The opinion of the Court was delivered by WILENTZ, C.J.
In the spring of her senior year at high school, Donna Green was killed in an automobile accident. She was a young woman of average intelligence and cheerful disposition; hard-working
This action was brought for her wrongful death under N.J.S.A. 2A:31-1 et seq. Liability having been established at a separate trial, the jury in these proceedings were to "give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death ... to the persons entitled to any intestate personal property of the decedent." N.J.S.A. 2A:31-5. The jury apparently found that Donna's survivors, her parents and brothers and sisters, had suffered no pecuniary loss for they awarded no damages whatsoever. In effect her life was adjudicated worthless to others, in a pecuniary sense.
We reverse. Under the circumstances presented to us, such a verdict is a miscarriage of justice. See Carrino v. Novotny, 78 N.J. 355 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588 (1977). We remand for a new trial in accordance with this opinion on the issue of damages. We hold that when parents sue for the wrongful death of their child, damages should not be limited to the well-known elements of pecuniary loss such as the loss of the value of the child's anticipated help with household chores, or the loss of anticipated direct financial contributions by the child after he or she becomes a wage earner. We hold that in addition, the jury should be allowed, under appropriate circumstances, to award damages for the parents' loss of their child's companionship as they grow older, when it may be most needed and valuable, as well as the advice and guidance that often accompanies it. As noted later, these other losses will be confined to their pecuniary value, excluding emotional loss. Given this expansion of permissible recovery, a verdict finding no damages for the death of a child should ordinarily be set aside by the trial court and a new trial ordered. To sustain such a verdict "would result in a return to the outmoded doctrine that a child is a liability not an asset." Bohrman v. Pennsylvania
We intend, by so holding, to give juries in wrongful death cases involving children the same ability to do justice to their parents, within the limits of existing legislation, as they now have under our cases when children lose a parent. By thus expanding the permissible scope of recovery, we also hope to reduce the pressure on juries to award damages for the parents' emotional suffering, unquestionably the most substantial element of damages in these cases, but legally impermissible.
Donna was one of six children in a warm and close family. She was a good student, did her share of household tasks, including babysitting and keeping the younger children busy so that her mother was free to do other things. She worked after school, as well as on weekends and in the summer, and had done so since she was 14. She helped provide for her own material needs and was saving for her forthcoming graduation festivities. She had definite plans to enter college and ultimately to embark on a business career. Although others described her as fun-loving, ebullient and popular, her mother, who concurred, nevertheless characterized her as level-headed. She was always there when she was needed; she always came through. She was a good-hearted, devoted and dependable daughter.
At the close of the evidence the trial court charged the jury that their verdict, in accordance with N.J.S.A. 2A:31-5, was to reflect only past, present and future pecuniary losses to the survivors, including any direct financial contributions that Donna might have made, but was not to compensate for grief and sentimental losses. In addition, the trial judge stated, "the term financial loss also includes the reasonable value of benefits which would have been received by a survivor in the nature of services or assistance or guidance if the decedent had continued to live." He qualified this statement by explaining that the jury should "consider the benefits which Donna bestowed upon the
After deliberating for approximately an hour and a half, the jury returned a verdict of no damages. Plaintiffs' motion for a new trial on damages was denied. The trial judge concluded that "it would be reasonable for this jury to come to [the] conclusion that the value of her services to babysit or to dry dishes was far exceeded by the cost to the family of feeding, clothing and educating her. The jury in this particular case followed literally the language of the statute and came to the conclusion that they reached." The judge noted that it is unusual for a jury to come in with a verdict of no recovery, and he expressed sympathy with the parents and their shock when they learned of no award for their daughter's death. He concluded, however, that a clear and convincing miscarriage of justice had not occurred. The Appellate Division affirmed this denial in an unreported opinion.
