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TEXT Wrongful death cases are complicated matters. If someone you
love has died as a result of negligence, consult a personal injury
attorney. If an injury case is not the type Kenneth Vercammen, Esq.
can handle, we will try to refer you to another competent trial attorney.
In a Wrongful death jury trial in New Jersey, we [ your trial attorney]
will research the current caselaw. As of 2003, the following a some
of the instructions the trial judge will read to the jury, prior
to the jury deciding damages [the money award]:
The plaintiff brings this lawsuit as the representative of the
survivors of the decedent and seeks to recover damages from the
defendant contending that defendant's fault was responsible for
the death of the decedent. The money damages sought on behalf of
the survivors of the decedent represent the actual pecuniary or
financial loss which plaintiff contends has been and will in the
future be suffered by the survivors due to the death of the decedent.
This claim for pecuniary or financial loss is distinguished from
any physical injuries or suffering that may have been sustained
by the decedent, such as any pain and suffering or disability sustained
by the decedent. In the event that you find in favor of the plaintiff,
that is, that the defendant was at fault, which fault was a proximate
cause of plaintiff decedent's death, you must limit your consideration
to whatever financial loss was suffered by the survivors as measured
by what they would have received from the decedent within a reasonable
degree of probability if the decedent had survived. I instruct you
that the pecuniary injuries or money losses in this case should
not include emotional distress, anguish, grief and sorrow or loss
of emotional satisfaction derived from the society and companionship
of the decedent. These matters, though real and very distressing,
cannot be considered in determining the extent of the financial
or pecuniary loss suffered by the survivors who are represented
in this action by the plaintiff. The financial loss does include,
however, not only actual monies which would have been contributed
to or earned for the benefit of the survivors, but it also includes
the reasonable value of benefits which would have been received
in the nature of services, assistance and care as well as training,
guidance and counsel that the decedent's survivors (such as children,
parents or spouse) would have received had the decedent lived. To
determine the amount of damages to be awarded, i.e., the extent
of the financial loss caused by the premature death of the decedent,
all circumstances and probabilities which bear upon that financial
loss may be considered. The following are factors that you may weigh:
1. You may consider the age and general state of health of the decedent
and of the survivors. [You will recall that there was testimony
concerning their life expectancies as of the date of the decedent's
death (and the decedent's work life expectancy). These figures are
in evidence and are assumptions based on probable length of life
which have been computed from statistical data. They are general
rules and you should therefore use them with caution in any individual
case. Except for this incident the decedent might have lived much
longer than estimated by the actuarial period of time. You should
consider the expectancy figures in your determination of damages,
if any, to be awarded for financial losses in accordance with my
instructions in this case, but you must exercise your sound judgment
in computing them. Do not treat them as a necessary or fixed rule.]See
footnote 1 2. You should consider the net earnings of the decedent
after taxes as of the time of his/her death. You should give due
regard to any evidence concerning [the decedent's income tax liability
and you should also consider]See footnote 2 the decedent's potential
future net income during the balance of his/her working life expectancy.
The reason for considering net income is that only that portion
of his/her income after taxes, not gross income, would have been
available for the benefit of the decedent's survivors who are represented
by the plaintiff in this case.
[Add where decedent is a minor child:
In this case, since the decedent is a minor child, you, the jury,
should consider the value of the reasonably anticipated direct financial
contributions which would have been made by the child to the survivors
after he/she became a wage earner. You should also take into consideration
any actual financial contributions, if any, which the decedent,
while living, may have made to the survivors in determining the
pecuniary loss to them. ] 3. You should also consider the decedent's
own personal expenses. Therefore, it is necessary that you find
to what extent the net earnings of the decedent were necessary for
his/her own use, maintenance and personal needs. In determining
the pecuniary loss of the survivors there must be deducted from
the net earnings of the decedent whatever sums fairly represent
expenses for his/her own maintenance since it is obvious that these
monies could not have been used for the benefit of the survivors.
4. You may also consider the benefit given by the decedent to a
survivor or survivors in the form or services or assistance rendered
by the decedent and in guidance and training which may have been
offered by the decedent to the survivors. You must determine the
reasonable value to be placed on the services or benefits that will
be lost by reason of the death of the decedent.
[Add where decedent is a minor child:
In this case, since the decedent is a minor child, your assessment
of damages for the loss of services and assistance may be somewhat
complicated, so let me elaborate on this point further. In addition
to the loss of anticipated direct financial contributions from the
decedent to the survivors which I noted previously, you, the jury,
should also consider the pecuniary value of the loss of the child's
anticipated services to the survivors, such as household chores
and baby-sitting for younger siblings, for example. You should also
consider the value of the parents' [or other survivors, where applicable]
loss of the child's care, companionship, advice and guidance as
they grow older. You must remember, however, that your award for
damages for these losses will be confined to their pecuniary value,
excluding emotional loss. With respect to companionship, care, and
advice you must initially distinguish between their emotional value
and their pecuniary, or economic, value. We recognize that children
may prove valuable services such as companionship, care, advise
and guidance over time as the parents face advanced age or declining
health.
