Death caused by the wrongful act of another where pecuniary losses are
sustained.
N.J.S.A. 2A:31-1
When the death of a person is caused by a wrongful act, neglect or
default, such as would, if death had not ensued, have entitled the person
injured to maintain an action for damages resulting from the injury, the
person who would have been liable in damages for the injury if death had
not ensued shall be liable in an action for damages, notwithstanding the
death of the person injured and although the death was caused under
circumstances amounting in law to a crime.
Where person who has been injured by tortious act of another which
later causes his death recovers from tort-feasor prior to his death, his
beneficiaries under Act have separate and independent right of action
Alfone v. Sarno, 168 N.J. Super. 315 (App. Div. 1979) modified on other
grounds 87 N.J. 99.
When survival and wrongful death actions lie arising out of the same
tortious conduct they should be joined in the same action. Alfone, supra.
Lawlor v. Cloverleaf Memorial Park, Inc., 10 N.J. Super. 134 (Law Div.
1968), reversed on other grounds 106 N.J. Super. 374, reversed on other
grounds 56 N.J. 326.
2. Persons entitled to sue or make claim
Died with a will = Executor
Died without a will = Administrator ad Prosequendum
No assets needs to be appointed
Died without a will = Administrator
Assets
N.J.S.A. 2A:31-2
Every action commenced under this chapter shall be brought in the name
of an administrator ad prosequendum of the decedent for whose death
damages are sought, except where the decedent dies testate and his will is
probated, in which event the executor named in the will and qualifying, or
the administrator with the will annexed, as the case may be, shall bring
the action.
Representatives Duty:
Person acting in representative capacity has obligation to distribute
recovery to those entitled. Jurman v. Samuel Braen, 47 N.J. 586 (1966).
3. Limitations of Actions
Within 2 years of death
N.J.S.A. 2A:31-3
Every action brought under this chapter shall be commenced within 2
years after the death of the decedent, and not thereafter.
4. Persons entitled to amount recovered
N.J.S.A. 2A:31-4
Persons entitled to intestate property.
The amount recovered in proceedings under this chapter shall be for the
exclusive benefit of the persons entitled to take any intestate personal
property of the decedent and in the proportions in which they are entitled
to take the same. If any of the persons so entitled were dependent on the
decedent at his death, they shall take the same as though they were the
sole persons so entitled, in such proportions, as shall be determined by
the court without a jury, and as will result in a fair and equitable
apportionment of the amount recovered, among them, taking into account in
such determination, but not limited necessarily thereby, the age of the
dependents, their physical and mental condition, the necessity or
desirability of providing them with educational facilities, their
financial condition and the availability to them of other means of
support, present and future, and any other relevant factors which will
contribute to a fair and equitable apportionment of the amount recovered.
How distributed:
A) Wrongful death recovery is not part of the estate and is distributed
without regard to decedent last will and statement. Schmoll v. Creely, 54
N.J. 194 (1969).
B) Proportions determined by the court when minors involved the court
will appoint guardian ad litem.
McCombs v. N.J. State Police, 242 N.J. Super. 261 (Law Div. 1990)
Although the award may be apportioned among several parties, it never
loses its characterization as a single award. McCullen v. Maryland
Casualty Co., 127 N.J. Super. 231 (App. Div. 1974), aff'd 67 N.J. 416
(1975).
C) Mere relation is not enough. There must be dependency. Jurman v.
Brean, 47 N.J. 586 (1966). However, there may be actual financially
dependent parties who do not qualify to take. In Eyoma v. Falco, 247 N.J.
Super. 435 (1991), a decedent was survived by his mother and his two
children. Although the Court heard testimony from the mother concerning
her actual dependency on the decedent, the court did not award damages to
her. A parent will take only where there is no issue or spouse. Hence, the
mother in Eyoma was not entitled to an award. See also Goodman v. Newark
Beth Israel, 251 N.J. Super. 533.
D) Right of spouse to partake of benefits of Wrongful Death Act is not
conditioned on dependency. Cassano v. Durham, 180 N.J. Super. 620, 436
A.2d 118 (Law Div. 1981).
