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What Can Be "Put on the Board"?

Wrongful Death and Survival Actions Pleading, Proving and Valuing

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In a wrongful death action, the recovery is for the damages suffered by the decedent's beneficiaries and not for the injuries to the decedent. Therefore, damages under the Wrongful Death Act are determined from the standpoint of the beneficiaries rather than from that of the decedent, and recovery cannot be obtained for injuries suffered solely by the decedent such as the decedent's pain and suffering.

The purpose of wrongful death damages is to compensate the spouse, children, or parents of a deceased person for the pecuniary loss they have sustained as a result of the death. Damages are measured by the pecuniary loss suffered by the named beneficiaries as a result of the death of the deceased. Pecuniary loss has been defined as the destruction of a reasonable expectation of pecuniary advantage from the deceased. The concept of what constitutes pecuniary loss has been stretched to include certain items of damages that are not truly pecuniary in nature.

In addition to damages based on the portion of the decedent's earning that would have gone for their benefit, the beneficiaries in a wrongful death action may also recover for certain other types of lost benefits, such as a spouse's loss of the decedent's services society and companionship, a parent's loss of the services of a child, and a minor child's loss of the guidance and nurture of a deceased parent.

In order to form a basis for damages in a wrongful death action gifts and services must have been rendered by the decedent with a frequency that would support the conclusion that they would have continued if it were not for the death, occasional gifts and services being insufficient for that purpose. The Wrongful Death Act itself also specifically provides for the recovery of medical expenses and funeral expenses, the cost of a tombstone, and the cost of administration of the estate.

A. Earning Capacity of the Decedent

As a general rule, damages in a wrongful death action include that part of the decedent's probable earnings during the probable duration of his life that would have gone for the benefit of his children, parents, or spouse. In an action in which such damages are claimed, it is essential to establish the earning capacity of the decedent. The measure of damages is not what the decedent would have earned, but only so much of his earnings as he would have expended for the benefit of his family.

The rule as to future losses under both the wrongful death action and the survival action is almost universally stated to be measured in terms of the decendent's lost future earning power. It has been held that investment income could properly form the basis for damages in a wrongful death action where "the predominating factor is the directing intellectual and physical labor of the individual," although at the same time it was indicated that an investment from capital not based on the efforts of the deceased would not provide a proper basis for damages since it would not be lost on his death. Social Security benefits are admissible as some evidence of the decedent's earning power. Funds received in the form of a veteran's subsistence allowance that terminated on death could form part of the funds on which wrongful death damages are based. Similarly, veteran's benefits lost as result of the decedent's death are a proper basis for damages.

It would seem that the proper rule should be that in a wrongful death action where the decedent was making contributions to the statutory beneficiaries from any source, and as a result of the death those contributions are terminated, the beneficiaries have suffered a pecuniary loss for which they should be entitled to damages. Likewise, if in the survival action the decedent was receiving payments from any source which terminates with his death, his estate has suffered a pecuniary loss for which it should be entitled to damages.

The cost of maintenance of the deceased must be deducted from the earning capacity of the deceased in determining damages in a survival action. It is also clear that when a wrongful death action is joined with a survival action and the cost of maintenance is deducted in the survival action, the cost of maintenance should not be doubled by repeating the deduction in the wrongful death action.

The valuation question can be approached by determining what amount the decedent would have contributed for the benefit of the beneficiary of the wrongful death action. Of course that part of the earnings that the deceased would have spent on his own maintenance could not, under any circumstances, go for the benefit of the beneficiary and, therefore, cannot form any part of the damages suffered by the beneficiary as a result of the death. A clear example of this method of analysis would be a case where a parent with a substantial earning capacity provides a proportionately small contribution toward the support of a minor child. Under a contribution analysis, it is only in the most theoretical sense that it can be said that the cost of maintenance is deducted in determining wrongful death damages. In the case of an action by a husband for the death of his wife, even though the decedent was not employed, the cost of the decedent's maintenance must be deducted from the pecuniary value of her services in the wrongful death action since the husband would have incurred the cost of his wife's maintenance.

In the case of the death of a housewife who is gainfully employed, but who retains her own earnings, the Supreme Court has held that the cost of maintenance is properly deducted in the wrongful death rather than in the survival action since the husband who was the beneficiary in the wrongful death action would have incurred the cost of maintaining his wife if she had lived. In the case a wrongful death action brought by parents for the death of a minor child, the parent's pecuniary loss is the value of the child's services and earnings during his minority less the cost of his maintenance during minority. In the case of a wrongful death action brought by a wife for the death of her husband, her pecuniary loss is measured by the amount of her husband's earnings that would have gone for her benefit, exclusive of the amount that would have gone for his own maintenance. In the case of a child's action for the death of a parent, any sums that a child would have contributed to the support of the parent, had the parent lived, must be deducted from the pecuniary value of the parent's services in calculating damages in a wrongful death action.

B. Life Expectancy of the Decedent

In general, the same factors apply in measuring the life expectancy of the deceased in a wrongful death action as are applicable in the case of a permanent personal injury. If the decedent dies from causes unrelated to the conduct of the defendant, damages are measured according to the time of his actual death rather than some hypothetical life expectancy.

C. Loss of the Services, Society and Companionship of Spouse

There seems to be little question that the surviving spouse is entitled to recover the pecuniary value of the services that the deceased spouse would have rendered had it not been for the death. Services include such things as work in and around the home and helping the spouse with the operation of a business. The damages for loss of services of a spouse are not limited to the cost of the services of a substitute hired to perform those services. It is recognized by the law that "[t]he frugality, industry, usefulness, attention, and tender solicitude of a wife and the mother of children, surely make her services greater than those of an ordinary servant, and therefore worth more," and [t]hese elements are not to be excluded from the consideration of a jury in making a mere money estimate of value.

