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
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.