In fairness to the trial court, its instructions to the jury were substantially in accord with present case law. Furthermore, the charge was objected to in only one respect which the court remedied. Under those instructions, the trial judge was clearly correct when, in ruling on the motion for a new trial, he noted that a jury could very well have concluded that the further cost
The development of existing case law elsewhere suggests allowance of such damages as "pecuniary injuries" under wrongful death statutes. This development has probably been influenced by the inconsistent treatment in wrongful death cases between a parent's death and a child's death. In the case of a parent's death, in addition to the usual losses clearly having a monetary value, the law allows damages to be awarded to the surviving children for the loss of guidance and counsel which
As suggested above, other states, sometimes similarly bound by legislation, sometimes by decisional law, have relaxed the strict pecuniary approach to damages for a child's death where its potential for harsh results is substantial. One of the most noteworthy of these efforts has occurred in Michigan. In Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960), the Michigan Supreme Court rejected a strict pecuniary loss rule that its courts had engrafted onto a statute that had allowed recovery for losses of a pecuniary nature. The Michigan court pointed out that the era of child labor, and hence the fixation with earnings and services, was over. Rejecting "the bloodless bookkeeping imposed upon our juries by the savage exploitations of the last century," the court held that the worth of a child's life should henceforth be calculated according to his function as part of an ongoing family unit. When Wycko was overruled in Breckon v. Franklin Fuel Co., 383 Mich. 251, 174 N.W.2d 836 (1970), the Michigan Legislature responded by incorporating into its Wrongful Death Act a provision that damages
The New York courts, feeling trapped by the strict pecuniary loss limitation set forth in their Wrongful Death Act, have repeatedly criticized the rule and urged the Legislature to change it. Fornaro v. Jill Bros., 42 N.Y. Misc.2d 1031, 249 N.Y.S.2d 833 (Sup.Ct. 1964), rev'd on other grounds, 22 App.Div.2d 695, 253 N.Y.S.2d 771 (App.Div. 1964) (criticizing pecuniary loss limitation as needlessly harsh and unrealistic and pleading for legislative change); Gary v. Schwartz, 72 Misc.2d 332, 339 N.Y.S.2d 39 (Sup.Ct. 1972) (same). See also Bell v. Cox, 54 App.Div.2d 920, 388 N.Y.S.2d 118 (App.Div. 1976) (change in pecuniary loss test for Legislature or Court of Appeals; nevertheless, $10,000 verdict for death of "loving and considerate" 19-year-old daughter who did not live home with parents held "shockingly inadequate"). See generally 2 F. Harper & F. James, The Law of Torts 133 (1956); Speiser & Malawer, "An American Tragedy: Damages for Mental Anguish of Bereaved Relatives in Wrongful Death Actions," 51 Tul.L.Rev. 1 (1976); Lambert, "Death of a Child," 30 NAACA L.J. 188 (1964), reprinted in S. Schreiber, Damages in Personal Injury and Wrongful Death Cases (1965).
What services, what activities, could a daughter or son reasonably have been expected to engage in but for their death and to what extent do any of them have monetary value? Just as the law recognizes that a child may continue performing services after age 18, and that monetary contributions may also be received by the parents thereafter when the child becomes productive, it should similarly recognize that the child may, as many do, provide valuable companionship and care as the parents get older. As noted above, our courts have not hesitated to recognize the need of children for physical help and care. Parents facing age or deteriorating health have the same need, and it is usually their children who satisfy that need. Indeed the loss of companionship and advice which a parent suffers when a
Companionship and advice in this context must be limited strictly to their pecuniary element. The command of the statute is too clear to allow compensation, directly or indirectly, for emotional loss. Our cases uniformly so hold. Graf v. Taggert, 43 N.J. 303, 308-309 (1964); McStay v. Pryzchocki, 7 N.J. 456, 460 (1951); Carter v. West J. & S.R. Co., 76 N.J.L. 602, 604 (E. & A. 1908); Cooper v. Shore Electric Co., 63 N.J.L. 558, 567 (E. & A. 1899); Alfone v. Sarno, 168 N.J.Super. 315, 321 (App.Div. 1979), certif. granted, 81 N.J. 332 (1979).
Companionship, lost by death, to be compensable must be that which would have provided services substantially equivalent to those provided by the "companions" often hired today by the aged or infirm, or substantially equivalent to services provided by nurses or practical nurses.
Given this jurisdiction's vastly expanded scope both of tort liability and of recoverable damages-including emotional loss, for instance, when a parent actually witnesses a child's death, Portee v. Jaffee, 84 N.J. 88 (1980)-we know of no public policy which would prohibit awarding damages that fully compensate for the loss of emotional pleasure in this situation, or indeed for the emotional suffering caused by the death. We recognize that our prohibition against such damages deprives the surviving parent of compensation for the real loss. That prohibition is not a matter of our choice, rather it is fundamental to the legislation.
