would equal the amount of damages at the time in the
future when the earnings would have been received, living expenses
incurred and the loss of consortium experienced. You should also
consider the impact of inflation, its impact on wages and its impact on
purchasing power in determining the present cash value of future
damages.
312
TEXAS
M. Scott Fisher, Jr.
Harman Claytor Corrigan & Wellman
Richmond, Virginia
(804) 747-5200
I.
Economic Damages:
1. Medical Expenses. [A]n unemancipated minor cannot recover for
hospital and medical expenses incurred during his minority and for
loss of earnings during his minority. It is the parent who is responsible
for the medical expenses and who is entitled to recover for those
expenses and for loss of earnings during minority. Kennedy v.
Kennedy, 505 S.W.2d 393, 397 (Tex.Civ.App. 1974).
2. Future Medical Expenses. A minor may recover any medical
expenses that she may in reasonable probability incur after her
eighteenth birthday. Sax v. Votteler, 648 S.W.2d 661,
667 (Tex.1983). Because a parent is primarily liable for a minor's
medical expenses incurred during minority and any cause of action for
medical expenses incurred up to age of 18 belongs to such parent, the
parent has the burden to request submission of future medical expenses
into separate parts: future medical expenses for the minor between the
time of trial and time he or she reaches age of majority and the future
medical expenses for minor after he or she reaches such age. Roth v.
Law, 579 S.W.2d 949 (Tex. Civ. App. 1979).
3. Loss of Income During Infancy. [S]ince the services and earnings
of an unemancipated minor belong to his parents, an infant may not
recover for diminution of his earning capacity during the period
intervening between the injury and his attainment of majority. Sax v.
Votteler, 648 S.W.2d 661, 666 (Tex. 1983) (citing Texas & P. Ry. Co.
v. Morin, 66 Tex. 225, 227, 18 S.W. 503, 503 (Tex. 1886)).
4. Future Lost Wages. A child may recover for loss of earning capacity
after attaining the age of 18. See Sax v. Votteler, 648 S.W.2d 661,
666 (Tex. 1983) (finding that, if a minor could prove her medical
malpractice case, she could recover her loss of earning capacity after
reaching the age of 18). See also Morrell v. Finke, 184 S.W.3d 257
(Tex.App.Fort Worth 2005) (affirming a jury award of $1.8 million
in damages for a minors loss of earning capacity).
5. Loss of Child Services. As a general rule, a claim for loss of services
of a minor is considered to be community property of the parents for
313
which only the father may sue. Loving v. Laird, 42 S.W.2d 483,
484 (Tex.Civ.App. 1931). However, a mother may recover for loss of
services if the father has abandoned the child. Id. Nonetheless, the
father may be a necessary party to the suit if there are no pleadings
addressing his relationship with the child. Houston Oxygen Co. v.
Davis, 139 Tex. 1, 4, 161 S.W.2d 474, 475 (Tex. Com. App. 1942).
6. Loss of Society is NOT recoverable. We conclude that no
compelling social policy impels us to recognize a parent's right to
damages for the loss of filial consortium. Roberts v. Williamson, 111
S.W.3d 113, 120 (Tex. 2003).
II.
1. Physical Pain and Suffering. A minor may recover damages for pain
and suffering, mental anguish, both past and future, as well as any
other damages that are peculiar to her or may accrue after she reaches
the age of majority. Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983).
2.
Punitive Damages. Exemplary damages may be award to a minor.

See Badeaux v. D.D., 2011 WL 1045525, 3 (Tex.App.Beaumont
2011) (upholding an award of $500,000 in exemplary damages to a
minor in a personal inury case where the defendant had been convicted
of aggravated sexual assault). However, exemplary damages may be
awarded only if the minor proves by clear and convincing evidence
that the harm for which he seeks recovery of exemplary damages
results from fraud, malice or gross negligence. See V.T.C.A., Civil
Practice & Remedies Code 41.003 (a) and (b). Moreover, exemplary
damages may only be awarded if the jury is unanimous, and the jury
must have been instructed as follows: You are instructed that, in order
for you to find exemplary damages, your answer to the question
regarding the amount of such damages must be unanimous. Id. at
41.003(d) and (e). Additionally, exemplary damages may not exceed
an amount equal to the greater of: (1) two times the amount of
economic damages plus the amount of noneconomic damages found
by the jury, not to exceed $750,000 or (2) $200,000. Id. at 41.008.
Finally, the statutory cap on punitive damages does not apply to cases
where the conduct complained of is described as a felony within the
statutorily prescribed list of felonies (e.g., murder, aggravated assault,
aggravated kidnapping, sexual assault) and the conduct was committed
knowingly and intentionally. Id. at 41.008(c).
314
An injury to a minor proximately caused by negligence of another gives

the minor a cause of action maintainable through parent as next friend. Fall v.
Weber, 47 S.W.2d 365 (Tex.Civ.App.Dallas 1932). A parent, as next friend, may
prosecute an action both on behalf of the minor and as plaintiff for expenses
incurred by reason of the minors injuries. Vernon's. Kennedy v. Missouri Pacific
R. Co., 778S.W.2d. 552 (Tex. App. Beaumont 1989); see also Texas Rules Civ.
Proc. Rule 44.
As a general rule, parents have the right to recover medical expenses
incurred during the childs minority since they are responsible for the medical
expenses. Kennedy v. Kennedy, 505 S.W.2d 393, 397 (Tex.Civ.App. 1974).
However, if the minor has been emancipated, she can recover her hospital and
medical expenses incurred during her minority. Id. Once a minor reaches the age
of eighteen, she may recover any medical expenses that she may in reasonable
probability incur after her eighteenth birthday. Sax v. Votteler, 648 S.W.2d 661,
667 (Tex.1983).
In cases where the parents are seeking to recover a minors medical
expenses beyond the age of majority, the parents have the burden to request
submission of future medical expenses into separate parts: future medical
expenses for the minor between the time of trial and time he or she reaches age of
majority and the future medical expenses for minor after he or she reaches such
age. Roth v. Law, 579 S.W.2d 949 (Tex. Civ. App. 1979).
Wrongful death actions for a minor are for the exclusive benefit of the
parents. See V.T.C.A., Civil Practice & Remedies Code 71.004.
I.

V.T.C.A., Civil Practice & Remedies Code 71.004 provides:
(a) An action to recover damages as provided by this
subchapter is for the exclusive benefit of the surviving
spouse, children, and parents of the deceased.
(b) The surviving spouse, children, and parents of the
deceased may bring the action or one or more of those
individuals may bring the action for the benefit of all.
(c) If none of the individuals entitled to bring an action
have begun the action within three calendar months after
the death of the injured individual, his executor or
administrator shall bring and prosecute the action unless
requested not to by all those individuals.
315
II.
While parents may not make a claim for loss of society in a personal
injury action for their minor child, parent can recover for mental anguish, loss of
companionship, and loss of society in a wrongful death action. See Gulf States
Utilities Co. v. Reed, 659 S.W.2d 849, 853 (Tex. App. 14 Dist. 1983) (finding that
the trial court properly instructed the jury on elements of damages consisting of
value of deceased son's earnings during minority, future contributions to parents
during majority, parents' loss of society, and parents' mental anguish).
1. V.T.C.A., Civil Practice & Remedies Code 71.009 Exemplary
Damages
When the death is caused by the wilful act or omission or gross
negligence of the defendant, exemplary as well as actual damages may
be recovered.
2. V.T.C.A., Civil Practice & Remedies Code 71.010 Award and
Apportionment of Damages
(a) The jury may award damages in an amount proportionate to the
injury resulting from the death.
(b) The damages awarded shall be divided, in shares as found by the
jury in its verdict, among the individuals who are entitled to recover
and who are alive at that time.
3. V.T.C.A., Civil Practice & Remedies Code 71.011 Damages Not
Subject to Debts
Damages recovered in an action under this subchapter are not subject
to the debts of the deceased.
316
UTAH
Deirdre McGlinchey
Michelle L. Miller
Cara E. Hall
McGlinchey Stafford PLLC
New Orleans, Louisiana
(504) 586-1200
A parent or guardian may bring an action for the injury of a minor child
when the injury is caused by the wrongful act or neglect of another. Utah Code
Ann. 78A-2-227.
If a parent, stepparent, adoptive parent, or legal guardian is the alleged
defendant in an action for the injury of a child, a guardian ad litem may be
appointed for the injured child. Utah Code Ann. 78A-2-227.
I.
Economic Damages
1. Damage for Loss of Time and Earnings. Injured plaintiffs are
allowed to recover damages for loss of time and earnings. Allen v.
U.S., 1984, 588 F.Supp. 247, reversed 816 F.2d 1417, certiorari denied
108 S.Ct. 694, 484 U.S. 1004, 98 L.Ed.2d 647.
2. Impairment of Future Earning Capacity. Injured plaintiffs are
allowed to recover damages for impairment of future earning capacity.
Allen v. U.S., 1984, 588 F.Supp. 247, reversed 816 F.2d 1417,
certiorari denied 108 S.Ct. 694, 484 U.S. 1004, 98 L.Ed.2d 647.
3. Expenses of Drugs, Nursing, and Medical Care. Injured plaintiffs
are allowed to recover for expenses incurred for drugs, nursing, and
medical care. Utah Code Ann. 78-11-6 and 78-11-7; Allen v. U.S.,
1984, 588 F.Supp. 247, reversed 816 F.2d 1417, certiorari denied 108
S.Ct. 694, 484 U.S. 1004, 98 L.Ed.2d 647; C.S. v. Nielson, 767 P.2d
504, 510 (Utah 1988).
4. Future Medical Costs. Future medical costs are recoverable in a
personal injury suit. Florez v. Schindler Elevator Corp., 2010 Ut.
App. 254, 240 P.3d 107.
II.
1. Pain and Suffering. Injured plaintiffs are allowed to recover general
and special damages that naturally and necessarily result from the
317
harm done, including pain and suffering. Utah Code Ann. 78-11-6,
78-11-7. Allen v. U.S., 1984, 588 F.Supp. 247, reversed 816 F.2d 1417,
The pain and suffering for which damages are recoverable in a
personal injury action include not only physical pain but also mental
pain or anguish, that is, the mental reaction to that pain and to the
possible consequences of the physical injury. Included in mental pain
and suffering is the diminished enjoyment of life, as well as the
humiliation and embarrassment resulting from permanent scars and
disability. Judd v. Rowley's Cherry Hill Orchards, Inc., 611 P.2d
1216, 1221 (Utah 1980).
2. Aggravation of Pre-existing Disease. Injured plaintiffs are allowed
to recover damages for aggravation of a preexisting disease by the
injury. Utah Code Ann. 78-11-6, 78-11-7. Allen v. U.S., 1984, 588
F.Supp. 247, reversed 816 F.2d 1417, certiorari denied 108 S.Ct. 694,
484 U.S. 1004, 98 L.Ed.2d 647.
3. Punitive Damages. Punitive damages may be awarded in exceptional
cases. Utah Code Ann. 78-11-7; Behrens v. Raleigh Hills Hosp., Inc.,
675 P.2d 1179 (Utah 1983). Punitive damages may be imposed if the
defendants conduct is willful and malicious or manifests a knowing
and reckless indifference and disregard toward the rights of others.
Johnson v. Rogers, 763 P.2d 771, 774 (Utah 1988).
III.
Jury Instructions
a. Allocation of fault.
[Name of party] claims that more than one persons fault was a cause of
the harm. If you decide that more than one person is at fault, you must
decide each person's percentage of fault that caused the harm. This
allocation must total 100%.
You may also decide to allocate a percentage to the plaintiff. [Name of
plaintiff]'s total recovery will be reduced by the percentage that you
attribute to [him]. If you decide that [name of plaintiff]'s percentage is
50% or greater, [name of plaintiff] will recover nothing.
When you answer the questions on damages, do not reduce the award by
[name of plaintiff]'s percentage. I will make that calculation later.
Model Utah Jury Instructions, Second Edition, citing Utah Code 78B-5817(2); 78B-5-818; 78B-5-820; Bishop v. GenTec, 2002 UT 36; Haase v.
318
Ashley Valley Medical Center, 2003 UT App 260; Biswell v. Duncan, 742
P.2d 80, (Utah App. 1987).
b. Economic and Non-economic Damages
I will now instruct you about damages. My instructions are given as a
guide for calculating what damages should be if you find that [name of
plaintiff] is entitled to them. However, if you decide that [name of
plaintiff] is not entitled to recover damages, then you must disregard these
instructions.
If you decide that [name of defendant]'s fault caused [name of plaintiff]'s
harm, you must decide how much money will fairly and adequately
compensate [name of plaintiff] for that harm. There are two kinds of
damages: economic and non-economic.
c. Proof of damages
To be entitled to damages, [name of plaintiff] must prove two points:
First, that damages occurred. There must be a reasonable probability, not
just speculation, that [name of plaintiff] suffered damages from [name of
defendant]'s fault.
Second, the amount of damages. The level of evidence required to prove
the amount of damages is not as high as what is required to prove the
occurrence of damages. There must still be evidence, not just speculation,
that gives a reasonable estimate of the amount of damages, but the law
does not require a mathematical certainty.
In other words, if [name plaintiff] has proved that [he] has been damaged
and has established a reasonable estimate of those damages, [name of
defendant] may not escape liability because of because of some
uncertainty in the amount of damages.
Model Utah Jury Instructions, Second Edition, citing F. Atkin Wright &
Miles v. Mountain States Telephone & Telegraph Co., et al., 709 P.2d 330,
336 (Utah 1985); Renegade Oil, Inc. v. Progressive Cas. Ins. Co., 2004
UT App 356; Sohm v Dixie Eye Center, 2007 UT App 235, 166 P.3d 614.
d. Economic damages defined.
Economic damages are the amount of money that will fairly and
adequately compensate [name of plaintiff] for measurable losses of money
or property caused by [name of defendant]'s fault.
319
Model Utah Jury Instructions, Second Edition.

