Part of the damages that can be claimed in a wrongful death action in New Hampshire are

loss of life damages. When wrongful death claims go to a jury, the jury is instructed that it can

compensate the decedent’s estate for such damages. Trial courts are permitted to instruct the jury

that a plaintiff can recover separate damages for the decedent’s loss of life, distinct from damages

for lost earning capacity or reasonable expenses resulting from the decedent’s death. See RSA

556:12. Here is a typical jury instruction:

“The estate of __________________ is entitled to be compensated for the loss of life,

meaning the probable length of ________________________’s life but for the injury. It

is entitled to be compensated for the shortening of his life. In other words, there should

be compensation awarded by you, after due consideration of the evidence, which

recognizes ______________________’s inability, by virtue of his shortened life, to

carry on and enjoy a life in a way he would have had he lived. Once again, if you find

that the estate is entitled to be compensated, you have to assess what this amount would

appropriately be.”

New Hampshire’s wrongful death statute is codified at RSA 556:12. That statute states:

“If the administrator of the deceased party is plaintiff, and the death of such party was

caused by the injury complained of in the action, the mental and physical pain suffered

by the deceased in consequence of the injury, the reasonable expenses occasioned to

his estate by the injury, the probable duration of his life but for the injury, and his

capacity to earn money during his probable working life, may be considered as

elements of damage in connection with other elements allowed by law, in the same

manner as if the deceased had survived.”

In Marcotte v. Timberlane/Hampstead School Dist., 733 A.2d 394, 143 N.H. 331 (N.H.

1999), the New Hampshire Supreme Court decided that in wrongful death actions, the estate was

entitled to recover damages for loss of life. In that case, the court concluded that the phrase “the

probable duration of his life but for the injury” – in RSA 556:12 – permits such a recovery.

Where the decedent’s death “was caused by the injury complained of in the action,” the “probable

duration of his life but for the injury” may be considered as an element of damages in addition to

the other enumerated damage elements: mental and physical pain suffered by the deceased,

reasonable expenses occasioned to the decedent’s estate, and probable future lost earnings. The

court went on to say that:

If duration of life is to be considered as an element of damages, then its constitutive

factors, such as quality of life, can also be considered in assessing such damages.

Hedonic damages allow a decedent’s estate to recover for the life expectancy a decedent

would have enjoyed but for the untimely death caused by the defendant. For example, for a male

born October 25, 1996 who died on August 14, 2014 (age 17 years, 10 months), his life

expectancy is approximately 64.6 years.1

The phrase “the probable duration of his life but for the injury” refers to the likely length

of the decedent’s life if the injury had not occurred, that is, the life that the decedent lost as a

result of the injury. That much is known; however, what is relatively unclear is the “precise

nature of the attributes of life to be considered and calculations performed in order to estimate

damages for loss of life.” This is the same imprecision that afflicts all non-economic damages;

that is, what inflicts damages that don’t have a direct connection to a dollar sign.

Triers of fact (judges and juries) are entrusted with the difficult task of translating noneconomic

damages of all kinds into dollars. This includes hedonic damages. Justice is

sometimes done is a crude way, but it is nevertheless done.

In the Marcotte case, the court indicated that the decedent’s computer diary and various

photographs depicting the decedent and his belongings were admissible to prove loss of life

damages. Accident photos were also allowed into evidence. The issue turned on what constituted

relevant evidence. Evidence is relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” N.H. R. Ev. 401. Evidence which is not relevant is inadmissible.

N.H. R. Ev. 402. The determination of whether evidence is relevant is within the sound

discretion of the trial court. Although relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury. N.H. R. Ev. 403.

In weighing the computer diary’s probative value against its prejudicial effect, the court in

Marcotte found the diary highly probative of the decedent’s lost earning capacity, creativity, and

ability to process the English language. The diary was found to have highlighted the decedent’s

activities and showed what activities the decedent enjoyed. The court said that the diary went

“right to the heart of hedonic damages.” The court also examined photographs of the decedent,

his home, and his family from the time he was born through the last years of his life. The court

then made decisions as to which photographs had more probative value than prejudicial effect.

In the end, the court found admissible those photographs that highlighted the decedent’s activities

and achievements during the last few years of his life, focusing on his participation in various

activities (e.g., karate, T-Ball, and football). The court found that these photographs provided

admissible evidence of the value of the decedent’s lost life. The admitted photographs depicted

the decedent’s abilities and physical health – probative of the issue of damages.

With respect to accident scene photographs, a similar balancing test was conducted. In

Marcotte, the court admitted four photographs. Two of them depicted a soccer goal, another

depicted the goal and a bloody spot, another one depicted the bloody spot only. In each instance,

the court determined that the photographs were helpful to the jury in understanding the

mechanism of the accident and resulting death.

1, Taken from tables on Social Security Online.

In Marcotte, the plaintiff put in proof of funeral expenses. The plaintiff also put in proof

from an economist showing the loss to the decedent’s estate as a result of the decedent’s lost

earning capacity. Loss of life damages were offered that supported the economist’s opinion.

No one has ever devised a way by which compensation for the loss of life can be

determined with precision. This hasn’t been done for pain and suffering and it hasn’t been done

with loss of life damages. Triers of fact – judges and juries alike – have to use their common

sense in relating these damages to dollars. In the end, wrongful death damages address the injury

to the person and to the estate of the deceased. Tort damages (negligence is called a tort) are

available to “to make the plaintiff whole again.” The goal is to restore the person wronged “as

nearly as possible to the position he would have been in if the wrong had not been committed,”

Smith v. Cote, 128 N.H. 231, 243, 513 A.2d 341 (1986). Wrongful death damages and

compensatory damages (a term applied if the decedent had lived) are, more or less, identical

(although there are likely some differences).

In Marcotte, the court declined to “determine the nature or scope of the hedonic element,

if it exists, encompassed by the phrase, ‘other elements provided by law.'” The court has since

determined that issue. In Bennett v. Lembo, 761 A.2d 494, 145 N.H. 276 (N.H. 2000), the court

said that loss of life damages –

“connote[ ] the deprivation of certain pleasurable sensations and enjoyment through

impairment or destruction of the capacity to engage in activities formerly enjoyed by

the injured plaintiff.”

What is it, then, that gave the decedent pleasure and enjoyment? What was their life all

about and what gave it meaning? The Bennett court indicated that the capacity to enjoy life is an

attribute of an ordinary healthy individual. The loss of that capacity is at least as serious an

impairment as the permanent destruction of a physical function.

Proving loss of life damages is not an exact science, but neither is proving pain and

suffering. The fact that proving something is challenging doesn’t mean it can’t be done.