Absent special circumstances, it could be claimed that the mere parent-child relationship does not show that it is more probable than not that such services would have been rendered had the child lived. Who knows what the child's circumstances would be, or whether the parent would indeed become old or infirm and require such companionship, or need such advice at any time? Given the speculative quality of the inferences, it might further be questioned whether one could realistically attach an estimated pecuniary value to such services. Our answer is, even assuming no special circumstances are proven, that the nature of these cases has led our courts to allow damages even though the inferences, and the estimate of damages, are based on uncertainties. Cooper v. Shore Electric Co., supra, 63 N.J.L. 558, 567; McStay v. Pryzchocki, 10 N.J.Super. 455, 458 (App.Div. 1950); Paulmier v. Erie R.R. Co., 34 N.J.L. 151, 158 (Sup.Ct. 1870). When a parent dies and loss of advice, guidance and counsel is allowed to the surviving children, and when an infant child dies and loss of prospective services is allowed to the parents, the proof that suffices is the parent-child relationship and what we assume the jury can conclude from that relationship alone. Damages are allowed without any showing that the parent had actually been rendering valuable advice, or was likely to do so, or that the child-even if only five months old, Greenberg v. Stanley, 51 N.J.Super. 90, 108-109 (App.Div. 1958), aff'd in relevant part, 30 N.J. 485, 492 (1959)
Obviously the use of an expert in these cases could be most helpful, along with such detailed information concerning family circumstances as counsel can provide. The lack of such information was noted by the Appellate Division in McStay v. Pryzchocki, supra, 10 N.J. Super. at 462:
Despite this lack of information, the damages found by the jury were sustained, but we agree with the court's conclusion that "the jury should not have been left to conjecture on these matters." Id. While it may not be legally necessary to have answered all these questions, it is obviously desirable to do so.
Ascertaining the present value of the prospective services presents no particular problem simply because they will be rendered in the distant future. The same mathematics which allow discounting the value of prospective services to be rendered in two years can be applied to those which may be rendered in twenty.
We do not regard our holding concerning the compensability of loss of companionship as an expansion of recovery in these cases except in the sense that prior cases have not explicitly recognized this element of damage. The loss is within the statutory limit of "pecuniary injuries" and its allowance does
Extension of the scope of recovery in cases involving a child's death should reduce the adverse effect the present restrictive rules probably have on juries. Verdicts in these cases sometimes result from the jury's desire to award the parents something for their emotional suffering (not permitted by law) in view of the severely restricted permissible items of recovery. A compassionate jury, wanting to give the parents something substantial for their emotional loss but being told, in effect, that the measure of recovery is the value of the household chores that might have been performed less the future cost to the parents of maintaining
One further consideration suggests that this extension of recovery is warranted. Parents live longer today; the proportion of people age 65 and over in our population continues to grow.
For the reasons set forth above, the decision of the Appellate Division is reversed and the matter is remanded for a new trial as to damages only.
For reversal and remandment — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, SCHREIBER, HANDLER and POLLOCK-6.
"[T]he jury cannot take into consideration mental suffering or loss of society ..." This proposition is discussed infra.
As noted above, at 11-12, in many other jurisdictions, courts unfettered by legislation have taken the initiative in allowing recovery for traditionally non-pecuniary losses. These jurisdictions include Arizona, Idaho, Louisiana, Puerto Rico, South Carolina, Texas, Utah, Vermont, Virginia and Washington. See S. Speiser, supra, § 3:49 nn. 89-95 at 313-16. Even several jurisdictions bound by strict pecuniary loss rules have nevertheless allowed recovery for the "pecuniary value" of such items as comfort and companionship, or advice and counsel. Among these jurisdictions are California, Michigan, Minnesota, Montana, Pennsylvania, South Dakota and the Virgin Islands. See Speiser, supra, § 3:49 at 318-22. Those jurisdictions that have not yet abandoned a strict pecuniary loss rule are being urged by commentators to do so. See, e.g., Belfance, "Inadequacy of Pecuniary Loss as a Measure of Damages in Actions for the Wrongful Death of Children," 6 Ohio Northern U.L.Rev. 543 (1969); Speiser and Malawer, "An American Tradegy: Damages for Mental Anguish for Bereaved Relatives in Wrongful Death Actions," 51 Tul.L.Rev. 1 (1976); Note, "Wrongful Death of Children: the Real Injury," 5 W.St.U.L.Rev. 253 (1978); Note, "Wrongful Death of Minors," 47 U.M.K.C.L.Rev. 121 (1978).