e. Non-economic damages defined.
Non-economic damages are the amount of money that will fairly and
adequately compensate [name of plaintiff] for losses other than economic
losses.
Non-economic damages are not capable of being exactly measured, and
there is no fixed rule, standard or formula for them. Non-economic
damage must still be awarded even though they may be difficult to
compute. It is your duty to make this determination with calm and
reasonable judgment. The law does not require the testimony of any
witness to establish the amount of non-economic damages.
In awarding non-economic damages, among the things that you may
consider are:
the nature and extent of injuries;
the pain and suffering, both mental and physical;
the extent to which [name of plaintiff] has been prevented from
pursuing [his] ordinary affairs;
the degree and character of any disfigurement;
the extent to which [name of plaintiff] has been limited in the
enjoyment of life; and
whether the consequences of these injuries are likely to continue
and for how long.
Model Utah Jury Instructions, Second Edition, citing C.S. v. Nielson, 767
P.2d 504 (Utah 1988); Judd v. Rowleys Cherry Hill Orchards, Inc., 611
P.2d 1216 (Utah 1980).
f. Calculation of Damages
While you may not award damages based upon speculation, the law
requires only that the evidence provide a reasonable basis for assessing the
damages but does not require a mathematical certainty.
320
I will now instruct you on particular items of economic and non-economic

damages presented in this case.
Model Utah Jury Instructions, Second Edition, citing C.S. v. Nielson, 767
P.2d 504 (Utah 1988); Judd v. Rowleys Cherry Hill Orchards, Inc., 611
P.2d 1216 (Utah 1980).
g. Medical care and related expenses.
Economic damages include reasonable and necessary expenses for
medical care and other related expenses incurred in the past and those that
will probably be incurred in the future.
Model Utah Jury Instructions, Second Edition, citing Judd v. Rowleys
Cherry Hill Orchards, Inc., 611 P.2d 1216 (Utah 1980).
h. Lost earnings. [Lost earning capacity.]
Economic damages include past and future lost earnings, including lost
benefits, [and lost earning capacity].
Calculate past lost earnings from the date of the harm until the trial.
[Calculate future lost earnings from the date of trial forward.]
[Lost earning capacity is not the same as lost earnings. Lost earning
capacity means the lost potential to earn income. In determining lost
earning capacity, you should consider:
[name of plaintiff]'s actual earnings;
[his] work before and after [describe event];
what [he] was capable of earning had [he] not been injured; and
any other facts that relate to [name of plaintiff]'s employment.]
Model Utah Jury Instructions, Second Edition, citing A. Cohn v. J. C.
Penney Co., 537 P.2d 306 (Utah 1975); B. Dalebout v. Union Pacific R.
Co., 1999 UT App 151, 980 P.2d 1194, 1200 (Utah App. 1999); Corbett v.
Seamons dba Big O Tire, 904 P.2d 229, 232, N.2 (Utah App. 1995); Utah
Code Section 78B-5-824.
321
Who Owns the Right to Sue for Medical Expenses for a Minor Child? If
Parent, Does that End at Age of Majority?
Except as provided in Title 34A, Chapter 2, Workers' Compensation Act,
parent or guardian may bring an action for the injury of a minor child when the
injury is caused by the wrongful act or neglect of another. Utah Code Ann. 78A2-227. If a parent, stepparent, adoptive parent, or legal guardian is the alleged
defendant in an action for the injury of a child, a guardian ad litem may be
appointed for the injured child according to the procedures outlined in Section
78A-2-227. Utah Code Ann. 78A-2-227.
Utahs Tolling Statutes provide that a person may not bring an action
while under the age of majority or mentally incompetent without a legal guardian.
During the time the person is underage or incompetent, the statute of limitations
for a cause of action other than for the recovery of real property may not run.
Utah Code Ann. 78B-2-108.
Except as provided in Title 34A, Chapter 2, Workers' Compensation Act,
when the death of a person is caused by the wrongful act or neglect of another, his
heirs, or his personal representatives for the benefit of his heirs, may maintain an
action for damages against the person causing the death, or, if the person is
employed by another person who is responsible for his conduct, then against the
other person. Utah Code Ann. 78B-3-106.
I.
Economic Damages
1. Funeral and Medical Expenses. A parent may recover for the
wrongful death of a child such damages as funeral and medical
expenses. Jones v. Carvell, 641 P.2d 105 (Utah 1982).
2. Value of Services Rendered to Household and Childs Earnings.
Parents may recover for the lawful death of child the value of services
he might have rendered to household, and amount of money the
deceased child might have earned, if its projected income would have
exceeded cost of its maintenance and care. Utah Code Ann. 78B-3102; Jones v. Carvell, 641 P.2d 105 (Utah 1982).
II.
1. Loss of Society, Love, Companionship, Protection and Affection.
If the parent of a deceased minor child can prove the elements of the
wrongful death cause of action, the parent's recoverable damages may
include intangibles such as loss of the child's society, companionship,
322
protection, and affection. Utah Code Ann. 78B-3-102 (West);

Adkins v. Uncle Bart's, Inc., 2000 UT 14, 1 P.3d 528.
To assign a monetary value to loss of comfort, society, love,
companionship, advice, and protection, the trier of fact may consider
factors relating to the physical, emotional, and psychological
relationship between the deceased and those entitled to recover. Jones
v. Carvell, 641 P.2d 105 (Utah 1982).
2. Punitive Damages. Punitive damages may be imposed if the
defendants conduct is willful and malicious or manifests a knowing
and reckless indifference and disregard toward the rights of others.
Johnson v. Rogers, 763 P.2d 771, 774 (Utah 1988).
The wrongful death statute permits recovery of punitive damages in
appropriate cases, in view of broad statutory language which permits
recovery for nonpecuniary losses, liberal construction that has been
placed on that language, and desirability of having rule of law in
wrongful death cases consistent with general tort law. Utah Code
Ann. 78-11-7; Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179
(Utah 1983).
3. No Compensation for:
Pain and Suffering of the Deceased:
Survivors are not entitled to recover compensation for the pain and
suffering of those who are dead. Utah Code Ann. 78-11-6; 78-11-7.
Allen v. U.S., 588 F.Supp. 247 Utah 1984), reversed 816 F.2d 1417,
Investment Theory of Damages:
The cost of rearing a deceased child to the age it had obtained at the
time of death may not be considered a separate measure of damage,
but may demonstrate the nature of the psychological investment which
contributes to the loss of love. Parents are not entitled to recover the
amount and affection. Jones v. Carvell, 641 P.2d 105 (Utah 1982).
Parents Lost Opportunity Costs:
A parent is not entitled to recover the amount of money he or she
would have earned had the child not been born and had the parent
instead entered the work force. Jones v. Carvell, 641 P.2d 105 (Utah
1982).
323
4. Additional Factors to Consider: Damages in wrongful death are not

limited to the period of time during which the deceased would have
been a minor. Beaman v. Martha Washington Mining Co., 23 Utah
139, 63 P. 631, 632 (1901).
III.
Jury Instructions
a. Wrongful death claim. Minor. Factors for deciding damages.
Damages include an amount that will compensate [name of plaintiff] for
the loss suffered due to [name of decedent]'s death. Calculate the amount
based on all circumstances existing at the time of [name of decedent]'s
death that establish [name of plaintiff]'s loss, including the following:
The loss of financial support, past and future, that [name of
plaintiff] would likely have received, or been entitled to receive,
from [name of decedent] had [name of decedent] lived. This
amount should be reduced by the costs that [name of plaintiff]
would likely have incurred to support [name of decedent] had the
child survived, until the child reached 18 years of age.
The loss of love, companionship, society, comfort, care, protection
and affection which [name of plaintiff] has sustained and will
sustain in the future.
The age, health and life expectancies of [name of decedent] and
[name of plaintiff] immediately prior to the death.
The loss of inheritance from [name of decedent] [name of plaintiff]
is likely to suffer because of [name of decedent]'s death.
Any other evidence of assistance or benefit that [name of plaintiff]
would likely have received had [name of decedent] lived.
The reasonable and necessary expenses incurred by [name of
plaintiff] for [name of decedent] for any medical care because of
[circumstances causing death].
The reasonable expenses that were incurred for [name of
decedent]'s funeral and burial.
[In determining this award, you are not to consider any pain or suffering of
[name of decedent] prior to [his] death.]
324
Model Utah Jury Instructions, Second Edition, citing Utah Code Sections
78B-3-102, 78B-3-106 and 78B-3-107; Jones v. Carvell, 641 P.2d 105
(Utah 1982); In re Behm's Estate, 117 Utah 151, 213 657 (1950); Allen v.
United States, 588 F. Supp. 247 (D. Utah 1984); Platis v. United States,
288 F. Supp. 254 (D. Utah 1968), aff'd, 409 F.2d 1009 (10th Cir. 1969).
325
VERMONT
Martha C. Gaythwaite
Phillip S. Bixby
Friedman Gaythwaite Wolf & Leavitt
Portland, Maine
(207) 761-0900
I.
Damages
A minor may recover personal injury damages for any bodily injury and
any pain and suffering, disability, disfigurement, mental anguish, and loss of
enjoyment of life both past and future. Damages are also recoverable for medical
expenses, property damage, and lost earnings and earning capacity. See Vermont
Civil Jury Instruction Committee Plain English Jury Instructions 11.2 through
11.5.
II.

a. 11.2- Personal Injury Damages.
[Name of Plaintiff] is entitled to compensation for any bodily injury and
any pain and suffering, disability, disfigurement, mental anguish, and loss
of enjoyment of life experienced in the past, or probably to be experienced
[by him/her] in the future. Award these damages for any harm you find
caused by [describe event at issue]. There is no particular formula to
calculate this compensation. You should make sure that any amount
awarded to [Name of Plaintiff] is fair to the parties in this case in light of
the evidence you heard.
See Vermont Civil Jury Instruction Committee Plain English Jury
Instructions 11.2.
Who owns the right to sue for medical expenses?

Pursuant to 14 V.S.A. 2662, a parent (or guardian) has the right to
represent the child in legal actions. See also Vermont Rule of Civil Procedure
17(b). Pursuant to 14 V.S.A. 2643, settlements on behalf of minors must be
approved by the court if they exceed $1,500.00.
When a minor child is hurt by negligent act of a third party, two causes of
action potentially spring into existence, one being a right of action by the child
itself for personal injury and a second potentially being a right of action by the
parent for consequential damages cause by the injury to the child. See Trapeni v.
Walker, 120 Vt. 510, 516 (Vt. 1958). A parent may recover medical expenses
paid on behalf of the child, but a child may recover those expenses in their own
326
suit if they paid such expenses or became legally obligated to pay them. See
Verchereau v. Jameson, 122 Vt. 189, 194 (Vt. 1961).
I.
Damages
Vermonts wrongful death statute is codified in 14 V.S.A. 1492. 14

V.S.A. 1492(b) lists recoverable damages in a wrongful death action. Such
damages include damages for pecuniary injuries resulting from the death to the
next of kin. In a case where the decedent is a minor child, the term pecuniary
injuries is not limited to purely economic losses and shall also include the loss of
love and companionship of the child and for destruction of the parent-child
relationship in such amount as under all the circumstances of the case, may be
just. 14 V.S.A. 1492(b). Recoverable economic losses would include medical
and funeral expenses and lost support and services if applicable. Conscious pain
and suffering damages are also recoverable in a survival action, which is
authorized by 12 V.S.A. 557.
II.
Model Jury Instructions.
Vermonts civil jury instructions include instructions for compensating

next of kin in a wrongful death suit, and are set forth below:
a.
11.6- Wrongful Death Damages- General Instruction.
Under Vermont law, when the death of a person is caused by a wrongful

act of another person, the deceased person's next of kin can receive
compensation from the responsible person. That is the type of claim made
in this case. [Name of Plaintiff] represents the next of kin. If you find for
[Name of Plaintiff] in this case, you shall consider the following
instructions regarding damages for this claim: . . .
b.
11.7-Life Expectances- Wrongful Death.
In determining the amount to award, you need to consider how long

[Name of Decedent] would have lived during a normal life and how many
years [the next of kin] are expected to live. [If applicable: I instruct you
that the normal life expectancy for [Name of Decedent] is __. I instruct
you that the normal life expectancy for [the next of kin] is __.]
c.
11.8-Medical and Funeral Expenses- Wrongful Death. [Name
of Plaintiff] should receive compensation for medical and funeral
expenses caused by [Name of Decedent]'s injury and death.
327
d.
11.9- Lost Support and Services,- Wrongful Death.
[Name of Plaintiff] should receive compensation for the loss of [Name of

Decedent]'s income that would have benefited [the next of kin], and other
economic support and services provided by [Name of Decedent] that
would have benefited [the next of kin] to the present and in the future if
[Name of Decedent] had not died as a result of the events you heard about
at trial. When considering [Name of Decedent]s life expectancy for this
calculation, you should consider [Name of Decedent]s expected working
life.
e.
11.10- Non-Economic Damages.
[Modify as necessary due to Decedent's status as child or adult and next of

kin's status as spouse, child, or parent] [Name of Plaintiff] should receive
compensation for [the loss of love and companionship;] [care, nurture, and
protection;] [the loss of the love and companionship of a child;] and [the
loss of the parent-child relationship] that [the next of kin] would have
expected to the present and in the future if [Name of Decedent] had not
been killed as a result of the events described at trial. They also should
receive compensation for the grief and mental anguish they have suffered
to the present and probably will suffer in the future as a result of [Name of
Decedents] death. There is no exact formula to calculate this
compensation. You should make sure that any amount awarded to [Name
of Plaintiff] is fair to the parties in this case in light of the evidence you
heard. Among types of evidence you may consider are the physical,
emotional, and psychological relationship between [Name of Decedent]
and [the next of kin], the living arrangements of the family, the harmony
of family relations, and their shared interests and activities.
f.
11.11- Survival Action- Wrongful Death.
[Name of Plaintiff] represents [Name of Decedent]'s Estate and is entitled

to payment for [list as applicable]: medical expenses related to [Name of
Decedent]'s injury and death; lost wages for the period of [Name of
Decedent]'s injury; and conscious pain and suffering of [Name of
Decedent] during [his/her] injury.
See Vermont Civil Jury Instruction Committee Plain English Jury
Instructions 11.6 through 11.11.
328
VIRGINIA
Lynne J. Blain
Dannel C. Duddy
Brian R. Cannon
Richmond, Virginia
(804) 747-5200
I.
Economic Damages:
1. Property Damages Property damages are recoverable.
2. Medical and Other Related Expenses Medical and related
omission or breaches of warranty are recoverable. A plaintiffs lay
testimony alone may lay foundation for medical bills if foundations
showing the (i) bills are regular on their face and (ii) that they appear
to relate to treatment described by the plaintiff. If defendant
challenges the authenticity of the bills, then independent authentication
and proof, usually in the form of expert testimony, is required. If
defendant challenges the reasonableness of the bills, then it is a jury
issue where the defendant may present evidence against their
reasonableness. If the defendant challenges the medical necessity or
causal relationship with rebuttal testimony, then the bills need
independent authentication and proof. McMunn v. Tatum, 237 Va.
558, 569-570, 379 S.E.2d 908, 914 (1989).
3. Future Medical Expenses With evidence to support it, an award of
future medical expenses is appropriate. Virginia requires more
specificity than just testimony from a doctor of a permanent disability
to award future medical expenses. Minnix v. Hall, 267 Va. 369, 595
S.E.2d 271 (2004).
4. Collateral Source Rule Virginia does not allow collateral sources of
recovery, such as insurance, to credit against the amount of damages
owed by a defendant tortfeasor. Walthew v. Davis, 201 Va. 557, 563,
111 S.E.2d 784, 788 (1960).
5. Loss of Wages or Wage-Earning Capacity An infant who has
never worked for employment may recover damages for future lost
earnings or diminution of capacity to earn. However, statistical
averages are not enough by themselves to meet the burden of an
329
intelligent and probable estimate of the loss. Bulala v. Boyd, 239

