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§23.5 Damages in Cases Involving Death of Spouse or Parent

The Case: Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999).

The Basic Facts: Daughter brought wrongful death claim against hospital and doctors. She sought to recover damages for the loss of the relationship between her and decedent.

The Bottom Line:

  • "Tennessee's approach to providing a remedy for death resulting from personal injury is a hybrid between survival and wrongful death statutes, resulting in a statutory scheme with a 'split personality.' 27 Tenn. L. Rev. at 454. The pertinent damages statute, Tenn. Code Ann. § 20-5-113, has been in existence in one form or another since 1883. It provides:
    Where a person's death is caused by the wrongful act, fault, or omission of another, and suit is brought for damages ... the party suing shall, if entitled to damages, have the right to recover the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received.
    [Tenn. Code Ann. § 20-5-113] (emphasis added)." 984 S.W.2d at 598 (footnote omitted).
  • "The plain language of [Tenn. Code Ann. § 20-5-113] reveals that it may be classified as a survival statute because it preserves whatever cause of action was vested in the victim at the time of death. Jones v. Black, [539 S.W.2d 123 (Tenn. 1976)]; Milligan v. American Hoist & Derrick Co., [622 F.Supp. 56, 59 (W.D. Tenn. 1985)]. The survival character of the statute is evidenced by the language 'the party suing shall have the right to recover [damages] resulting to the deceased from the personal injuries.' Thrailkill v. Patterson, [879 S.W.2d 836, 841 (Tenn. 1994)] (emphasis added). Tennessee courts have declared that the purpose of this language is to provide 'for the continued existence and passing of the right of action of the deceased, and not for any new, independent cause of action in [survivors].' Whaley v. Catlett, [53 S.W. 131, 133 (Tenn. 1899)]; Herrell v. Haney, [341 S.W.2d 574, 576 (Tenn. 1960)]; Memphis St. Ry. Co. v. Cooper, [313 S.W.2d 444, 447-48 (Tenn. 1958)]; Jamison v. Memphis Transit Management Co., 381 F.2d 670, 673 (6th Cir.1967). Accordingly, [Tenn. Code Ann. § 20-5-113] 'in theory, preserve[s] the right of action which the deceased himself would have had, and ... [has] basically been construed as falling within the survival type of wrongful death statutes for over a century' because it continues that cause of action by permitting recovery of damages for the death itself. Jones, 539 S.W.2d at 123-25." Id.
  • "Notwithstanding the accurate, technical characterization of [Tenn. Code Ann. § 20-5-113] as survival legislation, the statute also creates a cause of action that compensates survivors for their losses. The statute provides that damages may be recovered 'resulting to the parties for whose use and benefit the right of action survives from the death.' Id. (emphasis added). Hence, survivors of the deceased may recover damages for their losses suffered as a result of the death as well as damages sustained by the deceased from the time of injury to the time of death. Jones, 539 S.W.2d at 124 (Tennessee's wrongful death legislation provides 'for elements of damages consistent with a theory of survival of the right of action of the deceased but also allows damages consistent ... with the creation of a new cause of action in the beneficiaries.'). Our inquiry shall focus on whether survivors should be permitted to recover consortium losses." Id.
  • "Damages under our wrongful death statute can be delineated into two distinct classifications. Thrailkill v. Patterson, [879 S.W.2d 836 (Tenn. 1994)]; Davidson Benedict Co. v. Severson, [72 S.W. 967 (Tenn. 1903)]. The first classification permits recovery for injuries sustained by the deceased from the time of injury to the time of death. Damages under the first classification include medical expenses, physical and mental pain and suffering, funeral expenses, lost wages, and loss of earning capacity. See [Tenn. Code Ann. § 20-5-113] ('right to recover the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries')." Id. at 600.
  • "The second classification of damages permits recovery of incidental damages suffered by the decedent's next of kin. See [Tenn. Code Ann. § 20-5-113] ('and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received.') (emphasis added); see also Thrailkill, 879 S.W.2d at 841; Davidson Benedict Co., 72 S.W. at 977. Incidental damages have been judicially defined to include the pecuniary value of the decedent's life. Spencer v. A-1 Crane Serv., Inc., [880 S.W.2d 938, 943 (Tenn. 1994)]. Pecuniary value has been judicially defined to include 'the expectancy of life, the age, condition of health and strength, capacity for labor and earning money through skill, any art, trade, profession and occupation or business, and personal habits as to sobriety and industry.' Id. Pecuniary value also takes into account the decedent's probable living expenses had the decedent lived.Wallace v. Couch, [642 S.W.2d 141 (Tenn. 1982)]; Hutton v. City of Savannah, [968 S.W.2d 808, 811-12 (Tenn. Ct. App. 1997)]." Id. (footnote omitted]).
  • "The wrongful death statute neither explicitly precludes consortium damages nor reflects an intention to preclude consortium damages. The statute's language does not limit recovery to purely economic losses. To the contrary, the statute's plain language appears to encompass consortium damages." Id.