Care and companionship, lost by death, to be compensable must be
that which would have provided services substantially similar to
those provided by the "companions" or "homemakers"
often hired today by the aged or the infirm, or substantially equivalent
to services provided by nurses or practical nurses. [Companionship
in this sense, however, will not include true nursing services unless
the decedent had or was likely to have special training.] The value
of these services must be confined to what the marketplace would
pay a stranger with similar qualifications for performing such services.
[In interpreting the criteria or "similar qualifications"
you may also attach a pecuniary value to the knowledge of the parents'
likes, dislikes and habits which the decedent may have possessed.]
Remember, however, that no pecuniary value may be attached to the
emotional satisfaction gained by the parent when the child performs
these services.) The loss of the decedent's guidance, advice and
counsel to the survivors is likewise to be confined to its pecuniary
element. It is not the loss simply of the exchange of views, no
matter how perceptive, when the child and parent (or other survivor,
where appropriate) are together; it is certainly not the loss of
pleasure which accompanies such an exchange. Rather, it is the loss
of guidance, advice and counsel which all of us need from time to
time in particular situations, for specific purposes, perhaps as
an aid in making a business decision, or a decision affecting one's
life generally, or even advice and counsel needed to relieve depression
or personal dilemmas. It must be the kind of advice and guidance
that could be purchased from a business advisor, a therapist, or
a trained counselor, for instance. Now, taking the foregoing principles
into consideration, it is up to you, the jury, to decide what services
the decedent would have rendered to the survivors, and what the
value of these services is. In doing so, remember that there need
be no proof that the parents (or other survivors, where appropriate)
will probably purchase such companionship and advice; it is sufficient
that the deceased would have rendered them if he/she had lived.
5. In considering those various factors, and in ascertaining the
probabilities of pecuniary loss, you should also consider the decedent's
personality and character, his/her habits and customs and the relationship
that existed between the decedent and the survivors. If you find
that plaintiff is entitled to an award, the amount that is recoverable
is comprised of two parts: (a) the amount of the loss to date; and
(b) the present value of future financial loss.
However, you will announce your verdict in one lump sum of money
totaling these two parts. The first thing that you must determine,
once you have decided that the plaintiff is entitled to recover,
is the amount of the financial loss from the date of death to the
present date. To do this you must agree on an amount which will
represent the loss sustained by the survivors each year, and simply
add these amounts for each year elapsed since the date of decedent's
death to the present time. The next determination you must make
is the present value of the loss that may reasonably be anticipated
from this time on into the future. This computation is a little
more complicated. In arriving at such present value of future loss,
it would be improper to take the amount of loss, such as a certain
number of dollars per year, and simply multiply that amount by the
number of years which you find constitutes the time that the decedent
would have continued to contribute to the survivors. The reason
for this is that if plaintiff is entitled to an award, the survivors
will receive their award of damages in one lump sum, whereas, had
the decedent lived, the financial contribution to the survivors
would have been spread over a period of time. A sum of money due
at some future time is worth less today because, if paid today in
a lump sum rather than in installments, the lump sum received today
can be invested to earn interest. For example, if you were to determine
that the amount of survivor's yearly loss was $100 and that this
loss would extend over a period of 10 years and then you simply
multiplied $100 x 10, your award of $1,000 would be too much. This
is so because the lump sum awarded now can be invested and produce
interest income. Such an award, therefore, would have a greater
value than just $100 a year. It would have a value of $100 a year
plus the interest. Therefore, if you were to make an award (merely
by multiplying $100 x 10 years), the survivors would receive more
than their actual loss, or $1,000 plus the interest it would earn.
For this reason, the proper method of determining the present value
of future losses requires that the total amount of future losses
be reduced by a certain amount. This is done by making an allowance
for the interest that this total sum of money would earn for such
period of time. This allowance is calculated by a process called
discounting or reducing the total future financial losses during
the period of expectancy by applying a fixed interest figure. In
other words, you should determine the amount of survivor's yearly
loss, if any, and then award a lump sum which when invested will
pay out from that lump sum, plus the interest it will earn, an amount
equal to the yearly loss to the survivor. Furthermore, the fund
you create must be completely used up or exhausted at the end of
the period of the loss. In making this computation you may also
take into account the extent to which inflation will probably reduce
the value of money during the period of the loss. You may determine
to what extent the purchasing power of the dollar will be recovered
because of inflation, you should increase the total amount of your
award for anticipated future financial losses in order to offset
the extent by which inflation will reduce the value of the dollar
in the future. You should also know that any award you may make
is not subject to Federal income tax. However, the interest earned
on the amount of your award will be subject to income taxation.