Va. 218, 233, 389 S.E.2d 670, 678 (1990).
The evidence presented should tie into the facts and circumstances
personal to the plaintiff as an individual, not just as part of a
statistical classification of people. Id. Evidence of lost earning
capacity founded on assumptions from statistics without basis in fact
is not merely subject to refutation by cross-examination or by
counter-experts; it is inadmissible. Vasquez v. Mabini, 269 Va. 155,
161, 606 S.E.2d 809, 812 (2005).
II.
1. Pain, Suffering, and Mental Anguish Physical pain may be proven
directly or through inference based on circumstances. Wallen v. Allen,
231 Va. 289, 294, 343 S.E.2d 73, 76 (1986). Virginia recognizes
mental anguish and mental suffering as indistinguishable. Sanford
v. Ware, 191, Va. 43, 60 S.E.2d 10 (1950). Since Virginia has not
recognized loss of enjoyment of life as independently compensable,
that type of loss is best categorized as mental anguish. Bulala v. Boyd,
239 Va. 218, 389 S.E.2d 670 (1990).
2. Humiliation and Embarrassment from Disfigurement and
Deformity There needs to be direct evidence of the disfigurement or
deformity, but an inference may be made from that to the humiliation
and embarrassment. Armistead v. James, 220 Va. 171, 257 S.E.2d 767
(1979).
3. Inconvenience This is often included in the instruction for pain and
suffering, but is a separate element. A plaintiff may recover for any
prior inconvenience and any that will probably occur in the future.
Todt v. Shaw, 233 Va. 123, S.E.2d 211 (1982).
4. Punitive Damages The Supreme Court of Virginia defines punitive
damages as those imposed as punishment upon a wrongdoer who has
acted wantonly, oppressively, or recklessly, or with such negligence as
evinces a disregard for the rights of others, or criminal indifference to
civil obligations. Barker v. Marcus, 201 Va. 905, 908, 114 S.E.2d
617, 620 (1960).
In general, these damages are reserved to protect the public by serving
as a deterrent. Zedd v. Jenkins, 194 Va. 704, 707, 74 S.E.2d 791, 793
(1953). However, it is also possible to use punitive damages to
compensate the plaintiff. Stevens v. Abbott, Proctor & Paine, 288 F.
Supp. 836, 848 (E.D. Va. 1968).
330
III.
Jury Instructions
General Personal Injury and Property Damage
If you find your verdict for the plaintiff, then in determining the damages
to which he is entitled, you shall consider any of the following which you
believe by the greater weight of the evidence was caused by the
negligence of the defendant:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
any bodily injuries he sustained and their effect on his

health according to their degree and probable duration;
any physical pain [and mental anguish] he suffered in the
past [and any that he may be reasonably expected to suffer
in the future];
any disfigurement or deformity and any associated
humiliation or embarrassment;
any inconvenience caused in the past [and any that
probably will be caused in the future];
any medical expenses incurred in the past [and any that
may be reasonably expected to occur in the future];
any earnings he lost because he was unable to work at his
calling;
any loss of earnings and lessening of earning capacity, or
either, that he may reasonably be expected to sustain in the
future;
any property damage he sustained.
Your verdict shall be for such sum as will fully and fairly compensate the
plaintiff for the damages sustained as a result of the defendants
negligence.
General Punitive Damages
If you find that the plaintiff is entitled to be compensated for his damages,
and if you further believe by the greater weight of the evidence that the
defendant acted with actual malice toward the plaintiff or acted under
circumstances amounting to a willful and wanton disregard of the
plaintiffs rights, then you may also award punitive damages to the
plaintiff to punish the defendant for his actions and to serve as an example
to prevent others from acting in a similar way.
331
If you award punitive damages, you must state separately in your verdict
the amount you allow as compensatory damages and the amount you
allow as punitive damages.
Reasonable Proof
The burden is on the plaintiff to prove by the greater weight of the
evidence each item of damage he claims and to prove that each item was
caused by the defendants negligence. He is not required to prove the
exact amount of his damages, but he must show sufficient facts and
circumstances to permit you to make a reasonable estimate of each item. If
the plaintiff fails to do so, then he cannot recover for that item.
Generally in Virginia, the minor owns the causes of action for pain and
suffering, permanent injury, and damages to earning capacity. The parent or
guardian owns the cause of action for medical expenses incurred for the treatment
of the minor and any loss of services the minor may have provided.
The statute of limitations begins to run against a minor once they reach the
age of majority with a few exceptions. First, Va. Code 8.01-243(B) provides
that the statute of limitations on injury to property, including those on behalf of
minors, is five years.
The only way a minor can recover for medical expenses incurred on their
behalf is if they agreed to pay or have paid the expenses, emancipation or
incompetency of the parents, the parent waived the right, or recovery is permitted
by statute. Moses v. Akers, 203 Va. 130, 122 S.E.2d 864 (1961).
Of note, in a wrongful birth action where negligence administering a test
in utero failed to detect Tay-Sachs disease, the parents won emotional damages
because of the causal chain linking the negligent test administration to the
opportunity to reject the pregnancy to the ensuing emotional distress following
the birth. Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982). The parents
were also entitled to recover costs for the care and treatment of their child, but not
funeral expenses. Id. at 414, 290 S.E.2d at 831.
Wrongful death actions are defined by statute in Virginia. Damages
recoverable are those incurred by the statutory beneficiaries as a result of the
decedents death. Although an administrator of the decedents estate may bring a
332
wrongful death claim, there is no recovery to the estate itself or for the decedents
own pre-death or expected post-death losses, except to the extent such losses were
relied upon by the statutory beneficiaries as described below.
I.
Who May Recover

The statutory beneficiaries are listed in Va. Code 8.01-53(A):
The damages awarded pursuant to 8.01-52 shall be distributed as
specified under 8.01-54 to (i) the surviving spouse, children of
the deceased and children of any deceased child of the deceased or
(ii) if there be none such, then to the parents, brothers and sisters of
the deceased, and to any other relative who is primarily dependent
on the decedent for support or services and is also a member of the
same household as the decedent or (iii) if the decedent has left both
surviving spouse and parent or parents, but no child or grandchild,
the award shall be distributed to the surviving spouse and such
parent or parents or (iv) if there are survivors under clause (i) or
clause (iii), the award shall be distributed to those beneficiaries and
to any other relative who is primarily dependent on the decedent
for support or services and is also a member of the same household
as the decedent or (v) if no survivors exist under clause (i), (ii),
(iii), or (iv), the award shall be distributed in the course of descents
as provided for in 64.1-1. Provided, however, no parent whose
parental rights and responsibilities have been terminated by a court
of competent jurisdiction or pursuant to a permanent entrustment
agreement with a child welfare agency shall be eligible as a
beneficiary under this section. For purposes of this section, a
relative is any person related to the decedent by blood, marriage, or
adoption and also includes a stepchild of the decedent.
II.
Damages Recoverable
Va. Code 8.01-52 sets forth the damages recoverable by beneficiaries in

a wrongful death action, including a minor wrongful death action:
8.01-52. Amount of damages.
The jury or the court, as the case may be, in any such action under
8.01-50 may award such damages as to it may seem fair and just.
The verdict or judgment of the court trying the case without a jury
shall include, but may not be limited to, damages for the following:
1. Sorrow, mental anguish, and solace which may include society,
companionship, comfort, guidance, kindly offices and advice of
the decedent;
333
2. Compensation for reasonably expected loss of (i) income of the

decedent and (ii) services, protection, care and assistance provided
by the decedent;
3. Expenses for the care, treatment and hospitalization of the
decedent incident to the injury resulting in death;
4. Reasonable funeral expenses; and
5. Punitive damages may be recovered for willful or wanton
conduct, or such recklessness as evinces a conscious disregard for
the safety of others.
The jury has wide latitude in determining awards for elements one and two
above. Matthews v. Hicks, 197 Va. 112, 118, 87 S.E.2d 629, 633 (1955).
The statute above provides for punitive damages in wrongful death
actions. However, the Eastern District of Virginia has ruled that if the defendant
also died, then punitive damages are prohibited. Tarbrake v. Sharp, 894 F.Supp.
270 (E.D. Va. 1995).
III.
Jury Instructions
Damages: Death by Wrongful Act
If you find your verdict for the plaintiff, then in determining the damages
to which he is entitled, you shall include, but are not limited to, any of the
following which you believe by the greater weight of the evidence were
caused by the negligence of the defendant as damages suffered by the
beneficiaries:
(1)
(2)
(3)
(4)
(5)
any sorrow, mental anguish, and loss of solace suffered by

the beneficiaries. Solace may include society,
companionship, comfort, guidance, kindly offices, and
advice of the decedent;
any reasonably expected loss in income of the decedent
suffered by the beneficiaries;
any reasonably expected loss of services, protection, care,
and assistance which the decedent provided to the
beneficiaries;
any expenses for the care treatment, and hospitalization of
the decedent incident to the injury resulting in his death;
and
reasonable funeral expenses.
334
If you award damages under paragraphs (1), (2), and (3) above, you may
distribute these damages among [between] (name of spouse, children, and
children of any deceased child of decedent) or (names of surviving
statutory beneficiaries).
If you award damages under (4) and (5) above, you shall specifically state
the amount of damages for each.
Governing Statutes: Va. Code Ann. 8.01-52 to 8.01-54.
Punitive Damages: Death by Wrongful Act
If you find your verdict for the plaintiff, and if you believe by the greater
weight of the evidence that the defendants conduct was willful or wanton,
or was so reckless as to evince a conscious disregard for the safety of
others, then you may also award punitive damages to the plaintiff to
punish the defendant for his conduct and to prevent others from acting in a
similar way.
If you award punitive damages, you must state separately in your verdict
the amount you allow as punitive damages, and you may distribute these
damages among [between] (names of spouse, children, and children of any
deceased child of decedent) or (names of surviving statutory
beneficiaries).
Governing Statutes: Va. Code Ann. 8.01-52.
335
WASHINGTON
Kate Stimeling
James Rapore
Schiff Hardin LLP
San Francisco, California
(415) 901-8700
I.
Economic Damages:
1. Medical Expenses. Plaintiffs may recover medical expenses incurred
as a result of the defendants negligence. Medical expenses include
the reasonable value of necessary medical care, treatment, and services
received, for the past, present, and future. 6 WASH. PRAC., WASH.
PATTERN JURY INSTR. CIV. WPI 30.07.01-.02 (5th ed.).
2. Property Damages. Damages to real and personal property are
recoverable. Thompson v. King Feed & Nutrition Serv., Inc., 105 P.3d
378, 383 (Wash. 2005).
3. Loss of Wages or Wage-Earning Capacity. Loss of wages and
wage-earning capacity are recoverable expenses. Kelley v. Great N.
Ry. Co., 371 P.2d 528, 530 (Wash. 1962).
II.
1. Pain and Suffering and Emotional Distress. A plaintiff may recover
for pain and suffering and emotional distress as a result of his or her
own physical injuries. Fahndrich v. Williams, 194 P.3d 1005, 1007
(2008).
2. Disfigurement. Plaintiffs may recover for disfigurement under
Washington Law. WASH. REV. CODE ANN. 4.56.250 (West 2011)
(defining noneconomic damages to include disfigurement)4; 6 WASH.
PATTERN JURY INSTR. CIV. WPI 30.05 (5th ed.).
3. Disability. Plaintiffs may recover for disability, which includes not
only the inability to work but also impairment of the ability to lead a
normal life. 6 WASH. PRAC., WASH. PATTERN JURY INSTR. CIV. WPI
30.05 (5th ed.).
4. Loss and Loss of Enjoyment of Life. Plaintiffs may recover for the
loss of enjoyment of life. Id.
5. Punitive Damages.
Punitive damages are not recoverable in
Washington. The Washington Supreme Court has held that punitive
A portion of Section 4.56.250, unrelated to whether plaintiffs may recover for disfigurement, was
held unconstitutional in v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989).
336
damages are contrary to public policy. Dailey v. N. Coast Life Ins.

Co., 919 P.2d 589, 590 (Wash. 1996).
6. Emotional Distress Caused by Witnessing an Injury. To recover
for emotional distress stemming from witnessing an injury to another,
the plaintiff must witness the victim's injuries at the scene of an
accident shortly after it occurs and before there is a material change in
the attendant circumstances. Colbert v. Moomba Sports, Inc., 176
P.3d 497, 503 (Wash. 2008). Additionally, the plaintiff must
demonstrate objective symptoms of emotional injury. Id.
III.
Jury Instruction:
Measure of Economic and Noneconomic DamagesPersonal
InjuryNo Contributory Negligence WPI 30.01.01 (5th ed.).
It is the duty of the court to instruct you as to the measure of
damages. [By instructing you on damages the court does not mean to
suggest for which party your verdict should be rendered.
If your verdict is for the plaintiff, then] you must determine the
amount of money that will reasonably and fairly compensate the
plaintiff for such damages as you find were proximately caused by the
negligence of the defendant.
[If you find for the plaintiff] [your verdict must include the following
undisputed items:
(Here insert undisputed past economic damage amounts)
In addition] you should consider the following past economic damages
elements:
(Here insert appropriate elements from among phrases 30.07.01,
30.08.01, 30.09.01, and 30.10 through 30.16)
In addition you should consider the following future economic
damages elements:
(Here insert appropriate elements from among phrases 30.07.02,
30.08.02, and 30.09.02)
In addition you should consider the following noneconomic damages
elements:
(Here insert appropriate elements from among phrases 30.04 through
30.06)
337
The burden of proving damages rests upon the plaintiff. It is for you to
determine, based upon the evidence, whether any particular element
has been proved by a preponderance of the evidence.
Your award must be based upon evidence and not upon speculation,
guess, or conjecture.
The law has not furnished us with any fixed standards by which to
measure noneconomic damages. With reference to these matters you
must be governed by your own judgment, by the evidence in the case,
and by these instructions.
Both parents and children may sue for medical expenses. Under Revised
Code of Washington Section 4.24.010, parents who have regularly contributed to
the support of their minor child may maintain or join as a party an action as
plaintiff for the injury or death of the child WASH. REV. CODE ANN. 4.24.010
(West 2012). Because this statute only creates one cause of action, a jury may
award damages to each parent separately if they are not married. Id. As part of
this action, the parents may seek medical expenses incurred on behalf of the child.
Id.; Schurk v. Christensen 497 P.2d 937 (Wash. 1972). The parents and child may
not both recover for the same medical expenses. Harbeson v. Parke-Davis, Inc.,
656 P.2d 483, 495 (Wash. 1983).
Damages Recoverable in a Minor Wrongful Death Claim and a Minor
Survivor Action
I.
The personal representative of a decedent may bring a wrongful death

claim on behalf of relatives of the decedent. WASH. REV. CODE ANN.
4.20.010, 4.20.020 (West 2011).
II.
The measure of damages in a wrongful death action is the actual

pecuniary loss suffered by the surviving beneficiaries from the death of a
relative. Parrish v. Jones, 722 P.2d 878, 881 (Wash. Ct. App.1986). Pecuniary
loss includes not only the monetary contributions that the beneficiary would have
received from the decedent had the decedent lived but also includes losses such as
the loss of the decedent's support, services, love, affection, care, companionship,
society, and consortium. Id.; 16 WASH. PRAC., TORT LAW AND PRACTICE 6.5
(3d ed.).
However, recovery is not permitted for the mental anguish and grief and
sorrow of the survivors. 16 WASH. PRAC., TORT LAW AND PRACTICE 6.5 (3d
338
ed.); Pearson v. Picht, 52 P.2d 314, 316 (Wash. 1935); Pancratz v. Turon, 473
P.2d 409, 413 n. 5 (1970) (Wash. Ct. App.1970) (approving the following
wrongful death jury instruction: [i]n determining pecuniary loss you are not to
consider grief or sorrow of the survivors.). Additionally, because wrongful death
recovery is for the losses of the beneficiary, recovery for the decedents pain
and suffering is not recoverable. 16 WASH. PRAC., TORT LAW AND 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 under
Revised Code of Washington Section 4.24.010. Parents bringing a Section
4.24.010 action can recover for the mental anguish they incurred as a result of the
death of the child. Wilson v. Lund, 491 P.2d 1287, 1288 (Wash. 1971).
Additionally, parents may recover for the following economic damages: medical,
hospital, medication expenses, and the loss of services and support. Id. They
may also recover for the following noneconomic damages: loss of love and
companionship of the child and injury to or destruction of the parent-child
relationship. Id.
III.
Survivor Action Damages
A survivor action allows the personal representative of a decedents estate

to bring an action for injuries suffered by the decedent. WASH. REV. CODE ANN.
RCWA 4.20.046, 4.20.060 (West 2011). The general survivor statute RCWA
4.20.046. preserves all causes of action that the decedent could have brought had
he or she survived. Rentz v. Spokane County, 438 F. Supp. 2d 1252, 1258 (E.D.
Wash. 2006). The statute also compensates the decedents estate for what the
decedent would have accumulated if the decedent had survived to life
expectancy. Wagner v. Flightcraft, Inc., 568, 643 P.2d 906, 912 (Wash. Ct. App.
1982). In addition to recovery for lost earnings of the estate, recovery is available
for damages available in a garden variety tort action. Chapple v. Ganger, 851
F. Supp. 1481, 1486 (E.D. Wash. 1994). These damages include: medical and
hospital expenses, funeral expenses, property damage, pain and suffering if
measurable time ensued between the injury and death, and fear experienced by the
decedent prior to his or her death. Id.
IV.

