One of the more difficult things that personal injury attorneys have to do is to explain to the family of someone who has died as a result of the negligence of another, how New Jersey law values their loss. Imagine that a loved one – a mother, father, child or spouse – has died as a result of an automobile accident or medical mistake. What would you consider to be the most significant element of damages for this loss? Most people would say that the loss of a special person causes great pain and suffering as well as psychological pain to those who are left behind. The unique characteristics of the loved one which made him her or her so special would also be mentioned. Unfortunately, these very real factors in the loss of a loved one have no value under New Jersey law, much to the shock and chagrin of those who are suffering as a result of the loss.

Wrongful death claims in New Jersey are controlled by a statute – N.J.S.A. 2A:31-1 – as they are in all states, because wrongful death claims are not found in the common law and are purely creatures of statute. New Jersey’s Wrongful Death Act is a “pecuniary loss only” statute, which recognizes as elements of loss the dollar value of the lost contributions to the family unit, and nothing else. New Jersey courts have urged the legislature to amend this statute to more accurately reflect the actual losses sustained in the case of a wrongful death, but the legislation remains the same. In point of fact, both the New Jersey Senate and Assembly passed a wrongful death bill several years ago, but it died on the governor’s desk when he refused to sign it. This antiquated law has caused numerous unjust results, and ultimately caused the New Jersey Supreme Court to engage in Solomon – like behavior in an attempt to reconcile a very difficult situation, in Green v. Bittner, 85 N. J. 1 (1980).  In this tragic case, a young woman about to go away to college died in an automobile accident. Her family sued for damages as a result of her death, and the jury, acting in accordance with the courts jury instructions, awarded zero damages, when they found that the cost of the young woman’s personal maintenance (college tuition, etc.) outweighed any likely economic contribution she would make to the family unit. As harsh as it may sound, the loss of their beloved child had more positive economic ramifications for the family than negative. Does this mean that human life has no value ? Can a New Jersey Court affirm a ruling that awards zero damages for the loss of a precious life?

The Supreme Court struggled with the tension between the statutory language and the unjustness of this result, and arrived at a compromise which, although unsatisfactory, gives a jury a basis to award money damages when the deceased was not making a purely economic contribution to the family. The court found that while compensation for emotional loss is not allowable, the pecuniary or marketplace value of companionship which would have provided services equivalent to those received by the aged or infirm from hired companions, nurses or practical nurses is recoverable, as well as the marketplace value of advice and counsel such as could be purchased from a business advisor, therapist or trained counselor. The value of these services may be determined by an economist or actuary, and a dollar value may be reached which, in theory, compensates the survivors for the loss of the services. While everyone knows that the economic losses which are recoverable under this judicial interpretation of the Wrongful Death statute do not reflect the real losses which have been sustained, it is better than nothing. The only way to solve this problem, once and for all, is for the legislature to amend the Wrongful Death Act, and for the governor to sign it into law.

John Sakson is a Shareholder and Co-Managing Direcotr of  Stark & Stark’s in the firm’s Lawrenceville, New Jersey office, specializing in Accident & Personal Injury Law. For more information, please contact Mr. Sakson.