DAMAGES RECOVERABLE IN A MINOR S PERSONAL INJURY ACTION AND A MINOR S WRONGFUL DEATH CLAIM

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1 DAMAGES RECOVERABLE IN A MINOR S PERSONAL INJURY ACTION AND A MINOR S WRONGFUL DEATH CLAIM February 20, 2012 Lynne Jones Blain Dannel C. Duddy Editors 1

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

3 value of the services and holding that because plaintiff failed to demonstrate the pecuniary value of minor s chores around the house and lawn mowing no loss of child services damages were recoverable). 6. Loss of Society is NOT recoverable. The loss of society of a child as distinguished from the loss of his services cannot form the element of recoverable damages. Smith v. Richardson, 171 So. 2d 96, 100 (Ala. 1965). II. Noneconomic Damages: 1. Physical Pain and Suffering. A child may recover pain and suffering and mental anguish damages for a personal injury. See Daniels v. East Alabama Paving, Inc., 740 So. 2d 1033 (Ala. 1999); see also Wal- Mart Stores, Inc. v. Dobson, By and Through Dobson, 709 So. 2d 1252, 1254 (Ala. Civ. App. 1998) (upholding $20,000 jury award for minor with head injury noting that the law is clear that there is no yardstick to measure the amount of recompense which should be awarded for pain or mental suffering. ) 2. Punitive Damages. Like an adult, punitive damages are available if the defendant acted with fraud, malice, or wantonness which caused the injury to the child. See Ala. Code ; see also Superskate, Inc. v. Nolen by Miller, 641 So. 2d 231, 236 (Ala. 1994) (affirming $25,000 past damages, $25,000 future damages, and $35,000 punitive damages where plaintiff daughter, by and through her mother, established the skating rink s willful and wanton conduct causing her injury). III. Model Jury Instructions: a. Medical Expenses for Child APJI (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. 3

4 *Note on Use Use this instruction when the plaintiff father or mother, or spouse, claims damages for the medical expenses for the care of a minor child or their spouse. b. Parent s Nursing Services for Child APJI (2011 Supp.). [Name of plaintiff] claims damages for the nursing care [he/she] provided to [name of minor child]. The measure of damages for the nursing care for [name of minor child] is the reasonable monetary value of the services You must decide if the services to [name of minor child] were necessary, the reasonably monetary value of the services, and if the need for the services was caused by [name of defendant s conduct]. *Note on Use A parent s lost time from work and lost wages are not compensable. c. Loss of Services Minor Child Temporary Disability APJI (2011 Supp.) [Name of plaintiff] says [he/she] lost the services of [name of minor child] because of [name of defendant] s conduct. The measure of damages is the reasonably monetary value of [name of child] s services. You must decide the reasonable monetary value of [name of child] s services, and if the loss was caused by [name of defendant] s conduct. *Note on Use Use this instruction when a parent claims loss of the minor child s services. d. Loss of Services Minor Child Permanent Disability APJI (2011 Supp.). [Name of plaintiff] says that [name of minor child] is permanently harmed because of [name of defendant] s conduct and [name of plaintiff] has lost and will lose the child s services. The measure of damages is the reasonable monetary value of [name of child] s services until the child is 19 years old. 4

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

6 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 (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 ) 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 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 (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 6

7 [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. 7

8 ALASKA Brian R. Cannon Harman, Claytor, Corrigan & Wellman Richmond, Virginia (804) Damages Recoverable in a Minor s Personal Injury Action 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 (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 (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). 8

9 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 (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 (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 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.).] 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 9

10 this amount, you must deduct federal [and state] income taxes that would have been paid 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] 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 10

11 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 (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 (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 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. 11

12 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 N 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 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 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. 12

13 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.] 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. Who owns the right to sue for medical expenses? Parent or child? If parent does that end at the age of majority when it becomes child s claim? The parent has the primary right of action for past medical expenses on behalf of an un-emancipated minor. However, this right may be waived by the parent. If the parent fails to object to the infant s seeking those damages or if the parent testifies on the child s behalf in the case, then the parent is deemed to have impliedly waived a claim to those damages. Alaskan Village, Inc. v. Smalley, 720 P.2d 945, 950 (Alaska 1986). 13