a. Measure of DamagesWrongful DeathAction for Benefit of
Spouse / State Registered Domestic Partner WPI 31.02.01 (5th ed.)
It is the duty of the court to instruct you as to the measure of damages on
plaintiff's claim for losses suffered by (name of spouse / state registered
domestic partner). [By instructing you on damages, the court does not
mean to suggest for which party your verdict should be rendered.
If your verdict is for the plaintiff, then] you must determine the amount of
money that will reasonably and fairly compensate (name of spouse / state
339
registered domestic partner) for such damages as you find were

proximately caused by the death of (name of decedent) .
undisputed items:
[Here insert undisputed items and amounts]
[In addition] you should consider the following items:
(1) Economic Damages:
(a) [You should consider as past economic damages any benefit of value,
including money, goods, and services that (name of spouse / state
registered domestic partner) would have received from (name of decedent)
up to the present time if (name of decedent) had lived.]
(b) You should [also] consider as future economic damages what benefits
of value, including money, goods, and services (name of decedent) would
have contributed to (name of spouse / state registered domestic partner) in
the future had (name of decedent) lived.
(2) Noneconomic Damages:
You should also consider what (name of decedent) reasonably would have
been expected to contribute to (name of spouse / state registered domestic
partner) in the way of [marital] [domestic partner] consortium. [Marital
consortium means the fellowship of husband and wife and the right of
one spouse to the company, cooperation, and aid of the other in the
matrimonial relationship. It includes emotional support, love, affection,
care, services, companionship, including sexual companionship, as well as
assistance from one spouse to the other.] [Domestic partner consortium
means the fellowship of state registered domestic partners and the right of
one domestic partner to the company, cooperation, and aid of the other in
the domestic partnership. It includes emotional support, love, affection,
care, services, companionship, including sexual companionship, as well as
assistance from one domestic partner to the other.]
In making your determinations, you should take into account (name of
decedents) age, health, life expectancy, occupation, and habits [of
industry, responsibility and thrift]. You should also take into account
(name of decedent's) earning capacity, including (name of decedents)
actual earnings prior to death and the earnings that reasonably would have
been expected to be earned by (name of decedent) in the future. In
determining the amount that (name of decedent) reasonably would have
been expected to contribute in the future to (name of spouse / state
registered domestic partner), you should also take into account the amount
340
you find (name of decedent) customarily contributed to (name of spouse /

state registered domestic partner).
determine, based upon the evidence, whether any particular element has
been proved by a preponderance of the evidence.
Your award must be based upon evidence and not upon speculation, guess,
or conjecture.
measure noneconomic damages. With reference to these matters you must
be governed by your own judgment, by the evidence in the case, and by
these instructions.
b. Wrongful Death Actions Brought by Parent for Death of Child
WPI 31.06.01 (5th ed.)
It is the duty of the court to instruct you as to the measure of damages [on
plaintiffs' claim for personal losses suffered by (names of parents)]. [By
instructing you on damages, the court does not mean to suggest for which
party your verdict should be rendered.
If your verdict is for the plaintiffs, then] you must determine the amount of
money that will reasonably and fairly compensate (names of parents) for
such damages as you find were proximately caused by the negligence of
the defendant.
[If you find for the plaintiffs] [your verdict must include the following
undisputed items:
[here insert undisputed items and amounts]
1. Economic Damages
(a) [The reasonable value of necessary medical care, treatment, and
services received by (name of child).]
(b) [The reasonable value of (name of child's) funeral and burial
expenses.]
(c) [The economic value of services and support (name of child)
reasonably would have been expected to contribute to (name of
parents) from the date of (name of child's) injury [until [he]
[she] would have attained the age of majority], less the cost to
341
(name of parents) of (name of child's) support and maintenance

[during that interval].]
2. Noneconomic Damages
(a) [The loss of love and the destruction of the parent-child
relationship between (name of child) and (name of parents),
including the grief, mental anguish, and suffering of (name of
parents) as a result of (name of child's) death.]
(b) [The loss of companionship, including mutual society and
protection, of (name of child) to (name of parents).]
In making your determinations, you should take into account (name of
child's) age, health, life expectancy, character, and habits, as well as (name
of parents') station in life.
or conjecture.
these instructions.
c. Measure of DamagesSurvival ActionStatutory Beneficiaries
WPI 31.01.01 (5th ed.)
It is the duty of the court to instruct you as to the measure of damages on
the plaintiff's claim for personal losses suffered by (name of decedent).
[By instructing you on damages, the court does not mean to suggest for
which party your verdict should be rendered.
If your verdict is for the plaintiff, then] you must determine the amount of
money that will reasonably and fairly compensate (name of decedent's)
estate for such damages as you find were proximately caused by the
negligence of the defendant.
undisputed items:
[here insert undisputed items and amounts]
342
[1. Economic damages:]

[(a)] [1.] The health care and funeral expenses that were reasonably and
necessarily incurred.
[(b)] [2.] The net accumulations lost to [his] [her] estate. In determining
the net accumulations, you should take into account (name of decedent's)
age, health, life expectancy, occupation, and habits of industry,
responsibility, and thrift. You should also take into account (name of
decedent's) earning capacity, including [his] [her] actual earnings prior to
death and the earnings that reasonably would have been expected to be
earned by [him] [her] in the future, including any pension benefits.
Further, you should take into account the amount you find that (name of
decedent) reasonably would have consumed as personal expenses [or
reasonably would have contributed to (names of beneficiaries) during
[his] [her] lifetime] and deduct this from [his] [her] expected future
earnings to determine the net accumulations.
[2. Noneconomic damages:]
[3. The pain, suffering, anxiety, emotional distress, humiliation, and fear
experienced by [him] [her] prior to [his] [her] death as a result of
(describe event).]
or conjecture.
these instructions.
343
WASHINGTON, D.C.
James H. Rotondo
Michael P. Pohorylo
Day Pitney LLP
Hartford, Connecticut
(860) 275-0100
I.
Economic Damages:
1. Medical Expenses: Plaintiffs damages for past medical expenses are
recoverable and should include the value of all reasonably necessary
medical and hospital services furnished to the plaintiff. Green v.
United States Postal Service, 589 F. Supp. 2d 58, 68 (D.D.C. 2008)
(citing Albano v. Yee, 219 A.2d 567, 568 (D.C. 1966)).
2. Loss of Past and Future Earnings: Loss of future earnings; see
District of Columbia v. Barriteau, 399 A.2d 563, 567, 567 n.6 (D.C.
1979); and past earnings; see Bernard v. Calkins, 624 A.2d 1217, 1220
(D.C. 1993); are recoverable.
3. Property Damage: Damage to property is recoverable pursuant to
13.01 of the Standardized Civil Jury Instructions for the District of
Columbia. See also Gebremdhin v. Avis-Rent-A-Car System, Inc., 689
A.2d 1202, 1202 (D.C. 1997).
II.
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 defendants negligence, or if the
plaintiff is physically endangered as a result of the defendants
negligence. District of Columbia v. McNeill, 613 A.2d 940, 942-43
(D.C. 1992).
2. Disfigurement: Disfigurement and embarrassment resulting from
disfigurement are recoverable. See Sowell v. Walker, 755 A.2d 438,
447 (D.C. 2000).
3. Past and Future Inconvenience: Inconvenience is recoverable
pursuant to 13.01 of the Standardized Civil Jury Instructions for the
District of Columbia.
4. Pain and Suffering: Pain and suffering is recoverable and, in some
instances, direct proof is not required where the law can infer pain and
344
suffering from a personal injury. See Jones v. Miller, 290 A.2d 587,
591 (D.C. 1972). See also Cunningham v. Conner, 309 A.2d 500, 501
(D.C. 1973) (lack of award for pain and suffering held to be
permissible where minor plaintiff sustained a sub-concussion of the
head and laceration of the right eyebrow, requiring sutures, but where
there was no permanent injury).
5. Punitive Damages: Punitive damages are recoverable only when the
plaintiff can prove, by a preponderance of the evidence, that the
defendant committed a tortious act, and by clear and convincing
evidence that the act was accompanied by conduct and a state of mind
evincing malice or its equivalent. Jonathan Woodner Co. v. Breeden,
665 A.2d 929, 938 (D.C. 1995).
6. Loss of Services: Loss of services is not recoverable. Parker v.
Martin, 905 A.2d 756, 764 (D.C. 2006) (loss of services of a minor
child are not recoverable in any cause of action)
7. There is no cap on noneconomic awards in the District of Columbia.
See Long v. Sears Roebuck & Co., 877 F. Supp. 8, 11 (D.D.C. 1995)
(There is no difference between the law of negligence and strict
liability in Maryland and in the District of Columbia, except for a cap
that Maryland law places on noneconomic damages; such damages
include pain, suffering, inconvenience, physical impairment,
disfigurement, loss of consortium, or other nonpecuniary injury.)
III.
Jury Instruction
The Standardized Civil Jury Instructions for the District of

Columbia provides several model jury instructions for personal injury
actions. Although they are not tailored specifically for personal injury
actions involving a minor, they do cover all the relevant damages and
discuss a parents right to recover damages for money spent on caring for
an injured child.
a.
Section 13.01. Standardized Civil Jury Instructions for the

District of Columbia:
If you find in favor of [the plaintiff], then you should consider

whether [he] [she] is entitled to any damages. You may award
damages for any of the following items that you find the
defendant's [negligence] proximately caused:
1. the extent and duration of any physical injuries sustained
by the plaintiff;
2. the effects that any physical injuries have on the overall
physical and emotional well-being of the plaintiff;
345
3. any physical pain and emotional distress that the plaintiff

has suffered in the past;
4. any physical pain and emotional distress that the plaintiff
may suffer in the future;
5. any disfigurement or deformity suffered by the plaintiff,
as well as any humiliation or embarrassment associated
with the disfigurement or deformity;
6. any inconvenience the plaintiff has experienced;
7. any inconvenience the plaintiff may experience in the
future;
8. any medical expenses incurred by the plaintiff;
9. any medical expenses that the plaintiff may incur in the
future;
10. any loss of earnings incurred by the plaintiff;
11. any loss of earnings or earning capacity that the
plaintiff may incur in the future; and
12. any damage or loss to plaintiff's personal property.
Any damages you might award for physical injury or physical
sickness may not be taxable. Any damages that you might award
for emotional distress and for all other types of harm may be
taxable.
b.

If you determine that [the plaintiff] is entitled to a damage award

for medical expenses incurred, then you should consider the
reasonable value of all medical services given to the plaintiff.
These medical services can include examinations, tests, and care
by physicians and surgeons, services of nurses and attendants,
hospital accommodations and care, ambulance services,
medications, and any other services which were actually given and
reasonably required for [the plaintiff's] treatment.
c.

You may award [the plaintiff] an amount that will reasonably and
adequately compensate [him] [her] for any loss of earnings which
346
[he] [she] is reasonably certain to suffer in the future. In

determining this amount, you are allowed to consider several
factors:
(1) [the plaintiff's] age, sex, health, physical and/or mental
ability and earning capacity before the injury;
(2) [the plaintiff's] likely future earnings for the remaining
working life, if the injury had not occurred, reduced to
present value;
(3) [the plaintiff's] decreased earning capacity as a result of
the injury;
(4) [the plaintiff's] likely future earnings for the remaining
working life, taking into account the injury and how long it
may affect both earnings and working life, reduced to
present value; and
(5) the effects of inflation when estimating [the plaintiff's]
future earnings.
d.
Emotional Distress, Section 13.09. Standardized Civil

Jury Instructions for the District of Columbia:
[The plaintiff] is seeking damages for emotional distress. You

may award damages for emotional distress if:
(1) the defendant's negligence caused a physical injury to
the plaintiff, or
(2) the plaintiff was in the zone of danger and the
defendant's negligence caused the plaintiff to fear for [his]
[her] own safety, or
(3) the defendant's negligence endangered the plaintiff.
If the plaintiff suffered no physical injury, then you may award the
plaintiff damages for emotional distress only if the emotional
distress is serious and verifiable.
e.
Parents Past and Future Damages, Section 13.11.

Standardized Civil Jury Instructions for the District of
Columbia:
If a minor child was injured through the defendant's negligence

and the child is entitled to receive damages from the defendant,
then the child's parents also are entitled to receive damages for
347
their past and future expenses in connection with the child's

injuries until the child reaches legal age.
Thus, the child's parents are entitled to receive damages to cover
their hospital and other medical expenses, as well as other
incidental expenses involved in caring for the child's injuries.
parent, does not end at the age of majority when it becomes childs claim?
Under D.C. law, an injured minor owns the right to sue for medical
expenses; see, e.g., D.C. Code 13-302 (three-year statute of limitations for
personal injury actions stayed until injured minor reaches the age of 18).
However, there does not appear to be either a specific case or ordinance that
addresses this issue. As noted in the model jury instructions, however, parents
may receive damages for their past and future expenses in connection with their
childs injuries, until the child reaches legal age, as part of the childs personal
injury action. This suggests that the child owns the right to sue but parents may
still recover the expenses they incur as a result of the childs injuries. The D.C.
Court of Appeals has also suggested that a parent has an independent cause of
action for medical expenses and loss of an injured childs earnings. See National
City Development Co. v. McFerran, 55 A.2d 342, 343 (D.C. 1947) ([A] parent
who seeks as guardian ad litem of his minor child to recover for loss of time or
earnings of the minor, or for medical services incurred on behalf of the latter, is
variously held to have waived or relinquished to the minor his rights in this
respect, or to have emancipated the minor, or to have estopped himself from
thereafter recovering for these items in a suit in his own name. In the numerous
cases so holding, recovery on these accounts has generally been permitted in the
suit brought on behalf of the minor.).
The purpose of the District of Columbias Wrongful Death Act is to
provide a remedy whereby close relatives of the deceased, who might naturally
have expected maintenance or assistance from the deceased had he lived, may
recover compensation from the wrongdoer commensurate with the loss
sustained. Cole, Raywid & Braverman v. Quadrangle Development Corp., 444
A.2d 969, 971 n.7 (D.C. 1982).
I.
Economic Damages:
1.
Loss of Financial Support: Loss of financial support is

recoverable. See District of Columbia v. Hawkins, 782 A.2d 293,
303 (D.C. 2001); District of Columbia, 808 A.2d 776, 778, 778 n.2
(D.C. 2002) (decedents mother elected to forgo allowable
pecuniary losses, except damages for funeral and burial expenses).
After determining the amount of a decedents likely future
348
earnings and contributions to support the parents, the award is

reduced by the costs the decedents parents would have expended
in raising the decedent to eighteen years of age. See Standardized
Civil Jury Instructions for the District of Columbia 14.05;
Rankin v. Shayne Brothers, Inc., 234 F.2d 35, 36 (D.C. Cir. 1956)
(noting that the trial judge correctly instructed the jury that, in
event defendant was liable, the plaintiff was entitled to recover
the value of the childs services during the childs minority, that is,
until the child reaches 21 years of age, had the child lived, and
such further sum as a parent might properly have received from the
deceased if the deceased had lived, less the cost that would have
been incurred in bringing up the child).
2.
II.
Medical and Burial expenses: The District of Columbias

