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Wrongful Death Cases: Children and the Elderly

Setting a price on human life is not a pleasant task, but it is one that courts and juries are required to do in wrongful death actions. Because the primary measure of damages in a wrongful death action is pecuniary (financial) loss, the death of a child or an elderly person may raise difficulties in arriving at an adequate damage award.

Children

When an adult dies, the pecuniary loss to the family is readily quantifiable. For example, when a parent dies, a child may seek damages for loss of the parent's care, income, nurturing, and guidance. When a child dies, the parents' recovery is limited to their pecuniary loss, which is usually quite small.

When a child dies, pecuniary injuries are determined by:

  • The age, sex, life expectancy, work expectancy, state of health, and habits of the child;
  • The child's earning potential;
  • The relationship of the decedent to those claiming a pecuniary loss; and,
  • The health, age, and circumstances of those claiming pecuniary losses.

Clearly, much of this inquiry involves speculation, and the younger a child is at the time of death, the harder it becomes to determine pecuniary loss to the parents. A jury may consider what the child would have contributed to the parents' support, but this cannot be pure guesswork. Juries often use life expectancy charts as a starting point for calculations. Rules against jury speculation do not necessarily limit parents to small recoveries, but courts generally affirm small awards for the deaths of children.

Unborn Children

Many people inquire about wrongful death actions for unborn fetuses. States vary on whether someone may bring a wrongful death action when an unborn fetus dies. Many states require that a child be born alive for its death to constitute the first element of a wrongful death action. Thus, the death of a fetus is frequently not actionable, nor is the parents' emotional injury from losing the fetus. An attorney can advise you as to whether you can sue for the wrongful death of an unborn fetus in your state.

Elderly Persons

In the same way that the death of a child might not produce a large award of damages, the death of an elderly person also has somewhat limited recovery potential. Modest awards for the deaths of elderly people are due to several factors. First, it is often assumed that someone past the age of retirement no longer has significant earning potential.  Second, the children of elderly people are usually adults who no longer need significant guidance, support, or nurturing from their parents.

Seeking the professional assistance of an attorney will help you determine whether you are able to bring a wrongful death action based on the death of a child or an elderly person, and help estimate the damages to which you might be entitled.

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