Excerpt from Chapter 9: Hedonic Damages
Economic/Hedonic Damages: The Practice Book for Plaintiff and Defense Attorneys
by Michael L. Brookshire and Stan V. Smith
Since 1937 in Rose v. Ford,7 English courts have allowed a separate recovery for the “loss of expectation of life.”
In the U.S., in some states such as Connecticut,8 the state supreme court has interpreted the wrongful death statutes to explicitly allow for the loss of the value or pleasure of life itself. Many states have statutes which are broadly worded, allowing juries to award for losses “they shall deem fair and just.”
This language is general enough to allow the jury to render an award for the loss of the pleasure of life, separate from monetary losses, as an element of damages. At least one state supreme court (that of Mississippi),9 has recently interpreted its statue to expressly mean so.
In other states, such losses can be recovered, but only if the victim is conscious of the loss.10 This restriction can imply that the worse the harm, the less the claim for damages.
Such a position lends support to the complaint that in some jurisdictions it is cheaper to kill than to maim.
As a result, several other states’ courts have explicitly rejected the requirement that the victim be conscious of the loss. Recovery for the loss of the pleasure of living is also actionable under Section 1983 of Title 42 of the United States Code, which provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.
Chapter 12 provides an analysis of various state injury and wrongful death statutes, and elements of damages recoverable under such statutes, along with citations for many supporting cases.
In the past, the law has been generally conservative in allowing for full compensation in wrongful death cases — there has been a reluctance to allow for the recovery of intangible damages. Perhaps this was so because, as with household services, there is no monetary loss that one can measure — the value of the loss must be inferred.
However, over time the attitude of courts has changed. Today, claims for the inferable value of lost services are routine. More recently, the courts seem to be generally moving toward a measure of compensation for wrongful death and injury which includes the loss of the pleasure of life.
The notion that a human being is worth what we can directly measure as the financial value of his or her work is being aggressively challenged, in part by the use of hedonic testimony. However, the admission of hedonic testimony in courts is by no means unchallenged.
Proponents argue that if the hedonic damages are disallowed, all things being equal, the life of a working mother, for example, would be valued more highly than that of a mother who spent considerable time at home and donated time as a volunteer in the community.
Justice Richard Posner of the U.S. Court of Appeals for the Seventh Circuit has observed that courts have “generally resolved the vexing problem of the proper valuation of life by ignoring it.”11
He adds that by valuing only the lost labor component (now routinely including household services), courts are saying that people do not derive any utility from their non-working life.
Challengers of this testimony argue that we as a society cannot afford to fully compensate for the intangible loss of life. They further argue that such testimony tends to invade the province of the jury and unreasonably inflate awards.
Also, they believe that there is no point in compensating an estate or survivors for a dead person’s loss of the pleasure of life since the survivors themselves have not experienced the loss of the value of life.
It seems beyond argument that we do value our non-working life. Because this value does not have an observable price does not mean the value cannot be measured.
We do not sacrifice life casually, nor do we spend all of society’s resources to save a single life. It seems likely that many of the issues raised by proponents and challengers alike will continue to be debated for some time to come.
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7 – A.C. 836 (1937).
8 – Katsetos v. Nolan, 170 Conn. 637, 368 A 2d 172 (1976).
9 – McGowan v. Estate of Wright, 524 So. 2d 308 (Miss., 1988). The majority holding on this point is, peculiarly, contained in the dissenting opinions which were joined in part by members of the majority.
10 – McDougald v. Garber, 73 N.Y. 2d 246. The court also held that the loss of the pleasure of life is an element of pain and suffering.
11 – Richard A. Posner, Economic Analysis of Law, Little, Brown and Company, 1986, p. 182.