Wrongful Death Act provides that a plaintiff may recover for
medical and burial expenses. See D.C. Code 16-2701
1. Punitive Damages: Punitive damages are recoverable in some
instances. See District of Columbia v. Jackson, 810 A.2d 388, 396-97
(D.C. 2002) (punitive damages not permitted because no reasonable
juror could have found by the more stringent proof requirement of
clear and convincing evidence that police officers shot decedent with
an evil motive or actual malice); Grossman v. United States, 1990 U.S.
Dist. LEXIS 20932, at * 42 (D.D.C. Nov. 2, 1990) (plaintiffs
decedent was denied punitive damages under the District of Columbia
Wrongful Death Act because punitive damages are not available under
the Federal Tort Claims Act as decedent committed suicide on the
grounds of defendants federal veterans administration medical center
due to the staff's negligence in failing to properly diagnose, monitor
and treat plaintiffs decedent for depression).
2. Pain and Suffering: Pain and suffering experienced by the decedent
are recoverable. See Doe v. Binker, 492 A.2d 857, 861 (D.C. 1985).
3. Loss of Parent-Child Consortium: Loss of parent-child consortium is
not recoverable. District of Columbia v. Howell, 607 A.2d 501, 506
(D.C. 1992); Parker v. Martin, 905 A.2d 756, 764 (D.C. 2006) (loss of
services of a minor child are not recoverable in any cause of action).
4. Mental Suffering, Grief and Anguish: Mental suffering, grief and
anguish are not recoverable under the Wrongful Death Act. See
Saunders v. Air Florida, Inc., 558 F. Supp. 1233, 1235 (D.D.C. 1983)
(applying D.C. law).
349
III.
Jury Instruction:
The amount to be awarded under the Wrongful Death Act is the
financial loss suffered by the . . . next of kin of [the deceased] who
are the beneficiaries under this Act. . . . The next of kin of the
deceased are [names].
The Wrongful Death Act does not permit you to, and you must not,
award the beneficiaries any amount for the sorrow, mental distress
or grief, or for the loss of love and affection that they may have
suffered because of [the deceased's] death.
The amount you do award to the beneficiaries should be more than
mere nominal damages. In deciding upon any damages which will
reasonably and adequately compensate the beneficiaries for the
death of [the deceased], you should first consider the financial loss
each beneficiary has suffered. Consider the financial support [the
deceased] furnished or could have been expected to provide to
each beneficiary. Consider, also, any gifts and other contributions
which [the deceased] could have reasonably been expected to
provide to each beneficiary had [the deceased] not died. In
determining the amount each of the beneficiaries could have been
expected to receive, you may consider the earnings and earning
capacity of [the deceased] and the probable joint life expectancy of
[the deceased] with each of the beneficiaries. Joint life expectancy
means the time during which [the deceased] and each of the
beneficiaries would both have been alive. You may also consider
the age, health, occupation, station of life of the parties and any
other fact which may guide you.
You should also set a dollar amount on the reasonable value of
any services that the deceased would have provided to each
beneficiary over their joint life expectancies.
In this case, [the minor deceased] died while a minor, that is,
before reaching age 18. The earnings of a minor during [his] [her]
minority belong to [his] [her] parents. You must, therefore,
consider any amounts [the minor deceased] might have reasonably
been expected to earn during [his] [her] minority. You must also
consider the possibility that [he] [she] might have made
contributions toward the support of [his] [her] parents and next of
kin even after [he] [she] turned 18 years old.
350
After you have decided the amounts of [the decedent's] likely

future earnings and contributions to support the parents, you must
then subtract the costs that [his] [her] parents [or guardians] would
have expended in raising [him] [her] to age 18.
With regard to all of these losses, you must consider the effect of
inflation on living expenses and wage earnings.
The amount that you calculate as the net financial loss must then
be discounted to present cash value. This means that you must
determine a lump sum payment which could compensate each
beneficiary for his or her future financial losses suffered as a result
of [the deceased]'s death.
Here is how you make that calculation. For each beneficiary, you
must figure the amount, which if invested at a particular rate of
interest today over the number of years [the decedent] would have
been expected to live, would return an amount equal to the net
financial loss to that beneficiary.
To any lump sum payment for a beneficiary, you should also add
the actual amounts which that beneficiary paid towards the
expenses of the decedent's last illness. These expenses would
include any medical, nursing and hospital bills and funeral
expenses, and any other expenses of [the deceased].
Any award you make under the Wrongful Death Act should be
apportioned among each of the beneficiaries; that is, your verdict
should state the amount each beneficiary is to receive.
351
WEST VIRGINIA
Carol P. Smith
Frost Brown Todd LLC
Charleston, West Virginia
304-345-0111
Personal injury to a minor child gives rise to two causes of action: 1) an
action on behalf of the child for pain and suffering, permanent injury, and
impairment of earning capacity after majority; and 2) an action by the parent for
consequential damages including the loss of services and earnings during minority
and expenses incurred for necessary medical treatment for the child's injuries.
State ex rel. Packard v. Perry, 221 W.Va. 526, 655 S.E.2d, 548, 556 (2007).
I.
Damages
1. Past Damages. Past compensatory damages, including reasonable and
necessary medical bills, lost wages, pain and suffering, mental
anguish, loss of household services and others are recoverable when
proven by a preponderance of evidence. See generally, State ex rel.
Packard v. Perry, 221 W.Va. 526, 655 S.E.2d, 548 (2007); Jordan v.
Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).
2. Future Damages. Future damages are awarded for, among other
things: 1) residuals or future effects of an injury which have reduced
the capacity of an individual to function as a whole man; 2) future pain
and suffering; 3) loss or impairment of earning capacity; and, 4) future
medical expenses. Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618
(1974). A child who has never been gainfully employed may recover
damages for impairment of future earning capacity if such damages are
"proved to a reasonable degree of certainty." Id.
3. Loss of filial consortium. While West Virginia law allows a parent of
a minor child the opportunity to recover economic losses arising out of
a child's injuries, West Virginia courts have not yet addressed whether
a parent can recover non-economic consortium losses for a child's
injuries. See, Losh v. Teton Transp., Inc., Slip Opinion, 2010 WL
5343216 (S.D.W.Va. 2010).
4. Punitive Damages. In actions of tort, where gross fraud, malice,
oppression, or wanton, willful, or reckless conduct or criminal
indifference to civil obligations affecting the rights of others appear,
the jury may assess exemplary, punitive, or vindictive damages; these
terms being synonymous. Crawford v. Snyder, --S.E.2d---, 2011 WL
352
5842814 (W.Va. 2011), citing Mayer v. Frobe, 40 W.Va. 246, 22 S.E.

58 (1895).
5. Interest. An award of prejudgment interest on special or liquidated
damages is mandated by statute. W.Va. Code 56-6-31. Special
damages include lost wages and income, medical expenses, damages
to tangible personal property and similar out-of-pocket expenditures,
as determined by the court. Id.
II.
Model Jury Instruction for West Virginia
West Virginia does not have model jury instructions. As of this writing
(02/12), Chief Justice Menis Ketchum is working on proposed model jury
instructions.
Who "owns" the right to sue for medical expenses? Parent or child? If
parent, does that end at the age of majority when it becomes child's claim?
Both. "The right to maintain an action to recover pre-majority medical
expenses incurred as a result of a minor's personal injuries belongs to both the
minor and the minor's parents, but under no circumstances will double recovery
be allowed." State ex rel. Packard v. Perry, 221 W.Va. 526, 655 S.E.2d 548
(2007).
The right to maintain an action for Wrongful Death is provided by W.Va.
Code 55-7-5. The Legislature has enlarged the damages recoverable under W.Va.
Code 55-7-6 to permit juries to award damages that the deceased might have
recovered had he or she survived the inquiry and brought the action, in addition to
the damages resulting from the wrongful death. McDavid v. U.S., 213 W.Va.592,
584 S.E.2d 226 (2003).
I.
Damages
1. Statutory Damages. The verdict of the jury shall include, but may
not be limited to, damages for the following:
(A) Sorrow, mental anguish, and solace which may include society,
companionship, comfort, guidance, kindly offices and advice of the
decedent;
(B) compensation for reasonably expected loss of (i) income of the
decedent, and (ii) services, protection, care and assistance provided by
the decedent;
(C) expenses for the care, treatment and hospitalization of the decedent
incident to the injury resulting in death; and
353
(D) reasonable funeral expenses.

W.Va. Code 55-7-6( c)(1).
A jury's verdict may include damages for the decedent's pain and
suffering endured between the time of injury and the time of death
where evidence of conscious pain and suffering of the decedent prior
to death is shown. W.Va. Code 55-7-8; McDavid v. U.S., 213
W.Va.592, 584 S.E.2d 226 (2003).
2. Punitive Damages. In the appropriate case, punitive damages are
recoverable in actions for wrongful death. Bond v. City of Huntington,
166 W.Va. 581, 276 S.E.2d 539 (1981).
3. Unborn Child. An action may be maintained by the personal
representative of a viable unborn child for the wrongful death of such
child caused by injuries sustained by it while in the womb of its
mother resulting from the negligence of the defendant and, upon
sufficient proof, such damages as may be recoverable under the statute
may be awarded in such action. Baldwin v. Butcher, 155 W.Va. 431,
184 S.E.2d 428 (1971).
II.
West Virginia does not have model jury instructions. As of this writing
(02/12), Chief Justice Menis Ketchum is working on proposed model jury
instructions.
354
WISCONSIN
John S. Monical
Chicago, Illinois
(312) 372-1947
Damages Recoverable in a Minors Personal Injury
I.
Economic Damages:
1. Medical Expenses. Parent may recover hospital, medical, and dental
expenses incurred or that will continue to be incurred in the future for
the care and treatment of the minor. WIS JI-CIVIL 1840.
2. Childs Lost Services and Earnings. The parent may recover for the
injured minors earnings and the reasonable value of the services
which the minor child was capable of rendering to the parent until the
child reaches the age of 18. WIS JI-CIVIL 1835.
3. Caretaking Expenses. The reasonable cost of additional home and
personal nursing care and services rendered and to be rendered in the
future to a minor because of the injuries sustained is recoverable. WIS
JI-CIVIL 1845.
4. Loss of past and future earning capacity. If the minor has incurred
lost future earnings capacity, including lost earnings caused by delay
in graduating from school, the jury can award reasonable
compensation for loss of earning capacity. WIS JI-CIVIL 1750.2,
1760; See Michaels v. Green Giant Co., 164 N.W.2d 217 (Wis. 1969);
Webster v. Krembs, 282 N.W. 564 (Wis. 1938).
II.
1. Disability and/or disfigurement. This includes any physical pain,
worry, distress, embarrassment, and humiliation that the minor child
suffered in the past and is reasonably certain to suffer in the future.
WIS JI-CIVIL 1750.2; Noll v. Rural Mut. Ins. Co., 516 N.W.2d 21
(Wis. Ct. App. 1994).
2. Pain and Suffering. Pain and suffering, suffered in the past and
reasonably certain to be suffered in the future as a result of the injury
are fully recoverable. WIS JI-CIVIL 1750.2; Coryell v. Conn, 276
N.W.2d 723 (Wis. 1979); Hargrove v. Peterson, 221 N.W.2d 875
(Wis. 1974). Factors considered include the nature of the injury, the
effect produced by the injury in the past and expected effect in the
future, and the plaintiffs age, prior mental and physical conditions,
355
and the probable duration of the minors life. WIS JI-Civil 1750.2;
Lutz v. Shelby Mut. Ins. Co., 235 N.W.2d 426 (Wis. 1975); Dolittle v.
Western States Mut. Ins. Co., 128 N.W.2d 403 (Wis. 1964). In
determining an award for pain and suffering, a jury may consider the
impairment to plaintiffs ability to enjoy the normal activities,
pleasures, and benefits of life. WIS JI-CIVIL 1750.2.
3. Severe Emotional Distress. If the minor suffers severe emotional
distress as a result of the incident and the incident was a substantial
factor in producing the emotional distress, damages for severe
emotional distress may be recoverable. WIS JI-CIVIL 1770.
4. Punitive Damages. Punitive damages may be recoverable in an
appropriate case under either negligence or strict product liability.
WIS JI-CIVIL 1707.1, 1707.2; see Wangen v. Ford Motor Co., 294
N.W.2d 437 (Wis. 1980). Factors to consider when awarding punitive
damages include the grievousness of the act, the degree of malicious
intention of the defendant or the recklessness of the defendants
conduct, the potential and actual damages of the act, and the
defendants ability to pay such damages. WIS JI-CIVIL 1707.1; see
Strenke v. Hogner, 694 N.W.2d 296 (Wis. 2005); Sharp v. Case Corp.,
595 N.W.2d 380 (Wis. 1999).
III.

a. Injury To Minor Child: Parents' Damages For Medical
Expenses: Past And Future 1840 WIS JI-CIVIL
Subdivision __ of question _ asks what sums will reasonably compensate
(plaintiff) for hospital, medical, and dental expenses incurred for the care
and treatment of (his) (her) minor (son) (daughter).
Under the law, parents are liable for the reasonable expenses necessarily
incurred in the care and treatment of their minor children.
You will carefully consider the credible evidence, and reasonable
inferences therefrom, bearing on this inquiry and in answer name such
sum as will fairly and reasonably compensate (plaintiff) for such hospital,
medical, and dental expenses as (he) (she) necessarily incurred for the care
of (minor child) in the treatment of the injuries sustained by (minor child)
as a natural and direct result of this (collision) (accident). If you find that
such expenses will continue to be incurred in the future by (plaintiff), you
should allow, and include in your award, an amount which will fairly and
reasonably compensate (plaintiff) for such medical, hospital, and dental
expenses as (plaintiff) will necessarily incur for the care of (minor child)
in the treatment of the injuries sustained by (him) (her) as a natural result
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of the (collision) (accident), during the period of (his) (her) minority, up to

but not beyond the time (he) (she) will have reached (his) (her) 18th
birthday.
b. Injury To Child: Parents' Damages For Services Rendered To
Child: Past And Future 1845 WIS JI-CIVIL
Subdivision _ of question _ asks what sum will reasonably compensate
(name) for additional home and personal nursing care and services
rendered to (his) (her) minor (son) (daughter) because of the injuries
sustained in this (collision) (accident).
You will carefully consider the credible evidence, and reasonable
inferences therefrom, bearing on this inquiry and in answer name such
sum as will fairly and reasonably compensate (_____) for such additional
home and nursing care and services as the parents necessarily furnished
and rendered to their minor (son) (daughter) in the care and treatment of
the injuries sustained by (him) (her) as a natural result of this (collision)
(accident).
The amount you will allow for such services, however, will not exceed an
amount (_____) would have been compelled to pay others to render such
or similar services.
If you find that such nursing care and services will continue to be incurred
in the future, you may allow, and include in your award, an amount which
will fairly and reasonably compensate (________) for such home nursing
care and services as the parents will necessarily render and furnish to their
minor (son) (daughter) in the care and treatment of the injuries sustained
by (him) (her) as a natural result of this (collision) (accident), during the
period of (his) (her) minority, up to but not beyond the time (he) (she) will
have reached (his) (her) 18th birthday. Such sum shall not exceed the
amount (____) would be compelled to pay others to render such or similar
services.
c. Injury To Minor Child: Parent's Damages For Loss Of Child's
Earnings And Services: Past And Future 1835 WIS JI-CIVIL
Question __ asks you to determine [(parent)s'] [(parent)'s] loss of (child)'s
services resulting from the injuries sustained by (child). The (parents)
(parent) of an injured minor child (are) (is) entitled to the earnings and to
the reasonable value of the services which the minor child was capable of
rendering to the (parents) (parent) until the child reaches the age of 18.
You should award such sum as will reasonably compensate (parents)
(parent) for any loss of income as you are satisfied (minor child) was
357
reasonably capable of earning and for the loss of the reasonable value of
the services to which (parents) (parent) were entitled during the period of
(minor child)'s disability, to date, resulting from injuries received in (the
accident).
If you find that (minor child)'s disability will continue in the future as a
natural result of the injuries sustained in (this accident), you should allow
(parents) (parent), and include in your award, an amount which will fairly
and reasonably compensate (them) (him) (her) for any loss of income
(minor child) would have been reasonably capable of earning and for the
reasonable value of the services which (minor child) would have rendered
to (parents) (parent), except for the disability, until (minor child)'s 18th
birthday.
While the plaintiff has the burden of establishing loss of future earning
capacity, the evidence relating to this item need not be as exact or precise
as evidence needed to support your findings as to other items of damage.
The reason for this rule is that the concept of (loss of future earning
capacity) requires that you consider factors which, by their very nature, do
not admit of any precise or fixed rule. You therefore, are not required in
determining the loss of future earning capacity to base your answer on
evidence which is exact or precise but rather upon evidence which, under
all of the circumstances of the case, reasonably supports your
determination of damages.
d. Injury To Minor Child: Parent's Loss Of Society And
Companionship 1837 WIS JI-CIVIL
Question __ asks you to determine (the parent)'s loss of society and
companionship resulting from injuries sustained by (child).
Society and companionship includes the love, affection, care, and
protection the parent would have received from (his) (her) child had the
child not been injured. It does not include the loss of monetary support
from the child or the grief or mental suffering caused by the child's injury.
In determining (parent)'s loss of society and companionship, you should
consider the age of the (child) and the age of the parent; the past
relationship between the child and the parent; the love, affection, and
conduct of each toward the other; the society and companionship that had
been given to the parent by the child; and the personality, disposition, and
character of the child and the parent.
The amount inserted by you should reasonably compensate the parent for
any loss of society and companionship (he) (she) has sustained since the
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injury to (his) (her) child and the amount you are reasonably certain (he)
(she) will sustain in the future.
If you find that (minor child)'s disability (injuries) will continue in the
future as a natural result of the injury and that (parent) will sustain a loss
of the child's society and companionship in the future, you should include
in your award the sum that will fairly and reasonably compensate (parent)
for this future loss but only until the injured child reaches (his) (her) 18th
birthday.
e. Personal Injuries: Future Medical And Health Care Expenses
1758 WIS JI-CIVIL
(Question ______ ) (Subdivision __ of question _____ ) asks what sum of
money will fairly and reasonably compensate (plaintiff) for future medical
and other health care related expenses.
If you are satisfied that (plaintiff) will require health care or treatment in
the future for injuries sustained as a result of the accident, you will insert
as your answer to this question the sum of money you find will reasonably
and necessarily be expended in the future for that care or treatment.
f. Personal Injuries: Future Loss Of Earning Capacity 1762 WIS JICIVIL
(Question _) (Subdivision ___ of question___) asks what sum of money
will fairly and reasonably compensate (plaintiff) for future loss of earning
capacity.
If you are satisfied that (plaintiff) has suffered a loss of future earning
capacity as a result of the injuries sustained in the accident, your answer to
this question will be the difference between what (plaintiff) will
reasonably be able to earn in the future in view of the injuries sustained
and what (he) (she) would have been able to earn had (he) (she) not been
injured.
While the plaintiff has the burden of establishing loss of future earning
capacity, the evidence relating to this item need not be as exact or precise
as evidence needed to support your findings as to other items of damage.
The reason for this rule is that the concept of (loss of future earning
capacity) requires that you consider factors which, by their very nature, do
not admit of any precise or fixed rule. You, therefore, are not required in
determining the loss of future earning capacity to base your answer on
evidence which is exact or precise but rather upon evidence which, under
all of the circumstances of the case, reasonably supports your
determination of damages.
359
g. Personal Injuries: Past And Future Pain, Suffering, And Disability

