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3.4-7 Damages - Wrongful Death
Revised to January 1, 2008
I want to discuss the laws
pertaining to damages. I will address our general rules and then I
will discuss the specific laws relating to a wrongful death case.
As you know, this case is
captioned <name> v. <name>. (Mr./Ms.) <name of
plaintiff>, while labeled the plaintiff, is the (executor /
administrator) of the decedent <name of decedent>'s estate;
the estate is the actual plaintiff in this case. Any damages
awarded in this case would go to the estate and not simply to
(Mr./Ms.) <name of plaintiff>.
The General Rules
of Damages
Insofar as money can do
it, a plaintiff is to receive fair, just and reasonable compensation
for all injuries and losses, past and future, which are legally
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,
and in this case the estate, for the decedent's resulting injuries
and losses.
Our laws impose certain
rules to govern the award of damages. The plaintiff has the burden
of proving (his/her) entitlement to recover damages by a fair
preponderance of the evidence. 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 legally caused by the defendant's negligence. You may
not guess or speculate as to the nature or extent of the plaintiff's
decedent's losses or injuries. Your decision must be based on
reasonable probabilities in light of the evidence presented at
trial.
Once the plaintiff has
proved the nature and extent of the decedent's compensable injuries
and losses, it becomes your job to determine what is fair, just and
reasonable compensation for those injuries and losses. Some
determinations require a mathematical calculation; others involve
the use of human experience and the application of sound common
sense.
In a personal injury
action, which includes a wrongful death 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 have been
incurred 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's decedent has suffered as a result of the defendant's
negligence. They are awarded for such things as physical pain and
suffering and the destruction of the ability to enjoy life's
pleasures.
Wrongful Death
Damages
We have a statute that
governs damages in cases such as this where there is a death. It
allows for just damages which includes:
Economic damages of:
1) the reasonable and necessary medical and funeral expenses and
2) 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 and
Noneconomic damages of:
3) compensation for the destruction of the decedent's capacity to
carry on and enjoy life's activities in a way that (he/she) would
have done had (he/she) lived and,
4) compensation for the death itself, or
5) pain and suffering.
[The statute also allows
damages for pain and suffering; however, due to the instantaneous
death of (Mr./Ms.) <name of decedent> there is no claim made
for pain and suffering.]
I will now instruct you on
economic damages.
1. 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.
2. 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 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 well-being
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.
3. 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.
4. 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.
5. Pain and
Suffering
<In the event the death was not
instantaneous, see relevant portions of
Damages - General, Instruction 3.4-1>
Loss of Consortium
<See
Damages - Loss of Consortium, Instruction 3.4-3 where
applicable.>
Double or Treble
Damages, General Statutes § 14-295
<See
Damages - Double or Treble, Instruction 3.4-2 where applicable.>
Authority
Notes
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