Calculation of Damages


The damages assessed by a jury in a wrongful death action are punitive in nature and are not intended to be compensatory.  The damages assessed in a wrongful death action are imposed against the tortfeasor:

  • for the purpose of preserving human life,
  • to punish the tortfeasor for the wrongful act, and
  • to deter the tortfeasor and others from similar conduct in the future[i].

Under a statute, limiting the recovery to pecuniary loss of the designated beneficiaries, it is necessary that they suffer a pecuniary loss from the death, in order to sustain a recovery of more than nominal damages[ii].  It is generally held that the damages are the aggregate of the pecuniary losses of each of the beneficiaries, and are measured by, and limited to, the pecuniary benefits that the beneficiaries might reasonably be expected to have derived from the decedent had his or her life not been terminated[iii].  The loss sustained by a beneficiary is fixed as of the date of the death of the decedent[iv].

After Lord Campbell’s Act, it is the injury to the survivors that is the foundation of damages in an action under a wrongful death statute[v].  However, under some statutes, the measure of damages has been characterized as the economic value of the decedent’s life[vi].

Under some statutes, juries are authorized to make fair and just determination on recovery of damages[vii].  Therefore, damages for losses other than pecuniary losses may be included[viii].  In such cases, damages are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society, and protection[ix].

With respect to an award that becomes a part of the decedent’s estate, the amount has sometimes been measured as the pecuniary loss to the estate caused by the death[x].  Under survival statutes, the damages recoverable are represented by the present worth of the net value of what would have been the estate of a decedent had s/he survived[xi].  They are to be measured by deducting from what his or her earnings would have been during the period of his or her life expectancy, the probable cost of his or her maintenance, and then reducing the amount to its present worth[xii].

The measure of damages is commonly described as the present value, to those entitled to recover, of the reasonable expectations of pecuniary advantage that they have lost by the death[xiii].  The principle of reduction to present value has been applied to damages awarded for the benefit of the decedent’s estate[xiv].  However, damages for loss of society, pain and suffering, and other non-economic damages cannot be determined with any arithmetic certainty[xv].

The measure of damages pertains to the substantive, rather than to the merely remedial right of the person by whom or for whose benefit the action is brought and the lex loci delicti commissi controls[xvi].  Otherwise, the measure of damages in a wrongful death case is procedural and the lex fori is determinative of the elements and measure of damages[xvii].

The fact that under the lex loci delicti, the damages recoverable are limited to a fixed sum, whereas under the lex fori there is no arbitrary limitation on the amount recoverable, and vice versa, does not preclude the maintenance of a wrongful-death action[xviii].  In some cases, the fact that the law of the state of wrong limited the amount of the recovery, whereas the law of the forum did not, has been held to preclude enforcement of the foreign statute[xix].

[i] Ex parte Cincinnati Ins. Co., 689 So. 2d 47 (Ala. 1997)

[ii] Central Vermont R. Co. v. White, 238 U.S. 507, 35 S. Ct. 865, 59 L. Ed. 1433 (1915)

[iii] In re Riccomi’s Estate, 185 Cal. 458, 197 P. 97, 14 A.L.R. 509 (1921); Kansas City Southern R. Co. v. Leslie, 238 U.S. 599, 35 S. Ct. 844, 59 L. Ed. 1478 (1915); American R. Co. of Porto Rico v. Didricksen, 227 U.S. 145, 33 S. Ct. 224, 57 L. Ed. 456 (1913); Michigan Cent. R. Co. v. Vreeland, 227 U.S. 59, 33 S. Ct. 192, 57 L. Ed. 417 (1913);

[iv] Prauss v. Adamski, 195 Or. 1, 244 P.2d 598 (1952).

[v] Meekin v. Brooklyn Heights R. Co., 164 N.Y. 145, 58 N.E. 50 (1900)

[vi] Lane v. United Elec. Light & Water Co., 90 Conn. 35, 96 A. 155 (1915)

[vii] Boroughs v. Oliver, 226 Miss. 609, 85 So. 2d 191 (1956);.Illinois Cent. R. Co. v. Barron, 72 U.S. 90, 18 L. Ed. 591 (1866)

[viii] Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91 (1908);

[ix] Benwell v. Dean, 249 Cal. App. 2d 345, 57 Cal. Rptr. 394 (1st Dist. 1967)

[x] Nicoll v. Sweet, 163 Iowa 683, 144 N.W. 615 (1913)

[xi] De Toskey v. Ruan Transport Corp., 241 Iowa 45, 40 N.W.2d 4, 17 A.L.R.2d 826 (1949)

[xii] Murray v. Philadelphia Transp. Co., 359 Pa. 69, 58 A.2d 323 (1948)

[xiii] Arizona Binghampton Copper Co. v. Dickson, 22 Ariz. 163, 195 P. 538, 44 A.L.R. 881 (1921)

[xiv] Florida Cent. & P.R. Co. v. Sullivan, 120 F. 799 (C.C.A. 5th Cir. 1903)

[xv] Drews v. Gobel Freight Lines, Inc., 144 Ill. 2d 84, 161 Ill. Dec. 324, 578 N.E.2d 970 (1991)

[xvi] Northern Pac. R. Co. v. Babcock, 154 U.S. 190, 14 S. Ct. 978, 38 L. Ed. 958 (1894)

[xvii] Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961);.Fabricius v. Horgen, 257 Iowa 268, 132 N.W.2d 410 (1965);.

[xviii] Barkanic v. General Admin. of Civil Aviation of the People’s Republic of China, 923 F.2d 957 (2d Cir. 1991); La Prelle v. Cessna Aircraft Co., 85 F. Supp. 182 (D. Kan. 1949).

[xix] Ash v. Baltimore & O. R. Co., 72 Md. 144, 19 A. 643 (1890).