(Disfigurement) 1768 WIS JI-CIVIL
(Question __) (Subdivision __ of question __ ) asks what sum of money
will fairly and reasonably compensate (plaintiff) for any pain, suffering,
(and) disability, (and disfigurement) (he) (she) sustained as a result of the
accident.
Your answer to this question should be the amount of money that will
fairly and reasonably compensate (plaintiff) for the pain, suffering, (and)
disability, (and disfigurement) (he) (she) has suffered to date and is
reasonably certain to suffer in the future as a result of the accident.
Pain, suffering, (and) disability, (and disfigurement) includes any physical
pain, worry, distress, embarrassment, and humiliation which (plaintiff) has
suffered in the past and is reasonably certain to suffer in the future.
You should also consider to what extent (his) (her) injuries have impaired
and will impair (his) (her) ability to enjoy the normal activities, pleasures,
and benefits of life.
Finally, consider the nature of (plaintiff)'s injuries, the effect produced by
(plaintiff)'s injuries in the past, and the effect the injuries are reasonably
certain to produce in the future bearing in mind (plaintiff)'s age, prior
mental and physical condition, and the probable duration of (his) (her) life.
h. Personal Injuries: Severe Emotional Distress 1770 WIS JI-CIVIL
(Plaintiff) claims that (he) (she) suffered severe emotional distress (in
addition to the physical injuries (he) (she) sustained) as a result of the
(accident) (incident) in question.
If you are satisfied that (plaintiff) suffered severe emotional distress and
that the (accident) (incident) was a substantial factor in producing it, you
should include in your award a fair and reasonable allowance for the
severe emotional distress. If you are not satisfied, make no allowance for
the severe emotional distress and confine your award to fair and
reasonable compensation only for any other damages (resulting from
personal injuries) to (plaintiff) which was caused by the (accident)
(incident).
i. Punitive Damages: Nonproducts 1707.1 WIS JI-CIVIL
Punitive damages may be awarded, in addition to compensatory damages,
if you find that the defendant acted maliciously toward the plaintiff or in
an intentional disregard of the rights of the plaintiff. A person's acts are
360
malicious when they are the result of hatred, ill will, desire for revenge, or
inflicted under circumstances where insult or injury is intended. A person
acts in an intentional disregard of the rights of the plaintiff if the person
acts with the purpose to disregard the plaintiff's rights, or is aware that his
or her acts are substantially certain to result in the plaintiff's rights being
disregarded. Before you can find an intentional disregard of the rights of
the plaintiff, you must be satisfied that the defendant's act or course of
conduct was:
(1) deliberate;
(2) an actual disregard of the plaintiff's right to safety, health, or
life, a property right, or some other right; and
(3) sufficiently aggravated to warrant punishment by punitive
damages.
A defendant's conduct giving rise to punitive damages need not be
directed at the plaintiff seeking punitive damages. There is no requirement
that (defendant) intended to cause harm or injury to (plaintiff). The
purpose of punitive damages is to punish a wrongdoer or deter the
wrongdoer and others from engaging in similar conduct in the future.
Punitive damages are not awarded to compensate the plaintiff for any loss
he or she has sustained. A plaintiff is not entitled to punitive damages as a
matter of right. Even if you find that the defendant acted maliciously.
If you answered the preceding question "yes," answer this question:
What sum, if any, do you award against (defendant) as punitive damages?
Answer: $ _____
j. Punitive Damages: Products Liability 1707.2 WIS JI-CIVIL
Punitive damages may be awarded, in addition to compensatory damages,
if you find that the defendant acted maliciously toward the plaintiff or in
an intentional disregard of the rights of the plaintiff. A person's acts are
malicious when they are the result of hatred, ill will, desire for revenge, or
inflicted under circumstances where insult or injury is intended. A person
acts in an intentional disregard of the rights of the plaintiff if the person
acts with the purpose to disregard the plaintiff's rights, or is aware that his
or her acts are substantially certain to result in the plaintiff's rights being
disregarded. Before you can find an intentional disregard of the rights of
the plaintiff, you must be satisfied that the defendant's act or course of
conduct was:
(1) deliberate;
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(2) an actual disregard of the plaintiff's right to safety, health, or

life, a property right, or some other right; and
(3) sufficiently aggravated to warrant punishment by punitive
damages.
A defendant's conduct giving rise to punitive damages need not be
directed at the plaintiff seeking punitive damages. There is no requirement
that the defendant intended to cause harm or injury to the plaintiff.
The purpose of punitive damages is to punish a wrongdoer or deter the
wrongdoer and others from engaging in similar conduct in the future.
Punitive damages are not awarded to compensate the plaintiff for any loss
he or she has sustained. A plaintiff is not entitled to punitive damages as a
matter of right. Even if you find that the defendant acted maliciously or in
an intentional disregard of the plaintiffs rights, you do not have to award
punitive damages. Punitive damages may be awarded or withheld at your
discretion. You may not, however, award punitive damages unless you
have awarded compensatory damages. If you determine that punitive
damages should be awarded, you may then award such sum as will
accomplish the purpose of punishing or deterring wrongful conduct.
Factors you should consider in answering question __ include:
1. the seriousness of the hazard to the public;
2. the profitability of the misconduct;
3. the attitude and conduct on discovery of the misconduct;
4. the degree of the manufacturer's awareness of the hazard and of
its excessiveness;
5. the employees involved in causing or concealing the
misconduct;
6. the duration of both the improper behavior and its concealment;
7. the financial condition of the manufacturer and the probable
effect on the manufacturer of a particular judgment; and
8. the total punishment the manufacturer will probably receive
from other sources.
SPECIAL VERDICT
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If you answered "yes" to question _, answer this question:

Did (defendant) act maliciously toward (plaintiff) or in an
intentional disregard of the rights of (plaintiff)?
Answer: -----Yes or No
k. Personal Injuries: Past And Future: One Verdict Question
(Except Past Loss Of Earnings And Past Medical Expenses) 1750.2
WIS JI-CIVIL
Question __ asks what sum of money will fairly and reasonably
compensate (plaintiff) for any personal injuries (he) (she) sustained as a
result of the accident. Your answer to this question should be the amount
of money that will fairly and reasonably compensate (plaintiff) for the
personal injuries (he) (she) has suffered to date and is reasonably certain to
suffer in the future as a result of the accident.
Personal injuries include pain, suffering, and disability (disfigurement)
which means any physical pain, worry, distress, embarrassment and
humiliation which (plaintiff) has suffered in the past and is reasonably
certain to suffer in the future. You should consider also to what extent
(his) (her) injuries have impaired and will impair (his) (her) ability to
enjoy the normal activities, pleasures, and benefits of life. Consider the
nature of (plaintiff)'s injuries, the effect produced by (plaintiff)'s injuries in
the past, and the effect the injuries are reasonably certain to produce in the
future, bearing in mind (plaintiff)'s age, prior mental and physical
condition, and the probable duration of (his) (her) life.
Personal injuries can also include any loss of future earning capacity
suffered by (plaintiff). If you are satisfied that (plaintiff) has suffered a
loss of future earning capacity as a result of the injuries sustained in the
accident, your answer to this question should include the difference
between what (plaintiff) will reasonably be able to earn in the future in
view of the injuries sustained and what (he) (she) would have been able to
earn had (he) (she) not been injured.
Personal injuries can also include health care and treatment expenses. If
you are satisfied that (plaintiff) will require health care and treatment in
the future for injuries sustained as a result of the accident, include in your
answer to this question the sum of money that will reasonably and
necessarily be expended in the future for that care and treatment.
363
Wisconsin recognizes two separate causes of action when a minor is
injured the minors and the minors parents. The minors cause of action is for
physical and personal injuries, whereas the parents cause of action is for the
invasion of the parents interests, including (1) past, present, and future medical
expenses, including home and personal nursing care and services; (2) loss of
childs society and companionship; (3) pecuniary support; (4) punitive damages;
and (5) loss of childs earnings and services (past and future) that the child was
capable of rendering to the parent(s) until the child reaches the age of 18. Wis.
Stat. 895.03; Webster v. Krembs, 282 N.W. 564 (Wis. 1938); Wangen v. Ford
Motor Co., 294 N.W.2d 437 (Wis. 1980); Korth v. American Family Inc. Co., 340
N.W.2d 494 (Wis. 1983); Herman v. Milwaukee Childrens Hosp., 361 N.W.2d
297 (Wis. Ct. App. 1984); WIS JI-CIVIL 1707.1. Under the law, parents are
liable for the reasonable expenses necessarily incurred in the care and treatment of
their minor children. Therefore, in addition to the minors right to sue for medical
and hospital expenses in the minors personal injury suit, the parent also can sue
for the costs of the minor childs treatment of the injuries as the result of the
accident during the period of the childs minority, up to but not beyond the time
the child reaches majority (18 years of age). West v. Day, 212 N.W. 648 (1927);
WIS JI-CIVIL 1840.
Awards of pecuniary losses are recoverable by any person entitled to bring
an action for wrongful death. Wis. Stat. 895.04(4). However, Section 895.03 of
the Wisconsin Statutes limits the bringing of actions to cases in which, if death
had not ensued, the injured person would have been entitled to maintain an action.
Wis. Stat. 895.03; See Tesar v. Anderson, 789 N.W.2d 351 (Wis. Ct. App. 2010)
(a viable fetus is a person for the purpose of the wrongful death statute and the
fetus parents thus may bring a wrongful death action against automobile driver
whose negligence cause a viable fetus to be stillborn).
I.
Economic Damages:
1. Pecuniary Losses. Pecuniary loss, recoverable in wrongful death
actions by statute, is defined as financial loss. Wis. Stat. 895.03,
895.04.
2. Medical, Funeral, and Cemetery Lot Expenses. Medical, funeral,
and the reasonable cost of a cemetery lot are recoverable. Wis. Stat.
895.04(5); See Gustafson v. Bertschinger, 108 N.W.2d 273 (Wis.
1961).
364
3. Lost Wages and Services. Parents can claim the loss of wages and
services they would have received from the child during the childs
minority had the child lived. This loss is measured by the value of the
wrongfully killed minor childs probable wages and services to the
time of majority less the costs the parents probably would have
incurred in raising the child to age 18. Prunty v. Schwantes, 162
N.W.2d 34 (Wis. 1968). The fact that a child would or would not have
turned over his wages to the parents or would or would not have
performed the services is irrelevant for recovery. Peot v. Ferraro, 266
N.W.2d 586 (Wis. 1978). See also WIS JI-CIVIL 1890.
II.
1. Loss of Society and Companionship. If the decedent is a minor, an
award for loss of society and companionship may be awarded to
parents or siblings of the deceased, but this amount cannot exceed
$500,000 per occurrence. Wis. Stat. 895.04(4); See Peiot v. Ferraro,
266 N.W.2d 586 (Wis. 1978) (limitation on recovery for loss of
society and companionship is not a measure of damages; it is a limit
on recovery). Loss of society and companionship includes the love,
affection, care, protection, and guidance WIS JI-CIVIL 1895; See
Cameron v. Union Auto Ins. Co., 246 N.W.420, 423 (Wis. 1933);
Berghauer v. Heyl (In re Estate of Berghauer), 2001 Wis. App. LEXIS
1156 (Wis. Ct. App. 2001).
2. Mental Pain and Suffering. Grief or injury to feeling of the parent is
not recoverable under a wrongful death suit. Similarly, the suffering
experienced by the minor child before death is not recoverable under a
wrongful death suit, only under a survivorship claim. Klann v. Minn,
154 N.W. 966 (Wis. 1915) (decedents estate is entitled to recovery for
the conscious pain and suffering experienced by the deceased from the
time of the injury up until the time of death).
3. Punitive Damages. Punitive damages are not recoverable under the
Wisconsin Wrongful Death Statute, Wis. Stat. 895.04, but are
recoverable in a survival action. Wis. Stat. 895.01 see Wangen v.
Ford Motor Co., 294 N.W.2d 437 (Wis. 1980).
III.