Person who had maintained "live in" relationship with decedent without
benefit of marital ceremony, was not a "surviving spouse" within meaning
of Sec. 3A:2A-34 (repealed; see, now Sec. 3B:5-3) and thus, she could not
recover under Wrongful Death Act which stated that amounts to be recovered
under such Act were to be for exclusive benefits of person entitled to
take any intestate personal property. Cassano v. Durham, 180 N.J. Super.
620, 436 A.2d 118 (Law Div. 1981).
Widow of deceased who died without any children was entitled under the
statute of distribution to entire recovery for his death. Cibulla v.
Pennsylvania Reading Seashore Lines, 25 N.J. Misc. 98, 50 A.2d 461 (1947).
5. Assessment of damages by jury
Pecuniary damages only. Purpose of the award is the replacement of
services that the decedent would have rendered and nothing more. Hodgins
v. Serrano, 186 N.J. Super. 465 (App. Div. 1982).
N.J.S.A. 2A:31-5
In every action brought under the provisions of this chapter the jury
may give such damages as they shall deem fair and just with reference to
the pecuniary injuries resulting from such death, together with the
hospital, medical and funeral expenses incurred for the decedent.
A) Elements of Pecuniary Loss
· Deceased earnings with allowance for deceased's own needs
· Loss to deceased children of: Care, Guidance, Advice
· Loss of inheritance, if over and above what would have been given to
the next of kin.
· Funeral expenses
· Hospital and medical expenses
· Considerations
· Prospective earning capacity
· Probable life expectancies of deceased and surviving beneficiaries
· Decedent's physical condition
· Household expenses attributable to deceased
· Emotional loss, loss of consortium, grief, anguish, etc. NOT covered
under Wrongful Death Act.
· Punitive damages NOT recoverable. Turon v. J&L Construction Co., 8
N.J. 543 (1952).
· Child Decedent
Jury in awarding damages for death of 15 year old boy could consider
that mother, as sole surviving parent, would have been entitled to
earnings during boy's minority and even though such earnings would not
have been substantial before the boy reached age of 21, jury could take
into consideration the monetary value of his service in and about the
household and possible income from summer jobs, while he was still only a
student, offset by cost of his maintenance, and could reasonably assume
that expenses of college and graduate study would have been met by
scholarship and fellowship grants in view of boy's very high intellectual
capacity. Gluckauf v. Pine Lake Beach Club, Inc., 78 N.J. Super. 8, 187
A.2d 357 (App. Div. 1963).
B) Unborn Fetus
In Giardina v. Bennett, 11 N.J. 412 (1988), the Court reaffirmed Graf
v. Taggert, 43 N.J. 303 (1964), which held that a family could not recover
under the Wrongful Death Act for the death of an unborn child.
The Court rests its analysis upon the fact that the Wrongful Death Act
states that the death must be to a person, and that New Jersey has
consistently throughout history not recognized a fetus as a person.
C) Death of a Baby
In Carey v. Lovett, 132 N.J. 44 (1992), the Supreme Court held that (1)
Parents can recover for their emotional distress caused by medical mal
practice in birth and death of their daughter, (2) Parents may recover
some damages for the wrongful death of their two week old child, although
very limited damages, and (3) Parents may recover for the pain and
suffering of the child for the two weeks the baby was alive, as long as
the pain and suffering was conscious.
The jury in Carey awarded $450,000 for the wrongful death claim. The
Court held that this was so excessive as to constitute a miscarriage of
justice because the record was silent about the infant's potential
economic worth. The Court acknowledged the lack of ability to prove an
infant's economic worth, and noted that some recovery is appropriate
despite these uncertainties, but yet held that $450,000 was definitely a
product of passion, prejudice of partiality and set aside the award.
6. To whom amount recovered paid release of cancellation of judgment.
Payment must be made to the General Administrator not the Administrator Ad
Prosequendum.
N.J.S.A. 2A:31-6
When an action is commenced by an administrator ad prosequendum under
this chapter, no payment in settlement thereof or in satisfaction of a
judgment rendered therein shall be made to him, but such payment shall be
made only to the duly appointed general administrator of the estate of the
decedent, who has filed a bond or supplemental bond adequate to protect
the persons entitled to receive the amount so paid.
