Calculating Damages in a Child's Wrongful Death Case in CA | San Diego

When an adult dies as the result of negligence in California, the pecuniary (financial) loss to the family is easier to determine. For example, when a parent dies as the result of a wrongful death, a child may seek damages for the loss of the parent’s love, support, care, guidance, and income. When a child dies as the result of a wrongful death, the parents’ recovery is limited to loss of love and affection and other expenses, and to the child’s financial gain, which is usually quite small. This same issue presents itself in wrongful death actions with the elderly. As with the wrongful deaths of children, the wrongful death of an elderly person can have a somewhat limited recovery potential.

Certainly, much of this inquiry involves speculation, and the younger a child is at the time of death, the harder it becomes to specifically determine pecuniary loss or harm to the parents. A jury may consider what the child would have (or may have) contributed to both parents' support, but this cannot be pure guesswork or rough estimations. Juries often use life expectancy charts as a starting point for such complex calculations to help get an answer. Court rules against jury speculation do not necessarily limit parents to small recoveries in this regard, but California courts have generally affirmed smaller awards for the deaths of children. Remember, damages in a wrongful death claim are intended to compensate for the losses resulting from the death of a family member—for the purposes of this chapter, this means a child.

The following is what a California parent can claim as legal damages for the loss of his or her child:

␣Direct expenses: including hospital and medical bills and funeral cost;

␣ Loss of future earnings potential: the amount the decedent child would have earned during his or her lifetime;

␣ Loss of companionship (consortium): the loss of community, society (love and affection), and, if applicable, the financial support provided by the decedent child and the loss of benefits the decedent child would have been entitled to in any trust or pension/retirement (if he or she was gainfully employed at the time of death).

Some damages, such as the amount of direct expenses related to medical bills and funeral costs, are easy to estimate. Other damages, such as the appropriate amount for loss of companionship (love and affection), are more elusive and difficult to quantify. Calculating damages is a complex process (it requires legal analysis) that involves multiple factors.

Some of the factors to consider include:

␣ The nature of the parent’s relationship to the decedent child. As a parent bringing the action of the wrongful death, this is often easy to document. However, some states have added an additional requirement to show a parent has regularly contributed to the support of the child. This has been done to prevent a parent (more often a father) who rarely or never supported the child during the child’s lifetime from thereafter profiting monetarily from the child’s death. So far, California has not adopted this additional requirement. Thus, the closer the relationship between child and parent, the more damages are presumed to be; this can be shown through joint vacations, holidays, birthdays, photos, home movies, Mother’s Day and Father’s Day cards, etc.

␣ How dependent the parent was on the decedent child. This would be applicable if the child had supported the parent in some way. Financial experts can be used to help determine this factor. However, it should be noted that the courts and juries scrutinize this based on the health, age, and circumstances of those (parents and other family members) claiming pecuniary losses;

␣ The anticipated lifespan of the decedent child—human life experts are sometimes used to quantify this;

␣The anticipated earnings and employment benefits of the decedent child; often very hard to quantify because a child has usually not begun his or her career choice; and,

␣ The amount of comparative fault (if any) on the part of the decedent child; California law recognizes the apportionment of fault theory, which allows deductions in case value based on the percentage of any fault the decedent child may have contributed to the accident- causing death.