Trying Damages in the Wrongful Death Case of an Adult Child
In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: Damages in a case involving the death of a working spouse and parent can readily be communicated to a jury. The more difficult case is when the decedent is a young adult just starting out in life, unmarried with no children, little to no earnings history, and survived only by his parents, all of which raises issues that should be confronted head on in jury selection and opening statements.
November 17, 2015 at 08:06 PM
12 minute read
When a young worker, who is married, with three children and who is earning $100,000 per year, dies after falling from a scaffold, the award, whether by verdict or settlement, should be substantial. The special damages in such a case, specifically the loss of earnings, loss of parental care and guidance and loss of services to the spouse can readily be communicated to a jury. The more difficult case, however, is when the decedent is a young adult child just starting out in life, unmarried with no children, little to no earnings history, and survived only by his parents. In such a scenario, the parents of the adult child would be the distributees entitled to compensation in the wrongful death action. This is the first of two articles discussing damages issues in such a case. This article deals with jury selection and opening statements. A future article will deal with the direct examination of the parent or parents and summation.
Wrongful Death Statute
Under the common law of England, it was not possible to maintain an action for damages for wrongful death. For years this was the state of the law in New York and many other states, depriving people who suffered the most grievous injury from seeking compensation for the loss of a loved one. In effect, it was cheaper for a defendant to kill, rather than injure, a plaintiff. In the 19th century, New York's Legislature enacted a wrongful death statute authorizing the representative of a decedent survived by distributees to bring an action for wrongful death.
The wrongful death statute, however, does not allow a distributee to recover for the emotional distress and grief he or she suffers over the loss of a parent or child. Instead, the statute only allows recovery for pecuniary damages, or monetary, loss to the distributees. Where the wrongful death damages are economic in nature, the death of an unmarried adult child with no children who is survived only by his parents may seem to have little promise of a substantial recovery. However, a trial lawyer advocating for the surviving parents should refrain from seeing the case through the eyes of the ancient English King or through the strict interpretation offered by New York's Legislature and instead frame the case through the eyes of the parents. By framing the case through the eyes of the parents and presenting facts and evidence accordingly, the jury can award a substantial verdict, even in the absence of formalized special damages.
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