14 Damages Recoverable in a Minor s Wrongful Death Action I. Who May Recover In a wrongful death action of a child below the age of majority, the parents or personal representative of the child may bring a claim (provided the minor has no dependents). AS 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 Action for Wrongful Death provides: (a) Except as provided under (f) of this section and AS , 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; 14

15 (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 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.] 15

16 [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)

17 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 A WRONGFUL DEATH DAMAGES PAST LOSS OF SUPPORT 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

18 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.] WRONGFUL DEATH DAMAGES LOSS OF ASSISTANCE OR SERVICES The items of claimed loss are the fair value of the assistance or services that the deceased reasonably could have been expected to give to (the) (each) beneficiar(y)(ies) if the deceased had continued to live, even though the deceased was under no legal obligation to provide such assistance or services. In fixing this amount for each individual beneficiary, you may consider, along with the evidence, the willingness of the deceased to provide 18

19 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 WRONGFUL DEATH DAMAGES LOSS OF CONSORTIUM The item of claimed loss is the fair value of society, comfort, care, protection, affection and companionship that the deceased reasonably could have been expected to provide to (the) (each) beneficiary if the deceased had continued to live. In fixing this amount for each individual beneficiary, you may consider, along with other evidence, the closeness and harmony of the relationship between the deceased and (the) (each) beneficiary and the willingness of the deceased to participate in activities with (the) (each) beneficiary WRONGFUL DEATH DAMAGES LOSS OF PROSPECTIVE TRAINING AND EDUCATION The item of claimed loss is the fair value of prospective advice, education, and training that the deceased reasonably could have been expected personally to give if the deceased had continued to live. In fixing this amount for each individual beneficiary, you may consider, along with other evidence, the ability and willingness of the deceased to impart such skill or knowledge to (the) (each) beneficiary 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 WRONGFUL DEATH DAMAGES PAIN AND SUFFERING OF BENEFICIARY The item of claimed loss is a fair amount to compensate (the) (each) beneficiary for the sorrow, mental distress and grief that (he) (she) (they) have suffered because of the death of the deceased. *Note, it must be a statutory beneficiary 19

20 ARIZONA John Merrick Harman, Claytor, Corrigan & Wellman Richmond, Virginia (804) Damages Recoverable in a Minor s Personal Injury Action I. Economic Damages: 1. Medical Expenses. Both the minor and the minor s parents are entitled to recover pre-majority medical expenses, but double recovery is not permitted. Estate of Desala v. Prescott Unified School District No. 1, 226 Ariz. 387, 249 P.3d 767 (2011) (overruling Pearson & Dickerson Contractors, Inc. v. Harrington, 60 Ariz. 354, 137 P.2d 381 (1943) and S.A. Gerard Co. v. Couch, 43 Ariz. 57, 29 P.2d 151 (1934). Children may recover postmajority medical expenses. Id. 2. Future Medical Expenses. A child may recover for future medical expenses. See City of Yuma v. Evans, 85 Ariz. 229, 336 P.2d 135 (1959). 3. Nursing Services. A child may recover for future hospital or nursing expenses. See City of Yuma v. Evans, 85 Ariz. 229, 336 P.2d 135 (1959). A parent may recover for the lost time away from work to care for an injured child, medical expenses incurred in caring for the child, and other provision of care costs, although the injury, pain and suffering, etc. belong to the minor child. Sheppard v. Crow-Barker Paul No. 1, LP, 192 Ariz. 539, 549, 58, 968 P.2d 612, 622 (App. 1998). 4. Lost Wages. Past and future lost wages are an appropriate measure of damages under Arizona law. Felder v. Physiotherapy Associates, 215 Ariz. 154, 158 P. 3d 877 (2007); Lewis v. N.J. Riebe Enterprises, Inc., 170 Ariz. 384, 825 P.2d 5 (1992). 5. Loss of Child s Services. Parent being entitled to minor child's services and earnings, infant suing for personal injuries cannot ordinarily recover for impairment of his earning capacity during infancy. S. A. Gerrard Co. v. Couch, 43 Ariz. 57, 29 P.2d 151(1934). 20

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