a. Damages: Death Of Minor Child: Premajority Pecuniary Loss
1890 WIS JI-CIVIL
(Plaintiffs), as parents of (child), claim loss of wages and services they
would have received from (child) during (child)'s minority had (he) (she)
continued to live. Although parents are responsible for the cost of
365
providing for the care and maintenance of their child until the child
reaches age 18, they are entitled to the value of the wages and services that
their child was reasonably capable of (earning) (providing to the parents)
until (he) (she) reached age 18. If you find that the value of these wages
or services would have exceeded the costs (parents) would have incurred
in raising (child) to age 18, you should insert the difference in answer to
question _.
While the plaintiff has the burden of establishing pecuniary loss, the
evidence relating to this item need not be as exact or precise as evidence
needed to support your findings as to other items of damage. The reason
for this rule is that the concept of pecuniary loss requires that you consider
factors which, by their very nature, do not admit of any precise or fixed
rule. You, therefore, are not required in determining the pecuniary loss to
base your answer on evidence which is exact or precise but rather upon
evidence which, under all of the circumstances of the case, reasonably
supports your determination of damages.
b. Damages: Death Of Minor Child: Postmajority Pecuniary Loss
1892 WIS JI-CIVIL
(Plaintiffs), as parents of (child), claim loss of pecuniary benefits they
would have received from (child) after (child) reached age 18 had (he)
(she) continued to live. If you determine that (parents) would have
received pecuniary benefits from (child) after (he) (she) reached age 18,
you should insert the amount in answer to question _. (Pecuniary benefits
means gifts, assistance, and support that can be valued in money.)
In determining whether (parents) would have received pecuniary benefits,
you should consider (parent)s' age, health, employment and earnings, and
the degree to which they were dependent upon (child). You should also
consider the (child)'s age, health, employment, earnings, amounts
contributed in the past, if any, and the relationship between (child) and
(parents).
(Give WIS JI-Civil 1796 on computation of present value.)
While the plaintiff has the burden of establishing pecuniary loss, the
evidence relating to this item need not be as exact or precise as evidence
needed to support your findings as to other items of damage. The reason
for this rule is that the concept of pecuniary loss requires that you consider
factors which, by their very nature, do not admit of any precise or fixed
rule.
You, therefore, are not required in determining the pecuniary loss to base
your answer on evidence which is exact or precise but rather upon
366
evidence which, under all of the circumstances of the case, reasonably

supports your determination of damages.
c. Death Of Child: Parent's Loss Of Society And Companionship
1895 WIS JI-CIVIL
Question _ asks you to determine [(the parent)s'] [(parent)'s] loss of
society and companionship resulting from the death of (child). Society
and companionship includes the love, affection, care, and protection the
(parents) (parent) would have received from (their) (his ) (her) child had
(he) (she) continued to live. It does not include the loss of monetary
support from the child or the grief and mental suffering caused by the
childs death.
In determining [(parent)s'] [(parent)'s] loss of society and companionship,
you should consider the age of the deceased child and the ages of the
(parents) (parent); the past relationship between the child and the (parents)
(parent); the love, affection, and conduct of each toward the other; the
society and companionship that had been given to the (parents) (parent) by
the child; and the personality, disposition, and character of the child. The
amount inserted by you should reasonably compensate the (parents)
(parent) for any loss of society and companionship (they) (he) (she) (have)
(has) sustained since the death of (child) and the amount you are
reasonably certain (they) (he) (she) will sustain in the future.
Although the law provides that a party cannot recover more than
($350,000) ($500,000) for the loss of a childs society and companionship,
this dollar limit is not a measure of damage; it is a limit on recovery.
Therefore, you should determine the amount that you believe will
reasonably compensate (parents) (parent) for any loss of society and
companionship (they) (he) (she) (have) (has) suffered.
367
WYOMING
John W. Grund
Joan S. Allgaier
Grund Dagner, P.C.
Denver, Colorado
(303) 830-7770
I.
Economic Damages
2. Medical Expenses. Medical expenses incurred on behalf of the minor
are recoverable and may be recovered by the parents. See Little v.
Kobos, 877 P.2d 752 (Wyo. 1994); Thunder Hawk v. Union P.R.R.,
844 P.2d 1045 (Wyo. 1992); Blakeman v. Gopp, 364 P.2d 986 (Wyo.
1961).
3. Lost Earnings During the Age of Minority. Ordinarily the earnings
of minor children belong to the parents. Kreigh v. Cogswell, 21 P.2d
831 (Wyo. 1933).
4. Lost Future Earnings. Any earnings reasonably certain to be lost in
the future are recoverable. Little v. Kobos, 877 P.2d 752 (Wyo. 1994)
(evidence in medical-malpractice action supported instruction for lost
future earnings to child, where vocational-rehabilitation expert
testified about child's physical limitations and economist testified
about economic consequences of childs disability).
5. Prejudgment Interest. Wyoming does not generally allow recovery
of prejudgment interest except on liquidated sums. See, e.g., Wells
Fargo Bank Wyo., N.A. v. Hodder, 2006 WY 128, 144 P.3d 401 (Wyo.
2006).
II.
Noneconomic Damages
1. Pain and Suffering. Minor plaintiff may recover for the physical and
mental pain and suffering experienced as a result of injuries and that
are reasonably certain to be experienced in the future. Little v. Kobos,
877 P.2d 752 (Wyo. 1994). The amount to be assessed for pain and
suffering is within the discretion of the trier of fact. Blakeman v.
Gopp, 364 P.2d 986 (Wyo. 1961).
368
2. Loss of Enjoyment of Life. The award for this specific element

should not duplicate the award given for any other element of
damages. See Little v. Kobos, 877 P.2d 752 (Wyo. 1994).
3. No Recovery for Loss of Companionship. A parent may not recover
for the loss of a childs companionship. Gates v. Richardson, 719 P.2d
193, 201 (Wyo. 1986).
4. Scars and Disfigurement. The amount to be assessed for damages
suffered by the plaintiff by reason of her scars and disfigurement is
within the discretion of the trier of fact. Blakeman v. Gopp, 364 P.2d
986 (Wyo. 1961).
5. Permanent Impairment and Disability. Damages for permanent
impairment and disability are recoverable if they are proven. See Little
v. Kobos, 877 P.2d 752 (Wyo. 1994). When a physician provides
evidence as to the permanency of an injury, the conclusion must be
shown to be more probably true than not true. Blakeman v. Gopp, 364
P.2d 986 (Wyo. 1961).
6. Punitive Damages. Punitive damages have been approved in
circumstances involving outrageous conduct, such as intentional torts,
torts involving malice and torts involving willful and wanton
misconduct. Cramer v. Powder River Coal, LLC, 204 P.3d 974 (Wyo.
2009).
III.

a. Measure of Damages Personal Injury Wyoming Civil Pattern Jury
Instructions 4.01
[Regardless of how you decide on the question of liability][If you decide
for the Plaintiff on the question of liability][If you find that the Plaintiff is
50% or less at fault], you must fix the amount of money that will
reasonably and fairly compensate the Plaintiff for those elements of
damage proved by the evidence, taking into consideration the nature,
extent, and duration of the injury.
The claimed elements of damage are:
1.
The pain, suffering, and emotional distress experienced as a
result of the injuries [and those reasonably probable to be
experienced in the future;
2.
Disability and/or disfigurement;

369
3.
Loss of enjoyment of life and any loss of enjoyment of life
reasonably probable to be experienced in the future. The award for
this specific element should not duplicate the award given or any
other element of damage;
4.
Loss of Earnings and Earning Capacity. The value of time,
earnings, profits, salaries lost to this date, and the present cash
value of any earnings reasonably probable to be lost in the future,
taking into consideration any lost earning capacity of the plaintiff;
5.
Medical expenses. The reasonable expense of necessary
medical care, treatment, and services received to date and any
medical expense reasonably probable to be incurred in the future;
6.
Caretaking. The reasonable expense of necessary help in
the home that has been required as a result of the injury and any
such help that is reasonably probable to be required in the future.
Whether any of these elements have been proved is for you to determine.
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 childs claim?
Parents claim for medical expenses is derivative of childs claim.
Thunder Hawk v. Union Pac. R. Co., 844 P.2d 1045 (Wyo. 1992). The parents
claim for medical expenses arising because of a tortious injury to their minor
child is not required to be joined in a single action with the minors 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.
I.
Economic Damages:
1. Loss of Child Services, Loss of Support, Medical and Funeral
Expenses. Pecuniary damages are recoverable. W.S.A. 1-38-102.
In Coliseum Motor Co. v. Hester, 3 P.2d 105 (Wyo. 1931), the
Wyoming Supreme Court held that fair and just damages included
losses of a pecuniary nature, such as the loss of the childs services
during minority; loss of support or services that the child was under no
obligation to render, if the circumstances show that the services would
probably be rendered; and attendant medical and funeral expenses.
370
The statute does not limit the amount of recovery under the wrongfuldeath statute.
2. Investment. The investment of the money spent in birth and
rearing of children is not a proper measure of damages under the
wrongful-death statute. Danculovich v. Brown, 593 P.2d 187, 196
(Wyo. 1979).
II.
1. Future Companionship, Society and Comfort, and Mental
Anguish of Survivors. Damages for loss of probable future
companionship, society and comfort are recoverable. W.S.A. 1-38102. On the other hand, damages for mental suffering or anguish of
the survivors of the decedent are excluded as an element of damages
under the statute. Coliseum Motor Co. v. Hester, 3 P.2d 105 (Wyo.
1931).
2. Emotional Distress. However, emotional distress damages may now
be recovered apart from a wrongful-death claim under theories of
intentional or negligent infliction of emotional distress. R.D. v. W.H.,
875 P.2d 26, 31 (Wyo. 1994).
3. Punitive Damages. Punitive damages are recoverable. W.S.A. 138-102.
III.

a. Measure of Damages Wrongful Death Wyoming Civil Pattern Jury
Instructions 6.02
If you find for the Plaintiff on the question of liability, you shall determine
[without regard to any percentage you have allocated as to the loss of
chance claim] the amount of damages, if any, sustained by [each] [the]
claimant, taking into account the nature, extent, and duration of each of
the following:
1. The amount each such claimant has failed or will fail to receive
from the decedents earnings, as explained in the following
instruction;
2. The loss of probable future companionship, society and
comfort, which shall not include any damages for claimants
mental anguish; and
371
3. Any other monetary loss sustained and proved by any of the

claimants resulting from the death of the decedent, including
funeral expenses and other proper charges.
There is no formula that the court can give you for the
determination of damages for loss of probable future companionship,
society, and comfort. However, this amount may not include damages for
mental anguish and/or suffering. It is not necessary that any witness shall
have expressed any opinion as to the dollar amount of damages. Your
award, if any, should be such sum as will fairly and adequately
compensate the claimants. The amount awarded, if any, rests within your
sound discretion, and it is up to you to determine taking into consideration
all the evidence in this case and from your knowledge, observation, and
experience in life. Your award, if any, should be for what damages are
reasonable and just.
372
CANADA
Lindsay Lorimer
McMillan LLP5
Toronto, Ontario
(416) 865-7000
I.
Economic Damages:
2. Medical and Other Related Expenses. Canada has a comprehensive
system of public health care administered by provincial health
authorities. Provincial statutes authorize subrogated claims by these
bodies to recover health care costs attributable to the tortious conduct
of third parties.6 The health authorities can recover from at-fault
parties (and their insurers) the cost of any publicly-insured health
services provided up to the time of settlement or judgment. The
authorities may also recoup the cost of future health care services that
an injured person may need as a result of the tortious conduct. These
subrogated claims must generally be addressed as part of any
settlement. In some provinces, legislation prohibits a liability insurer
from settling any personal injury claim without advance notice to the
public health authority so that the authoritys subrogated claim can be
properly addressed.7 Most provinces, however, bar their authority
from launching subrogated claims in motor vehicle accident cases
where the injured health-plan beneficiary is insured.8 Past and future
medical costs not covered by a provinces health insurance program,
I would like to thank Simon Kupi, Articling Student at McMillan LLP, for his assistance in the
preparation of this overview.
6
See Ontario Health Insurance Act, R.S.O. 1990, c. H.6, s. 30; British Columbia Health Care
Costs Recovery Act, S.B.C. 2008, c. 27, s. 7; Alberta Hospitals Act, R.S.A. 2000, c. H-12, s. 62;
Saskatchewan Department of Health Act, R.S.S. 1978, c. D-17, s. 19(3); The Health Services
Insurance Act (Manitoba), C.C.S.M., c. H-35, s. 98.2(1); Quebec Health Insurance Act, R.S.Q., c.
A-29, s. 18; New Brunswick Health Services Act, R.S.N.B. 1973, c. H-3, s. 5(3); Nova Scotia
Health Services and Insurance Act, R.S.N.S. 1989, c. 197, s. 18(3); Prince Edward Island Health
Services Payment Act, R.S.P.E.I. 1988, c. H-2, s. 22(4); Newfoundland Medical Care Insurance
Act, S.N.L. 1999, c. M-5.1, s. 19(3); Yukon Health Care Insurance Plan Act, R.S.Y. 2002, c. 107,
s. 9; Northwest Territories Hospital Insurance and Health and Social Services Administration Act,
R.S.N.W.T. 1988, c. T-3, s. 19; Nunavut Hospital Insurance and Health and Social Services
Administration Act, R.S.N.W.T. (Nu) 1988, c. T-3, s. 19.
7
See e.g. Ontario Health Insurance Act, R.S.O. 1990, c. H.6, s. 35; Saskatchewan Department of
Health Act, R.S.S. s. 19(6); P.E.I. Health Care Costs Recovery Act, R.S.P.E.I. 1988, c. H-2, s. 13;
8
See e.g. Ontario Health Insurance Act, R.S.O. 1990, c. H.6, s. 30(5); Alberta Hospitals Act,
R.S.A. 2000, c. H-12, s. 62(3)(b); Nova Scotia Health Services and Insurance Act, R.S.N.S. 1989,
c. 197, s. 18(10); Prince Edward Island Insurance Act, R.S.P.E.I. 1988, c. I-4, s. 65.1(7); Medical
Care Insurance Act, S.N.L. 1999, c. M-5.1, s. 19(1).
373
however, such as physiotherapy expenses, are recoverable as

pecuniary damages.
3. Loss of Wages or Wage-Earning Capacity. Pre-trial lost earnings
are recoverable as special damages in Canada. The Supreme Court of
Canada has also held loss of wage-earning capacity to be recoverable,
not based on a fixed value that has been assigned to an abstract
capacity to earn, but rather on the value of the earnings that she or
he would have received over time, had the tort not been committed:
M.B. v. British Columbia, [2003] 2 S.C.R. 477 at paras. 47-50.
II.
1. General Damages. In Canada, a composite award of general damages
is given in respect of all non-pecuniary losses suffered by a plaintiff,
including pain and suffering, loss of amenities and loss of expectation
of life. This award aims at providing a plaintiff with reasonable
solace for his misfortune in the form of physical arrangements which
can make his life more endurable, as no money can provide true
restitution: see Andrews v. Grand & Toy Alberta Ltd., [1978] 2
S.C.R. 229. Throughout Canada, general damages are subject to an
inflation-adjusted $100,000 cap set in 1978 (and standing at about
$350,000 today) by the Supreme Court of Canada in a trilogy of cases.
See Andrews, above; Thornton v. Prince George School District 57,
[1978] 2 S.C.R. 267; and Arnold v. Teno, [1978] 2 S.C.R. 287. Awards
in the neighborhood of the cap are generally reserved for the most
serious injury cases, such as those involving quadriplegia or severe
brain damage.
2. Aggravated Damages. Canadian courts do not view aggravated
damages and punitive damages as synonymous. Unlike punitive
damages, aggravated damages are compensatory in nature. They may
augment a general damages award where the plaintiffs harm has been
aggravated by the manner in which it was inflicted. See Vorvis v.
Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085 at 109899. Aggravated damages may take into account circumstances such as
humiliation, degradation, violence, oppression, inability to complain,
reckless conduct which displays a disregard of the victim and postincident conduct which aggravates the harm to the victim: T.W. v. Seo
(2005), 256 D.L.R. (4th) 1 (Ont. C.A.) at paras. 69-70.
3. Punitive Damages. In Canada, punitive damage awards are relatively
rare, generally modest and limited to high-handed, malicious,
arbitrary or highly reprehensible misconduct that departs to a marked
degree from ordinary standards of decent behaviour: Hill v. Church of
Scientology of Toronto, [1995] 2 S.C.R. 1130. The highest punitive
damage award to date has been a $1 million sum awarded against an
374
insurer acting in bad faith in Whiten v. Pilot Insurance Co., 2002 SCC
18.
4. Disfigurement. Disfigurement, including burns or scarring, is
recoverable under Canadian law. Disfigurements to a child, affecting
his or her lifelong appearance and self-esteem, may attract particularly
high damage awards as compared with an adult: see Webb v. Weiglein
(2006), 152 A.C.W.S. (3d) 842 (Ont. Sup. Ct. J.) at para. 48.
Disfigurement, however, cannot be separately-awarded and thus forms
part of a capped general damages award in respect of pain and
suffering.
5. Loss of Use of Limb. The loss of use of a limb can be compensated
for within an award for general damages. See Andrews, above.
6. Emotional Distress. Negligent infliction of nervous shock or
psychiatric damage has been recognized as compensable in Canada,
but has been narrowly-circumscribed by courts. The harm must have
been reasonably-foreseeable to the party whose negligence caused it.
Extraordinary, individualized reactions to ordinary events are
unlikely to be compensable. The damage in question must rise above
the ordinary annoyances, anxieties and fears that people living in
society routinely, if reluctantly, accept. See Mustapha v. Culligan
Canada Ltd., 2008 SCC 27. Finally, the award cannot be granted
separately from general damages, and is thus subject to Canadas
cap over that head of recovery.
III.
Jury Instructions:
a. Damages Personal Injury General Damages
(British Columbia)
Non-pecuniary losses are personal injury losses that have not required an
actual outlay of money. The purpose of such an award is to provide solace
to the plaintiff for such things as pain, suffering, disability, inconvenience,
disfigurement, loss of enjoyment of life, and loss of expectation of life.
One purpose of an award for damages for non-pecuniary loss is to
substitute other amenities for those that the plaintiff has lostnot to
compensate the plaintiff for the loss of something with a money value.
Your award should address such losses suffered up to the date of trial and
also those [he/she] will suffer in the future.
You should understand that the exercise of determining an appropriate
award for non-pecuniary loss is not intellectual in the sense that it is taught
as a course at law school. You can decide what is the correct figure. Your
figure may differ from what I think is appropriate, but that does not
375
necessarily mean you are wrong and I am right. You bring to the law the
common sense of the community. Your decision helps the courts keep in
touch with the views of the citizens, whom the law is designed to serve.
In this trial, you heard evidence that the plaintiff suffered [catastrophic,
devastating, severe, serious] injuries as a result of the event of [date].
Whichever evidence you prefer, in a situation such as this there is a special
direction I must give you. The law imposes an upper limit on the amount
of money you may assess as damages for non-pecuniary losses in the
nature of pain, injury, suffering and loss of enjoyment of life.
If you conclude that this is an instance where the plaintiff has suffered
catastrophic or very severe injuries because of the event(s) of [date], there
is a rough upper limit you may award the plaintiff for non-pecuniary
damages because or [his/her] injuries. Examples of the kinds of injuries
that warrant this description include, but are not limited to, quadriplegia,
paraplegia, and total functional loss, but do not include cases where a
person is unaware of their injuries because they are insentient or comatose.
[Read paragraph (1) or (2) as appropriate.]
(1)
Evidence was given to the effect that the rough upper limit today is
the sum of $ [amount].
(2)
No evidence was led as to the amount of the limit. However, I can