  • "Indeed, this Court has recognized that pecuniary value cannot be defined to a mathematical certainty as such a definition 'would overlook the value of the [spouse's] personal interest in the affairs of the home and the economy incident to [the spouse's] services.' Thrailkill, 879 S.W.2d at 841. We further believe that the pecuniary value of a human life is a compound of many elements. An individual family member has value to others as part of a functioning social and economic unit. This value necessarily includes the value of mutual society and protection, i.e., human companionship. Human companionship has a definite, substantial and ascertainable pecuniary value, and its loss forms a part of the value of the life we seek to ascertain. While uncertainties may arise in proof when defining the value of human companionship, the one committing the wrongful act causing the death of a human being should not be permitted to seek protection behind the uncertainties inherent in the very situation his wrongful act has created. Moreover, it seems illogical and absurd to believe that the legislature would intend the anomaly of permitting recovery of consortium losses when a spouse is injured and survives but not when the very same act causes a spouse's death." Id.
  • "We are constrained to interpret statutes so that no part or phrase of a statute will be rendered inoperative, superfluous, void, or insignificant. Tidwell v. Collins, [522 S.W.2d 674, 676 (Tenn. 1975)]. Accordingly, we reverse Davidson Benedict v. Severson, [72 S.W. 967 (Tenn. 1902)], to the extent that Davidson Benedict prohibits consideration of spousal consortium losses when calculating the pecuniary value of a deceased's life under the wrongful death statute." Id. (footnote omitted).
  • "The wrongful death statute precludes neither a minor child nor an adult child from seeking compensation for the child's consortium losses. Moreover, [Tenn. Code Ann. § 20-5-110] provides that 'a suit for the wrongful killing of the spouse may be brought in the name of the surviving spouse for the benefit of the surviving spouse and the children of the deceased.' This provision when read in pari materia with [Tenn. Code Ann. § 20-5-113] seemingly permits consideration of parental consortium damages. Foster v. Jeffers, [813 S.W.2d 449, 451 (Tenn. Ct. App. 1991)] (holding all wrongful death statutes must be construed with reference to one another)." Id. at 601.
  • "The additional considerations employed for spousal consortium may be applicable to parental consortium claims. We agree with the observation of one court that 'companionship, comfort, society, guidance, solace, and protection ... go into the vase of family happiness [and] are the things for which a wrongdoer must pay when he shatters the vase.' Spangler v. Helm's New York-Pittsburgh Motor Exp., [153 A.2d 490 (Pa. 1959)]." Id.
  • "Adult children may be too attenuated from their parents in some cases to proffer sufficient evidence of consortium losses. Similarly, if the deceased did not have a close relationship with any of the statutory beneficiaries, the statutory beneficiaries will not likely sustain compensable consortium losses or their consortium losses will be nominal. The age of the child does not, in and of itself, preclude consideration of parental consortium damages. The adult child inquiry shall take into consideration factors such as closeness of the relationship and dependence (i.e., of a handicapped adult child, assistance with day care, etc.)." Id.
  • "We hold that consortium-type damages may be considered when calculating the pecuniary value of a deceased's life. This holding does not create a new cause of action but merely refines the term 'pecuniary value.' Consortium losses are not to limited to spousal claims but also necessarily encompass a child's loss, whether minor or adult. Loss of consortium consists of several elements, encompassing not only tangible services provided by a family member, but also intangible benefits each family member receives from the continued existence of other family members. Such benefits include attention, guidance, care, protection, training, companionship, cooperation, affection, love, and in the case of a spouse, sexual relations. Our holding conforms with the plain language of the wrongful death statutes, the trend of modern authority, and the social and economic reality of modern society." Id. at 601-02.

Other Sources of Note: Hunter v. Ura, 163 S.W.3d 686, 705 (Tenn. 2005) (loss begins at time parent is lost and not at time of trial); Ki v. State, 78 S.W.3d 876 (Tenn. 2002) (makes it clear that a loss of consortium award is part of the wrongful death award and not a separate cause of action to the claimaint); Hancock v. Chattanooga-Hamilton County, 54 S.W.3d 234 (Tenn. 2001) (damages in a wrongful death suit may include damages for loss of filial consortium).

Recent Cases: Mohr v. DaimlerChrysler Corp. , No. W2006-01382-COA-R3-CV, 2008 WL 4613584 (Tenn. Ct. App. Oct. 14, 2008) (recognizing that pecuniary value of a decedent's life includes value for loss of consortium for a spouse or a child and finding material evidence to support jury's award of compensatory damages).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

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