And, therefore, you should increase the fund to account for the
survivors' increased tax liability. So, in evaluating future losses,
there are several factors which should be considered by you in arriving
at your computation of future losses. Remember with respect to future
losses that you are creating a present fund which will be used to
pay plaintiff from the principal sum and the interest it earns in
an amount equal to a survivor's yearly loss so that at the end of
the period of time you determine this loss will be sustained, the
fund plus the interest will be used up. Let me repeat the factors
you should consider when determining an amount to compensate plaintiff
for future losses: (1) The amount of the survivor's yearly loss.
(2) The period of time over which said loss will be incurred in
the future, i.e., from today's date forward for that period of time
you determine to be the balance of decedent's work life expectancy.
(Remember you will have already determined the loss from the date
of death to today). (3) That the fund should be discounted to reflect
the interest the fund will earn. (4) The extent to which inflation
may or may not affect the value of the financial loss. (5) That
no income tax will be imposed on the sum awarded but that the interest
earned by the fund will be subject to Federal income tax. I am now
going to give each of you a sheet of paper which contains a step
by step illustration of how to compute the present value of a survivor's
future pecuniary loss. The sheet also contains an example from an
imaginary case to show you how the various formulas are applied.
Keep in mind that the numbers used in the example are not taken
from this case and are not intended to suggest what figures you
should use. The amount of any given survivor's financial loss, interest
rates and discount rates must be based upon your own sound judgment
resulting from your understanding and analysis of the evidence in
the case as well as your collective experience and common sense.
[An expert testified as to his/her analysis of future wage increases
and discount rates relative to inflation and gave you his/her opinion
of what the discount and inflation rates should be in this case.
giving due regard to his/her credibility, you may use those trends
and rates in arriving at your own independent single appraisal of
the survivors' actual pecuniary losses].See footnote 3 Arriving
at a figure that represents the plaintiff's financial and pecuniary
loss due to the decedent's premature death is difficult. Remember
that your decision should be based upon your own common sense judgment
of the amount of money and the value of services and guidance decedent
would have contributed to the welfare of the plaintiff.
Thus, to recapitulate, if you find plaintiffs are entitled to an
award based upon the rules of law I have given you, then in determining
the amount of award because of the premature death of decedent you
must first determine the amount of financial loss suffered from
the date of death to the present time. To arrive at that figure
you must add the amount of plaintiff's yearly loss for the number
of years from the date of death to the present time. Next, you should
add to that amount a sum which represents the future loss from today
calculated in accordance with my instructions.
COMPUTATION OF PRESENT VALUE OF FUTURE FINANCIAL LOSS:
1. Insert here the total amount of money the survivor has lost
by reason of the death. $______ 2. Insert here the average annual
rate of interest for the period of the survivor's loss. _______%
3. Insert here the amount of money which is necessary to be invested
at the rate determined in 2. in order to yield the loss determine
in 2. [Formula: Subtract the rate set forth in 2. from 100%. Then
multiply the number in 1. by that percentage]. $______ 4. Insert
here the average annual rate of inflation for the period of the
survivor's loss. __________% 5. Insert here the amount of money
necessary to add to the survivor's loss to account for inflation.
[Formula: Multiply the inflation factor in 4. by the loss set forth
in 1.] $__________ 6. Insert here the amount of money necessary
to compensate the survivor taking into consideration both investment
and inflation factors. [Formula: Add 3. to 5.]. $__________
Example: Assuming a loss to the survivor of $1,500/year for four
years with an average interest rate of eight percent and an average
inflation rate of six percent: Step One: $1,500/year x four years
$6,000
Step Two: Interest rate (averaged for four years) 8%
Step Three: (100% - 8% = 92%) ($6,000 x 92% = $5,520) $5,520
Step Four: Inflation rate (averaged for four years) 6%
Step Five: ($6,000 x 6% = $360) $ 360
Step Six: ($5,520 + $360 = $5,880) $5,880
Footnote: 1 This passage in brackets should be used only where
evidence of the decedent's work life has been offered or where evidence
of a survivor's life expectancy is relevant to a determination of
pecuniary loss and the Court has been asked to take judicial notice
of the life expectancy tables.
Footnote: 2 In the event that no evidence has been produced as
to decedent's income tax liability, the trial judge should consider
whether this phrase should be included in the charge.
Footnote: 3 The Committee expresses no opinion as to the need for
expert testimony on interest (discount) or inflation factors. It
recognizes that cases involving wrongful death claims are tried
without expert testimony. The charge is structured to be used in
either event.
The Committee also acknowledges that Matthews v. Nelson, 57 N.J.
Super. 515 (App. Div. 1959) permits the use of annuity tables contained
in the Civil Practice Rules. Those tables express certain interest
rates but no corresponding inflation factors.
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