Promise Matters: Winning Pecuniary Damages in a Child’s Wrongful Death Claim
Written by Jodi Nofsinger Daniel G. Kagan
Maine’s Wrongful Death Act (“the Act”), among other elements of damages, permits recovery for pecuniary loss resulting from a decedent’s death. The most obvious means of establishing pecuniary loss derives from the decedent’s earning history. So must you forego a pecuniary loss claim if your client estate’s decedent was a child with little or no earnings history?
We faced that question in two recent cases. In one case, we sued on behalf of a family whose teenage daughter, a high school junior planning to become a physician, died in a widely reported amusement ride failure. The other case involved a recent high school graduate who aspired to take over his father’s logging business and was killed by a drunk driver. Each decedent had shown particular promise for a fulfilling life with significant earnings, yet both families had been advised by other counsel that they could not claim pecuniary damages under the Act.
2009 Legislature Change Eliminates Need to Tie Pecuniary Loss to Particular Beneficiaries
Before 2009, this was effectively true. Pecuniary damages were limited to losses for “the pecuniary injuries resulting from the death to the persons for whose benefit the action is brought….”. 18-A M.R.S.A. 2-804(b) (former version) (emphasis added). Thus, pecuniary loss recovery required proof that statutory beneficiaries would lose out financially from the death. Since few teenagers have beneficiaries they are supporting financially or are likely to support financially in the future, establishing pecuniary loss was difficult.
The Legislature changed this in 2009, amending the Act by excising the words “for whose benefit the action is brought” from Section 2-804(b). This eliminated the need to tie pecuniary loss to particular beneficiaries, which in practical terms meant proving that the deceased child would have supported her or his parents in old age. See Fitzpatrick v. Cohen, 777 F. Supp. 2d 193, 195-96 (D. Me. 2011), a decision by Judge George Singal, in which he recognized this change in the law, but did not resolve the issue of whether the award needed to be offset by the decedent’s personal consumption. Whereas pre-2009 death cases under the Act required two-pronged proof (likely future earnings plus proof of specific financial loss to the statutory beneficiaries), the Act’s 2009 amendment eliminated the latter requirement.
Establishing a Decedent Child’s Pecuniary Loss
Establishing a decedent child’s pecuniary loss requires evidence of habits, as well as the child’s capacity for achievement, education, temperament, and character. Bowley v. Smith, 131 Me. 402, 406, 163 A. 539, 541 (Me. 1932). While it is the Estate’s burden to show the decedent had the capacity to earn as claimed, this burden is eased somewhat by the Court’s instruction to the jury that it need not find earning capacity precisely or to a mathematic certainty, and that it has (wide) discretion in reaching its finding. Id; McKay v. New England Dredging Co., 92 Me. 454, 459, 43 A. 29, 30. Further, as the focus for pecuniary loss is on earning capacity, there is no requirement that the estate produce proof of an exact income or a specific profession or specialty that would generate that income. Id. Other means of meeting this burden include demonstration of the family’s culture of education and achievement. For example, expert testimony can establish the statistical likelihood of a child’s earnings given parents with high school versus college educations.
While the 2009 amendment to the Act allows the child’s pecuniary loss to get to the jury, there is still the challenge of overcoming understandable—perhaps even expected—juror skepticism about projecting a child’s achievements over a lifetime. Poorly presented, a child’s pecuniary loss claim risks not only rejection of that claim but tainting the rest of the wrongful death claim by overreach.
Teens’ Histories Support Compelling Pecuniary Loss Claims
Fortunately, both our cases involved remarkable teens whose histories supported compelling pecuniary loss claims. While looking into the claim, we learned that the high school junior had identified herself as a physician since childhood, had spoken and written about this goal extensively, and had even job-shadowed with a practicing physician the summer before her death. She was also an exceptional student academically, athletically, socially, and in extracurricular activities. Her parents were well-educated, having earned college and graduate degrees. We felt confident jurors would see her for what she was—an exceptional young woman, a star among stars, likely to continue her excellence and meet her goals at every level.
The young man, in contrast, was an indifferent student with no love for organized education. His parents owned a logging business that, from his earliest days, he aspired to take over. From the time he was a toddler, his father took him into the woods to work and taught him to operate all manner of equipment. We were able to show that the young man had attended logging equipment shows throughout the Northeast, wearing a name badge identifying himself as the family business’s “Future Owner.” Following the family’s lead, we spoke with and secured as witnesses numerous loggers and woodsmen who had worked alongside the young man. Each spoke with heartfelt conviction and glowing admiration for the decedent’s equal measure of work ethic and skillful operation. A short stint as a substitute operator for a local lumber yard caught the eye of the yard manager, who became another strong witness for us.
Some Recovery Earmarked for Pecuniary Loss Compensation
The facts underlying the claims we presented for these two teens could not be more different, but each was successful due to a common theme. Neither teen had an earnings track record as a predicate to recovery for pecuniary loss, but both teens had demonstrated dedication to achieving their respective goals. As a result, both cases settled with a substantial portion of the recovery earmarked for pecuniary loss compensation.
Financial accountability for the consequences of one’s bad acts is at the core of our tort system. Thanks to the 2009 amendment to the Act, no longer are tortfeasors automatically insulated from the full measure of the harm they cause when their deceased victims are children.
1. The jury may give damages as it determines a fair and just compensation with reference to the pecuniary injuries resulting from the death. 18-A M.R.S.A. § 2-804(b)
2. “It is evident that the pecuniary damages to be recovered under this statute can never be ascertained with exactness nor with any satisfactory degree of approximation. Unlike ordinary questions of the legal measure of damages, this relates wholly to the future. There can never be knowledge. The conclusion arrived at must be based on probabilities instead of facts. The only facts that can be ascertained are those which occurred before or at the time of the death. From that data, what would probably have occurred had not the wrongful act or neglect of the defendant intervened, must be conjectured as carefully as possible.” McKay at 459, A. at 30.
3. Confidentiality agreements in both cases protect from release the specific settlement details beyond “the cases resolved on terms satisfactory to all parties.”