No release or cancellation of a judgment, whether by warrant or
otherwise, by an administrator ad prosequendum or by his attorney of
record or attorney in fact shall release the person making payment from
liability to the persons entitled to any intestate personal property of
the decedent, shall operate as a valid cancellation of the judgment or be
an authority to the clerk of any court to cancel the judgment of record.
II. DIRECT EXAMINATION OF A PARENT SETTING FORTH THE WRONGFUL DEATH
CLAIM FOR THE LOSS OF AN 8 YEAR OLD CHILD
1. Establish The Legal Parent Child Relationship
· Date of marriage of the parents
· Date of birth of the child
· Other children in the family
(establish chronological order)
2. Develop Parent Biographies (acorn philosophy)
· Education: Did one or both of the parents go to college or graduate
school?
· Employment: What kinds of jobs have the parents growing up and
currently - does father carry two jobs?
· Earnings/Savings: How much do the parents earn - are they savers -
how was the college fund for the child going to be funded - was the child
expected to get a job and contribute to the family income - paper route?
· Community Activities: Church, bingo, Jaycees (shows commitment to
helping the elderly and people in general)
3. Talk About The Parents - Grandparent Relationship (demonstrate
family harmony and projection of future denied potential)
· Living Arrangements: Do the grandparents live with the parents or
nearby to the parents?
· Financial Involvements: Do the parents help out their parents with a
weekly or yearly stipend?
· Shopping Responsibilities: Do the parents take the grandparents
clothes or grocery shopping or help carry in heavy bundles?
· Visitation Schedules: How often do the families see each other? Do
the parents stop in for coffee on a weekly or bi-weekly basis?
· Family Vacation Plans: Does the extended family take trips together
or do the children help transport the grandparents to the airport or visit
the grandparents in their winter habitat?
· Advice and Counsel: Who helps out on day to day or business decisions
- who has a few words of encouragement on down days and is there to cheer
on good days?
4. Talk About the Child's Achievements to Date of Death
· Infant development: A baby who walked at 8 months and talked in
paragraphs at one year
· Nursery school: Teacher evaluation showed a child with great
potential - began to develop leadership qualities and gain peer
friendships
· Religious school: Develop good religious training for people caring
· Organized clubs: Shows leadership and inter people relationships and
physical strengths
Cub Scouts
Pop Warner Football
Little League
Unorganized physical pursuits:
Street pick-up games
Bike riding
Baseball card trading
· Chores at home: What types of participation in family obligations was
this child demonstrating even at a young age
Clean room
Unload groceries
Help with dishes after meals
Takes Care of Family Pet:
Was he a caring responsible person
· General warmth towards people
5. Review Dependency of Parent-Child Relationship
· Bedtime Reading and Discussions: From what age did the parents begin
interacting on private time with this child - sharing input on day to day
activities and looking for analogies of future expectations
· Family Trips: How did this family spend their weekends and school
holidays - could we expect continued closeness among this family unit -
did all the children participate in the planning and preparations needed
for vacation time
· Tutoring Sessions: Did the child need extra help in school or did he
just like sharing what he was learning with his parents
· Advice and Counsel: Could one expect that the closeness developed at
this age would have continued into adulthood in a reciprocal type
relationship
· Family sing alongs: Demonstrate family dependency and unity through
activities
6. Set Forth Child - Sibling Relationship
· Early morning and after school games together
· Walk to school together
· Share clothes
· General closeness and confidence
· Planned a birthday breakfast for parent together
· Overnight camping together
7. Touch on Child - Grandparent Relationship
· Sleep over events
· Calls during the week to touch base
"Liked to comb grandparent's hair and make her tea with just the right
amount of milk and sugar added."
III. Green v. Bittner, The Seminal Case
In Green v. Bittner, 424 A.2d 210, 85 N.J. 1 (1980), the New Jersey
Supreme Court clarified what damages parents may recover for the wrongful
death of their child. Essentially, these damages are confined to pecuniary
loss; emotional loss may not be recovered. The Green court clearly held
that "[t]he emotional loss flowing from a loss of companionship and
society is still beyond the reach of any recovery in a wrongful death
action." Parents may recover for the loss of value of the child's
anticipated help with household chores and for the loss of anticipated
direct financial contributions by the child after becoming a wage earner.