tell you that it was fixed by the Supreme Court of Canada in 1978
at $100,000. Since then, we have had inflation. Today it is
somewhere around the figure of $ [amount].
(R. Dean Wilson et al., CIVJI: Civil Jury Instructions, 2d ed. (Vancouver,
BC: The Continuing Legal Education Society of British Columbia, 2010)
at 12.3-12.7)
In the province of Ontario, a parent has the right to sue to recover medical
or other expenses paid in connection with injuries to his or her child. The parent
may recover his or her actual expenses, loss of income and compensation for loss
of guidance, care and companionship: see Family Law Act, R.S.O. 1990, c. F-3,
s. 61. This right does not end once the minor reaches the age of majority. Other
provinces, in contrast, allow no such derivative claim outside of instances of
fatal injury, as discussed below.
In all provinces, a minor has no standing to sue until he or she reaches the
age of majority. Until then, a minor requires a litigation guardian to proceed with
376
a claim.9 A parent can serve that role. However, in personal injury actions,
unless the parent also joins the minor as a co-defendant, he or she will be without
any entitlement to the expenses claimed for: Hamilton v. Berger, [1972] 3
W.W.R. 766 (B.C.S.C.).
In Canada, wrongful death claims, including those in respect of a minor,
are governed by provincial legislation.10 Entitlements to relief vary from province
to province. All such claims, however, only stand if the deceasedhad he or she
not been killed by the wrongful act in questionwould have been able to sue the
putative defendant personally. Each statute sets out who may bring a claim for
damages against those responsible for their family members death, as well as the
categories of recovery available.
I.
Economic Damages:
1. Funeral, Medical and Other Related Expenses. The provincial fatal
accidents acts, as well as Ontarios Family Law Act, provide that
expenses relating to the deceaseds funeral and the disposal of the
deceaseds body are recoverable. The acts also provide for the
recovery of expenses incurred for the care of the deceased between the
time of his or her illness and death. Family members transportation
and accommodation costs related to visits are also typically included.
Some acts provide that grief counseling for immediate family
members 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 the
deceased. Claimants are entitled to receive the present value of what
Minors, so long as they have not appointed a litigation guardian, are not subject to Ontarios
limitation period regime, which usually bars claims two years after they are discovered: see the
Ontario Limitations Act, R.S.O. 1990, c. L.15. However, once a minor appoints a litigation
guardian, his or her limitation period begins running. This is in contrast to the rules governing in
many U.S. states.
10
See Ontario Family Law Act, R.S.O. 1990, c. F-3, s. 61; British Columbia Family Compensation
Act, R.S.B.C. 1996, c. 126, s. 2; Alberta Fatal Accidents Act, R.S.A. 2000, c. F-8, s. 2;
Saskatchewan Fatal Accidents Act, R.S.S. 1978, c. F-11, s. 4; The Fatal Accidents Act
(Manitoba), C.C.S.M. c. F-50, s. 2; New Brunswick Fatal Accidents Act, R.S.N.B. 1973, c. F-7, s.
2; Nova Scotia Fatal Injuries Act, R.S.N.S. 1989, c. 163, s. 3; Prince Edward Island Fatal
Accidents Act, R.S.P.E.I. 1988, c. F-5, s. 4; Newfoundland and Labrador Fatal Accidents
Act, R.S.N.L. 1990, c. F-6, s. 3; Yukon Fatal Accidents Act, R.S.Y. 2002, c. 86, s. 2; Northwest
Territories Fatal Accidents Act, R.S.N.W.T. 1988, c. F-3, s. 2; Nunavut Fatal Accidents
Act, R.S.N.W.T. (Nu) 1988, c. F-3, s. 2. In Quebec, dependants wrongful death flow from Article
1457 of the Civil Code of Quebec, S.Q. 1991, c. 64: see Augustus v. Gosset, [1996] 3 S.C.R. 268.
11
See e.g. Alberta Fatal Accidents Act, R.S.A. 2000, c. F-8, s. 7(d); Saskatchewan Fatal Accidents
Act, R.S.S. 1978, c. F-11, s. 4(2)(c).
377
was their expected future stream of economic benefits from the

deceased, taking both positive and negative contingencies into
account. Occasionally, where a reasonable basis exists to infer that a
child would financially-support his or her parents in the futureoften
based on the familys cultural or economic circumstancescourts will
award lost monetary support to the latter: see e.g. Ayeras v. Front
Runner Freight Ltd., 1998 CarswellBC 1644 (S.C.).
II.
1. Loss of Care, Guidance and Companionship. Canadian provinces
conflict in their recognition of loss of care, guidance and
companionship as a ground of recovery on a minors death. Many of
the fatal accidents statutes provide that only pecuniary damages may
be recovered.12 However, the Supreme Court has interpreted that
statutory language not to preclude the loss of care, guidance and
companionship claims expressly set out in most13 of the statutes: see
Ordon Estate v. Grail, [1998] 3 S.C.R. 437 at para. 101. The British
Columbia Court of Appeal has rejected any damages for love,
affection or companionship, which language is not present in its
legislation: see Bianco v. Fromow (1998), 161 D.L.R. (4th) 765.
Alberta, Saskatchewan and Manitoba provide fixed sums to spouses,
parents or children on the ground.14 Most litigated claims, to date,
have been modest in size. In one recent case, however, the Ontario
Court of Appeal upheld three $100,000 awards to the parents and
brother of a two-year-old child who, due to the defendants negligence,
fell five stories out of an apartment window and suffered a severe
frontal lobe injury: see Sandhu v. Wellington Place Apartments, 2008
ONCA 215. Those awards remain the largest of their kind in Canada.
2. General, Aggravated and Punitive Damages. Survivors may not
claim non-pecuniary damages for pain and suffering, loss of amenities
or loss of expectation of life, nor can they claim emotional suffering or
12
See Ontario Family Law Act, R.S.O. 1990, c. F-3, s. 61(1); The Fatal Accidents Act
(Manitoba), C.C.S.M. c. F-50, s. 3(2); New Brunswick Fatal Accidents Act, R.S.N.B. 1973, c. F-7,
s. 3(2); Prince Edward Island Fatal Accidents Act, R.S.P.E.I. 1988, c. F-5, s. 6(2).
13
See Ontario Family Law Act, R.S.O. 1990, c. F-3, s. 61(2)(e); Alberta Fatal Accidents
Act, R.S.A. 2000, c. F-8, s. 8(2); The Fatal Accidents Act (Manitoba), C.C.S.M. c. F-50, s. 3(4);
New Brunswick Fatal Accidents Act, R.S.N.B. 1973, c. F-7, s. 3(4); Nova Scotia Fatal Injuries
Act, R.S.N.S. 1989, c. 163, s. 5(2)(d); Prince Edward Island Fatal Accidents Act, R.S.P.E.I. 1988,
c. F-5, s. 6(3)(c).
14
See e.g. Alberta Fatal Accidents Act, R.S.A. 2000, c. F-8, s. 8(2) ($45,000 for children, $75,000
to partners and parents); Saskatchewan Fatal Accidents Act, R.S.S. 1978, c. F-11, s. 4.1 ($30,000
for children and parents, $60,000 to spouses) ; The Fatal Accidents Act (Manitoba), C.C.S.M. c. F50, s. 3.1(2) ($30,000 for spouses, common-law partners, support recipients, parents and children,
and $10,000 to other family members).
378
punitive damages:
(B.C.C.A.).
III.
Campbell v. Read, [1988] 3 W.W.R. 236
Jury Instructions:
a. Damages Wrongful Death Child
(British Columbia)
In the case of an event that causes the death of a child, our law provides
that damages may be awarded to the plaintiffs in proportion to the
pecuniary loss suffered by them. In this case the plaintiffs are the mother
and father of the deceased child (and counsel have agreed that you need
not divide the loss which the mother or father have suffered separately, but
you may award the damages to them jointly).
The measure of damages is the financial or pecuniary loss suffered by the
parents as a result of the death of their child. You must not give damages
for mental suffering or by way of comfort for the injured feelings.
Damages must not be given for the loss of the comfort and society of the
child, nor for grief and sorrow.
Pecuniary loss means the actual or anticipated financial benefit of which
the parents have been deprived by the death of their child. In considering
this you can take into account the present loss that might reasonably have
been expected in the future. In other words, it is the amount of financial
benefit which the parents might reasonably have expected their child had
[he/she] remained alive. This may include an amount for the services
which [the deceased child] may have provided in the home, as well as
direct monetary contributions. The parents are not required to prove a loss
in dollars and cents, but only that they have suffered real injury capable of
pecuniary compensation.
As an offset against the factors of loss that I have mentioned, you should
take into consideration what it would have cost the plaintiff(s) to educate
and support [the deceased child] had [he/she] lived.
In weighing the matters that I have mentioned, you should consider the
ages of [the deceased child] and of the plaintiff(s), the states of health and
physical condition of [the deceased child] and of the plaintiff(s) at the time
of the death or immediately prior thereto, and the respective life
expectancies as shown by the evidence. You should also consider the
disposition of [the deceased child], whether [he/she] followed any family
or cultural traditions of support or filial piety, and whether or not [he/she]
showed a likelihood of contributing to the support of the plaintiff(s). You
should consider the earning capacity of [the deceased child], if any, and all
other facts and evidence which throw light on the question of pecuniary
loss.
379
As in the case of all awards of damages, the amount you arrive at should
be fair and reasonable to all parties to this lawsuit. Do not attempt to give
perfect compensationthat would be impossible. In assessing damage
you will not consider any division of liability that you have made under
question number [number].
Please remember that this is the only time you can award compensation.
The parties cannot return. Therefore, the amount awarded should be
reasonable, not oppressive or extravagant. On the other hand, it should
not be inadequate. You should endeavour to the best of your ability to
strike a fair balance.
I will now review for you some of the relevant evidence.
[Review evidence regarding childs age, education, future plans, and
apparent health.]
You will consider all of these facts and ask yourself what actual or
anticipated financial benefit these parents have lost as a result of the death
of [the deceased child], and you will fill in that amount in answer to the
question number [number].
(R. Dean Wilson et al., CIVJI: Civil Jury Instructions, 2d ed. (Vancouver,
BC: The Continuing Legal Education Society of British Columbia, 2010)
at 13.14)
380

Damages and Claims in Minor Injury and Death Cases

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DAMAGES RECOVERABLE IN A MINORS

PERSONAL INJURY ACTION AND A

Lynne Jones Blain

value of the services and holding that because plaintiff failed to

Model Jury Instructions:

You must decide if [name of child] was permanently harmed, the

Wrongful Death of a Minor (who may bring suit)

Ala. Code 6-5-391 provides:

decline to commence the action, or fail to do so, within six months

Wrongful Death Damages

In a wrongful death action, the only damages recoverable are punitive in

Model Jury Instruction:

[name of defendant] for [his/her/its] wrongful conduct, and to deter

In cases of severe or permanent physical injury/disfigurement, the cap

PAST MEDICAL EXPENSES

FUTURE MEDICAL EXPENSES

the expense is reasonably necessary;

the expense is reasonably certain to occur; and

the evidence provides you with a reasonable basis for

20.12 ADDITIONAL HARM RESULTING FORM ORIGINAL

[Aggravation of the original injury resulting from the failure

[Aggravation of the original injury resulting from the failure

20.13 LIFE EXPECTANCY

Damages Recoverable in a Minors Wrongful Death Action

Who May Recover

In a wrongful death action of a child below the age of majority, the

Statute Damages Recoverable

Alaska Code 09.55.570 Action for Wrongful Death provides:

(3) loss of assistance or services irrespective of age or relationship of

In this case, (insert name of claimant(s)) (is) (are) (claim(s) to be)

[A person who was a "dependent" of the deceased at the time of

WRONGFUL DEATH DAMAGES PAST LOSS OF

04.06B WRONGFUL DEATH DAMAGES FUTURE LOSS OF

assistance or services; the nature of the assistance or services customarily

The item of claimed loss is a fair amount to compensate (the) (each)

Future Medical Expenses. A child may recover for future

Nursing Services. A child may recover for future hospital or

Lost Wages. Past and future lost wages are an appropriate

Loss of Childs Services. Parent being entitled to minor child's

Physical Pain and Suffering. Children may recover pain and

Loss of Consortium. Parents may maintain a cause of action for

Punitive Damages. Punitive damages are available in Arizona.

The nature, extent, and duration of the injury.

The pain, discomfort, suffering, disability, disfigurement,

Reasonable expenses of necessary medical care, treatment,

Lost earnings to date, and any decrease in earning power or

Loss of love, care, affection, companionship, and other

Loss of enjoyment of life, that is, the participation in lifes

Revised Arizona Jury Instructions (Civil) 4th: Personal Injury

Intent to cause injury; or

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

Who May Recover

D. For the purposes of subsection A, "personal representative" includes

The loss of love, affection, companionship, care,

The pain, grief, sorrow, anguish, stress, shock, and mental

The income and services that have already been lost as a

The reasonable expenses of funeral and burial.

The reasonable expenses of necessary medical care and

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

(1934). 'The reason that mental suffering, unaccompanied by

Whether any of these __________ elements of damage has been proved

AMI 2208 Measure of DamagesScars, Disfigurement, and Visible