Here is a list of the most common types of damages that may be recovered by a wrongful death beneficiary:
1. Past and future economic benefits from the deceased. The appropriate surviving family member may recover any benefit of value, including money, goods and services that he or she would have received from the deceased from the date of death and through the deceased’s life expectancy.
For instance, if the deceased left minor children and was expected to pay for the children’s school and/or college education, then this expense is a recognized damage element that may be recoverable. If the deceased is a parent of minor children, then each child may also claim the value of the deceased’s expected household services to each child, like childcare, housecleaning, meals, etc. Again, these types of damages are usually calculated by an economist or accountant.
Establishing an expected amount of future lost benefits can be very hotly contested, especially when the wrongful death beneficiary is an adult child of an elderly parent, or a financially dependent sibling or parent. This loss (except for a spouse in most states) is different from the expected earning power of the deceased — it is the portion of those future earnings that would have been spent on the particular surviving relative (e.g., spouse, child, etc.). Usually, an expert can establish a monetary value as long as the surviving family member can establish the reasonable expectation that he or she would have received that support, either because of a legal or moral duty to support (a spouse, child, or elderly parent) or because of behavior established over a lifetime (contributing to the living expenses of a brother or sister). Children of different ages or of special requirements would reasonably receive a different percentage of a parent’s earnings, and only until the statutory or moral duty to support ends.
A track record of giving from the deceased is very important in helping provide both size and certainty of the size and frequency of the gifts, goods, and services expected from the deceased. Some generalizations may have to be used when you are looking at a young child’s claim for the death of a parent, a spouse’s claim, or a parent’s claim for a young child, because jurors and claims adjustors expect that gifts and services will naturally flow in these relationships.
2. Loss of relationship (also called loss of consortium). Each appropriate surviving family member has an independent claim for the loss of his or her relationship with the deceased. In the case of a surviving spouse, the damages are for the loss of the deceased’s company, cooperation, emotional support, love, affection, care, services, and companionship (including sexual companionship). In the case of a surviving child or financially dependent sibling or parent, the damages are for the loss of the deceased’s love, care, guidance, protection, and companionship.
Damages for the loss of the relationship with the deceased are purely subjective. The strength of the person’s relationship right before death is extremely important. With surviving children, the age and dependency on the deceased parent at time of death is also very important. Younger children are usually more emotionally dependent on their parents so the damages for the younger child’s loss of relationship will usually be much greater than if the child was older and more mature.
The perception of the value related to the loss of a relationship is the perceived “closeness” between the claimant and the deceased. How strong was their relationship? How long had they known each other? What did they do together? How often did they talk and see each other? Did they work together or play together? Was the deceased taking care of the claimant’s needs as a caretaker or nurse? Was the deceased adept at listening to the claimant’s troubles and providing him or her with sound advice, and making his or her life easier? On the flip side, did the claimant rarely see or hear from the deceased? If the claimant was a spouse, what was the quality of the marriage? If the claimant is a child, what was the quality of the parent-child relationship? All of these questions are important when it comes to evaluating the amount of damages recoverable for the loss of the relationship with the deceased.
The testimony of friends and family about your relationship with the deceased will very effectively and persuasively present the facts which would lead to a claims adjustor or jury putting a high value on this element of compensation. This testimony would focus on the outward signs of what must have been very strong ties between you and your loved one, and the intensity of the loss you have suffered.
In many wrongful death cases that I handle, I have hired mental therapists, counselors, psychologists, and psychiatrists to help me establish the intrinsic loss that a surviving spouse and/or child has experienced as a result of the deceased’s death. I also rely on the testimony of other family members and friends who can state how close and loving the deceased was with his/her surviving relatives. In addition, the use of family photos, letters, cards, and other mementos can be very helpful in establishing the closeness of the relationships with the deceased and the profound nature of the loss that surviving family members are experiencing.
When proving loss of relationship damages, the strength of the deceased’s character and the deceased’s perceived loss of value is also important. For instance, a person who was highly respected, both personally and professionally, will carry much more weight and influence with a jury than if the person was a convicted criminal, or a “dead-beat” parent. Usually, jurors will assume that a deceased person who had a good character and a good reputation in the community presents a much greater loss to surviving family members than if the deceased had none of these attributes. This is why it is extremely important to consider what type of person the deceased was at the time of his or her death. Generally the wrongful death of a good person commands a much greater monetary value than if the deceased could have been considered a bad person or one who lacked moral scruples.