The death of a loved one is heartbreaking. The world stops, and the thought of moving on without a child, parent or spouse can seem impossible. They can never be replaced, yet our Wrongful Death Act severely limits family members’ recovery to pecuniary losses. Plaintiffs attorneys often rely on a statistical analysis completed by an economist regarding the hours of lost services and their replacement value. The goal of a trial attorney is to effectively highlight these pecuniary losses to the jury in an effort to substantiate and increase the value of the claim.
Wrongful death actions may be brought when a person’s death has been caused by the wrongful act of another, and, if death had not ensued, the injured person would have been entitled to maintain an action for damages resulting from the injury. N.J.S.A. §2A:31-1. With regard to the pecuniary injuries resulting from such a death, the jury may award damages as they shall deem fair and just. This is in addition to any hospital, medical and funeral expenses incurred. N.J.S.A. §2A:31-5.
It is important to note that there must be actual dependency. Mere relation to the deceased is not enough. Additionally, a wrongful death action does not currently permit dependents to recover for any emotional pain and suffering. However, there is a bill (S-1766) currently pending in the Senate Budget and Appropriations Committee that may permit these types of damages in the future. For now, we are still constrained by our restrictive statute. As a result, we must utilize strategies that effectively highlight our wrongful death damages to the jury in a way that increases their value.
Some ethnicities follow certain traditional family customs that can increase the value of wrongful death damages. For example, Indian, Asian and Native American cultures do not believe in placing their elderly in retirement homes because it is inherently viewed as disrespectful. Instead, they often have their parents live with them for the remainder of their lives. As the life expectancy rate continues to increase, the value of this extensive parental care and the expense and time the adult children concede to their parents would pose far more substantial damages as compared to standard long-term external care. This will dramatically increase the hours above the statistical averages provided by your economist. When applicable, it is important to highlight these cultural trends when presenting your case to the jury.
The Supreme Court of New Jersey in Green v. Bittner, 85 N.J. 1, 11–12 (1980), held that loss of companionship, care and advice which a parent suffers when a child is killed will sometimes be as great as the loss of counsel, care and guidance which a child suffers when a parent is the victim. When a parent sets forth a wrongful death claim for the loss of a young child, it is important to establish the relationship the child had with his or her parents, grandparents, siblings and mentors. The same factual approach used in adult death cases is taken when it is a child who has been killed. Id. at 11.
The acorn philosophy concerns the family’s history and trends involving education, employment, earnings and community activities. Did one or both of the parents go to college or graduate school? What kind of jobs have the parents had growing up or currently have? How much do the parents earn, and were they saving for the child’s college fund? Was the child expected to get a job and contribute to the family income? These questions can help paint a picture for the direction the child would have likely taken in his or her life, and how much financial assistance they would have provided for their family. If the child was involved in community activities, like the local church or helping out at their grandparents’ bingo night, this shows a commitment to helping the elderly and, more importantly, people in general. This will help form the basis for pecuniary losses.
The Appellate Division in Jablonowska v. Suther, 390 N.J. Super. 395 (App. Div. 2007), held that loss of companionship is limited to the value of the services that the companionship would have provided, based upon what the marketplace would pay a business adviser, therapist or trained counselor for performing such services. Although determining these values will be done by your economic expert, highlighting the family harmony will only increase and substantiate the values.
For example, the parent-to-grandparent relationship can be an indicator of how deceased children would have behaved in terms of caring for their own parents. If the grandparents live with the parents, or nearby, and the parents frequently take care of shopping responsibilities, chores and other financial support, this is an indicator that the parents would have expected their own child to do the same in the future. Advice and counsel is a general area which creates another point of increase in the value of a suit for the loss of a family member. If it is common for the parent to speak with the grandparent for day-to-day advice on life, business decisions, or providing support with mental illness such as depression, it would be likely that the deceased child would have done the same for the parent, and vice versa.
Overcoming the hardship of losing a family member poses one of the most difficult situations one must endure. In the event their death was caused by a wrongful act of another, it is important to identify family and cultural trends that can increase the overall value of a claim. Plaintiff’s attorneys must spend time learning about the deceased’s entire family, their relationships, family values, culture and traditions. In any wrongful death case, you should go to the survivors’ homes and meet with family members. Any family personalization and familiarization that you can relate to the jury will only increase the value of your damages.
Andrew J. Rossetti is a partner in the Cherry Hill office of Rossetti & DeVoto. He is a former assistant prosecutor of Camden County and is certified as a civil trial attorney by both the New Jersey Supreme Court and the National Board of Trial Advocacy. Dean E. Avgerinos is a law clerk at Rossetti & DeVoto.