In addition, parents may also be entitled to the pecuniary value of their
loss of the child's companionship, advice and guidance as they grow older.
Loss of Consortium
According to the Green, a remedy for loss of companionship must be
strictly limited to the pecuniary value of the services that the
companionship would have provided. Specifically, this value must be
substantially equivalent to the services provided by nurses or hired
companions who care for the aged and infirm. As the court indicates, these
"companions" would provide such services as providing and administering to
basic needs; preparing and serving meals; grocery shopping; and giving
medication. The financial value of the loss of companionship, however, is
limited to "what the marketplace would pay a stranger with similar
qualifications for performing such services."
Loss of Guidance and Advice
Recovery for loss of guidance and advice must also be confined to
pecuniary value. The Green court recognized that all persons need counsel
in particular situations for specific purposes. For instance, people need
assistance when facing a business decision or seeking relief from
depression. Recovery, however, is limited to that kind of advice or
guidance "that could be purchased from a business advisor, a therapist or
a trained counselor."
Damages and Proof Issues
Damages for loss of companionship, guidance, and advice are recoverable
without any showing that the child was likely to render such services. In
fact, if a normal parent-child relationship is found to exist, a jury
could find it sufficiently probable that, had the child lived, he would
have rendered the kind of companionship services and advice mentioned
above. "It will be up to the jury to decide what services would have been
rendered, and what their value is." In addition, "[t]here need be no
showing that companionship and advice will probably be purchased by the
parent because of the child's death; it is sufficient that the deceased
would have rendered them."
While the use of an expert is not legally required in these cases, it
is, as the court mentioned, helpful and desirable. Finally, an award of
actual pecuniary losses suffered will take into account the future cost
that would be incurred by the parents in maintaining the child.
IV. BASIC GROUND RULES FOR THE EXPERT
1. Damages should be discounted to present value. See Tenore v. Nu Car
Carriers, 67 N.J. 466 (1975), Matthews v. Nelson, 57 N.J. Super. 515, 520
(App. Div. 1959), certif. den., 31 N.J. 296 (1960). This rule recognizes
that the decedent's income would have been spread over his lifetime had he
lived. By discounting recovery to present value, plaintiff does not
receive the windfall which would otherwise inure. Fairness to defendant
demands this economic adjustment.
2. Experts may testify regarding expected inflationary trends. Since
the award of damages is intended to represent "current compensation for
future loss," failure to consider the effects of inflation would result in
an artificially low recovery. Tenore, 67 N.J. at 475. Recognizing the
relevance of inflation on the value of an award, the Court acknowledged
the usefulness of expert testimony to guide the jury in their assessment
of damages in spite of the concern that estimates of future inflationary
rates are speculative. Fairness to plaintiff demands this economic
adjustment. Defendant's rebuttal expert ensures a balanced presentation.
Tenore, 67 N.J. at 481.
3. The expert may not introduce tables into evidence purporting to
suggest an aggregate sum certain as an appropriate award. Tenore, 67 N.J.
at 482. The reduction of the expert's data to a sum certain assumes fact
finding and infringes on the province of the jury. Therefore, while the
expert may instruct the jurors regarding the proper method of calculation,
he may not perform those calculations. See also Lovenguth v. D'Angelo, 258
N.J. Super. 6 (1992); Dunn v. Praiss, 256 N.J. Super. 180 (App. Div.
1992). This, however, does not bar the attorney from making a bottom line
calculation in closing. Rather, the jurors must be free to factor in the
influence of any elements which might alter the quantification. "[T]he
projection of a gross figure before the jury submitted by an expert tends
to exert an undue psychological impact leading to the danger of its
uncritical acceptance by the jury in the place of its own function in
evaluating the proofs." Tenore, 67 N.J. at 482-483. Hence, the expert may
neither offer an opinion as to the value of the cause of action nor may
his data be abridged, converted to table, and submitted to the jury as
evidence.