There is no logical reason for allowing damages for loss of comfort, society and companionship in a personal injury action, but not allowing such damages in the case of death.

D. Loss of the Services, Society and Companionship of Decedent Other Than Spouse

Loss of the services of a decedent may be recovered by any of the designated beneficiaries in a wrongful death action, including parents' loss of the services of a child. Whether recovery can be obtained for the loss of the society and companionship of a decedent other than a spouse is much more difficult question.

Despite the apparent reluctance of the Pennsylvania courts explicitly to recognize a right of action for loss of consortium in death cases involving a person other than the spouse of the deceased, some other jurisdictions have permitted recovery in such cases.

In a case of death of a parent, the children of the deceased may recovery damages for the value of the guidance and nurture that they would have received from the deceased. The loss for which recovery is permitted under this item of damage has been variously described as the loss of the parent's services in the superintendence, attention to, and care of his family and the education of the children of which they have been deprived by the death. In order to recover damages for loss of the guidance and nurture of a parent it is necessary for the plaintiff to prove that but for the parent's death it is probable that the parent would have provided the guidance and nurture. Damages for loss of nurture and guidance are limited to the period during the minority of the deceased's children, the loss being presumed to cease when the children reach their majority.

E. Funeral, Medical and Estate Expenses

The Wrongful Death Act specifically provides for the recovery of damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death. Tombstones and Administrative Expenses have also been deemed proper damages.

F. Damages - Survival Actions

The statutory provision governing survival actions make no reference to the amount of damages recoverable. Therefore, the measure of damages has been established by the courts in judicial decisions. The measure of damages is not for the value of the life that was lost. In a survival action there can be recovery for those items for which the deceased could have sued in his lifetime, that is the damages that the decedent himself sustained, including pain and suffering of the deceased prior to death, the cost of medical, nursing and hospital care, the gross loss of the deceased's earning power from the date of injury until death, and loss of earning power less personal maintenance expenses from the time of death through the remainder of the deceased's estimated life expectancy. Recovery is not permitted for loss of the enjoyment of life, or shortening of life expectancy.

It is legally immaterial in calculating damages whether the decedent might have gambled his money away or given it to charity.

Where the plaintiff pursues a wrongful death action and a survival action together, the damages actually awarded in the wrongful death action representing the financial contributions that the decedent would have made to his beneficiaries from his earnings must be deducted from the damages that would otherwise be recoverable in the survival action based on the decedent's future earnings.

G. Earning Capacity of the Decedent During His Life Expectancy

Damages may be recovered for the loss of the decedent's earning capacity from the date of his death during the remainder of his work life expectancy, less the cost of the decedent's personal maintenance, and less the amount that the decedent would have contributed from his earning to his beneficiaries in the wrongful death action.

The decedent's normal life expectancy and work expectancy must be estimated in the same manner as that of a living but permanently disabled plaintiff. While consideration must be given to the amount of the decedent's wages at the time of his death, consideration should also be given to the possibility of future promotions and increases. Fringe benefits may also be considered.

Generally, in determining the amount of damages in a survival action, the cost of maintenance of the decedent must be deducted from his gross lost earning power. The cost of maintenance that must be deducted is not limited to those expenses essential to the decedent's physical existence at a bare subsistence level, but generally includes "that necessary and economical sum which a decedent would be expected to spend, based on his station in life for food, shelter and clothing, medical attention and some recreation." Proof of the cost of a decedent's maintenance is an essential part of the plaintiff's case, although such proof need not be precise.

It should be kept in mind in dealing with the cost of the maintenance of the deceased that certain of the expenses that might ordinarily be considered part of the cost of maintenance may continue after the death of the decedent and, therefore, should not be deducted when determining the proper amount of damages. For example, in the case of the death of a husband and father the cost of maintaining the family home, including the mortgage payment, the real estate taxes, and the heat and electricity would not be any lower simply because the decedent is no longer living in the home. Likewise, the payments on the family car would not be any lower. Although no case has discussed the deductibility of such items, logic would dictate that they should not be deducted.

H. Pain and Suffering

The pain and suffering of the decedent prior to death is a proper item of damage in a survival action. There can be no recovery for pain and suffering where the deceased is killed instantaneously, where the deceased was unconscious between the time of his injury and his death, where the evidence of pain and suffering is speculative, or where the deceased would have suffered the same pain even if the defendant had not been negligent. Damages for pain and suffering have been permitted for a period as short as 2.1 seconds prior to death, and substantial awards have been affirmed even where the interval of pain and suffering is short.

The fact that there was pain and suffering may, in an appropriate case, be proved through an eyewitness, may be inferred from the circumstances, including the cause of death and the nature of the injuries to the deceased, or may be proved through the expert testimony of a physician.

I. Loss of Enjoyment of Life

Although the loss of enjoyment of life is a compensable item of damage in a personal injury action, on the theory that damages are not recoverable for the value of life itself and loss of the enjoyment of life is compensable only where the plaintiff is conscious of the loss, loss of enjoyment of life has been held not to be compensable in a wrongful death or survival action.

J. Funeral, Medical and Estate Expenses

In a survival action the personal representative of the decedent can recover the same damages as those the decedent could have recovered if he had survived until the conclusion of the lawsuit. Thus, the plaintiff can recover for the cost of medical, nursing and hospital care in a survival action. Obviously, however, if the plaintiff has recovered damages for these expenses in a wrongful death action, he cannot also recover damages for them in a survival action.

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