4. Evidence regarding decedent's income tax liability is admissible.
Recovery should be based on the decedent's net income. Therefore,
decedent's tax liability is relevant to the jury's assessment of damages.
To ensure a more accurate estimation, defendant's may either cross-examine
plaintiff's witnesses or present their own extrinsic evidence of tax
liability. Tenore, 67 N.J. at 494-495. Plaintiff's are not entitled to the
windfall of an award calculated on gross income.
5. The court should instruct the jury that plaintiff's award is not
subject to income tax. Absent this information, the jury might increase
the award to off-set a supposed but non-existent tax liability. Tenore, 67
N.J. at 495. Therefore, for the same reasons that evidence of the
decedent's tax liability may be introduced into evidence, instructions
regarding the lack of such liability to plaintiffs is appropriate.
The rules taught in Tenore are still applicable. Since 1975, wrongful
death case law has evolved but not deviated from the basic propositions of
Tenore. More recent cases reiterate Tenore and address other related
issues.
The prohibition against allowing an expert to present specific
computations of aggregate damages to the jury and to introduce those
computations into evidence in the form of table was reaffirmed in Genovese
v. New Jersey Transit Rail Operations, Inc., 234 N.J. Super. 375, 379
(App. Div. 1989) certif. Den. 118 N.J. 195 (1989) and most recently in
Dunn v. Praiss, 256 N.J. Super. 180 (App. Div. 1992).
The Dunn court clarified the proper use of tables illustrating
mathematical formulas during the testimony of economic experts. The expert
may properly prepare and reference a table during his testimony to aid the
jury by illustrating the interrelationship of his data. However, such
tables are not properly admitted into evidence because the data contained
thereon is not a record of proven facts but a memorialization of "the
expert's opinion of the present value of future earning after enhancement
and deductions determined reasonable by the expert. Dunn, 256 N.J. Super.
At 199.
The rule of Tenore is somewhat modified when the issue of damages is
tried before a judge without a jury. While experts are prohibited from
explicitly quantifying damages in wrongful death cases tried before a
jury, it is within the trial court's discretion.
V. SAMPLE ARGUMENT TO ESTABLISH THAT WRONGFUL DEATH CLAIM AND SURVIVAL
CLAIM ARE EACH AFFORDED SINGLE LIMIT COVERAGE.
I. THE WRONGFUL DEATH ACTION IS A SEPARATE AND DISTINCT CAUSE OF ACTION
FROM THE SURVIVAL ACTION.
As recently as June of 1998, our Appellate Division in Smith v.
Whitaker, 313 N.J. Super. 165 (App. Div. 1998) confirmed that a wrongful
death action was distinct from a survival action. The court stated:
In Alfone v. Sarno, 168 N.J. Super. 315, 403 A.2d 9 (App. Div. 1979),
modified on other grounds, 87 N.J. 99 432 A.2d 857 (1981), we said:
The Wrongful Death Act is distinct from the so-called "survival
action," N.J.S.A. 2A:15-3, which gives executors or administrators a right
of action for tortious injury or damage to the deceased or his property
incurred prior to death. N.J.S.A. 2A:15-3. In the usual case, both actions
are joined.
See Alexander v. Whitman, 114 F.3d 1392, 1399 (3rd Cir.) Cert. Denied,
U.S., 118 S. Ct. 367 139 L. Ed.2d 286 (1997).
See also Lombardi v. Simon, 266 N.J. 708 (Law Div. 1993) and Cockinos
v. GAF Corp., 259 N.J. 204 (Law Div. 1992).
Id. At 318:
The Smith court cited Alfone v. Sarno, 168 N.J. Super. 315 (App. Div.
1979) which further explained this point:
The Wrongful Death Act is distinct from the so-called "survival
action," N.J.S.A. 2A:15-3, which gives executors or administrators a right
of action for tortious injury or damage to the deceased or his property
incurred prior to death. N.J.S.A. 2A:15-3. In the usual case, both actions
are joined.
It is, therefore, clear that our Wrongful Death Act created a separate
cause of action for the loss suffered by designated beneficiaries. That
the act, like Lord Campbell's Act, created a new cause of action, distinct
from the survival action, was most forcefully observed in Cooper v. Shore
Electric Co., supra, 63 N.J.L. at 563-64, where the court of Errors and
Appeals in so concluding quoted from Lord Blackburn's observations while
construing Lord Campbell's Act in the House of Lords in Seward v. Vera
Cruz, 10 App. Cas. 59, 70-71 (1885), that it is "an action which is new in
species, new in its quality, new in its principles, in every way new."
Id. At 323.
The Alfone court clearly considered whether the wrongful death claim
was derivative:
As noted above, the basic problem is to determine whether the death
action is derivative from and dependent upon the existence of a viable
cause of action in the deceased as of the time of death or whether it is
independent thereof.
Id. At 324.
The Court held:
We therefore accept the view that the statutory terminology means
nothing more than that where a person has been injured by a tortious act
which later causes his death, the beneficiaries under the wrongful death
act have a separate and independent right of action, qualified only by the
strong policy against the recovery of duplicate damages. To the affect
that the New Jersey courts have recognized that the beneficiary's claim
under the Wrongful Death Act is an independent cause of action and "not a
derivative of the decedent's personal injury claim."
Id. At 328. (emphasis added)
In Gangemi v. National Health, 291 N.J. Super. 569 (App. Div. 1996),
the Appellate Division held that the sister of the decedent had standing
to bring a wrongful death claim. This is further confirmation that a
wrongful death claim is separate and distinct from the survival action.
II. THE WRONGFUL DEATH CLAIM AND SURVIVAL CLAIM ARE EACH AFFORDED
SINGLE LIMIT COVERAGE.
In Defelice v. Beell, 274 N.J. Super. 592 (App. Div. 1994), the
plaintiffs contended that each dependent had an independent cause of
action. (This is not plaintiff's contention in this case).
The Court held that all dependents' claims under the Wrongful Death Act
are brought in a single claim.
The Court stated:
The same is true with respect to a claim made under the Wrongful Death
Act. The cause of action for those suffering pecuniary loss is brought by
a single party as administrator ad prosequendum or executor. N.J.S.A.
2A:31-2. An individual dependent has no separate cause of action under the
Act. Schueler v. Strelinger, 43 N.J. 330, 349, 204 A.2d 577 (1964).
Id. At 598.
We hold that where one person is injured and dies from injuries
sustained in an automobile accident, the loss of care, guidance, advice
and services claims of the dependents are subsumed in a single action
under the Wrongful Death Act, and are components of a single pecuniary
loss claim. The claim of the administrator ad prosequendum or the executor
is subject to the per-person limit of the policy.
Id. At 598.
The court was clear that where claims are derivative, like a loss of
consortium claim by a spouse, they are subject to the same per person
policy limit as the injured person.
However, where there is a wrongful death claim and a personal injury
claim, they each are afforded single limit coverage.
The court stated:
Under our case law, the wrongful death claim and Mrs. Thompson's
personal injury claim would have each been afforded single-limit coverage.
See Wolfe v. State Farm Ins. Co., supra, 224 N.J.
In Wolfe v. State Farm Ins. Co., 224 N.J. Super. 348 (App. Div. 1988),
the Appellate Division held where the claim is separate, like an emotional
distress claim, per-accident policy limits were available instead of per
person. The Court held:
We are persuaded that, in New Jersey, a cause for emotional distress is
a separate action, not a derivative claim and that plaintiff's insurance
contract construction must prevail. Gencolvez v. Patuto, supra, 188 N.J.
Super. At 628. Moreover, the term "bodily injury" encompasses a claim for
emotional distress. NPS Corp. V. Insurance Co. of North America, supra,
213 N.J. Super. At 554.
Id. At 354.
CONCLUSION
In summary, plaintiff's wrongful death claim is a separate and distinct
claim. It is brought by a single administrator ad prosequendum or executor
on behalf of the beneficiaries. Separate and distinct claims, like
wrongful death claims are afforded their own single limit per person
coverage.
Therefore, plaintiff is entitled to $25,000 for the decedent's survival
action and $25,000 for the decedent's wrongful death claims.
