M Civ JI 45.02 Wrongful Death - Damages

If you decide the plaintiff is entitled to damages, you shall give such amount as you decide to be fair and just, under all the circumstances, to those persons represented in this case. Such damages may include the following items, to the extent you find they have been proved by the evidence:

(1)*(reasonable medical, hospital, funeral and burial expenses)

(2)*(reasonable compensation for the pain and suffering undergone by [ name of decedent ] while [ he / she ] was conscious during the time between [ his / her ] injury and [ his / her ] death)

(3)*(losses suffered by [ name of surviving spouse / name of next of kin ] as a result of [ name of decedent ]’s death, including:

(a) loss of financial support

(b) loss of service

(c) loss of gifts or other valuable gratuities

(d) loss of parental training and guidance

(e) loss of society and companionship

(f) [ other ]

(g) [ other ])

Which, if any, of these elements of damage has been proved is for you to decide, based upon evidence and not upon speculation, guess, or conjecture. The amount of money to be awarded for certain of these elements of damage cannot be proved in a precise dollar amount. The law leaves such amount to your sound judgment. Your verdict must be solely to compensate for the damages and not to punish the defendant.

Note on Use

*Include only such of the listed elements of damage as are properly claimed and supported by evidence. If there is proof of additional elements of damage which are appropriate under the statute, they should be added to this instruction. If any item of damage is admitted or established by undisputed evidence, the jury should be so instructed when such item is mentioned in this instruction.

In child death cases, when there is a basis for finding the amount expended by the parent on the child’s support, maintenance and education, add the following language after element 3b: “which shall be at least as great as the amount spent by the parent on the child’s support, maintenance and education.” See Rohm v Stroud, 386 Mich 693; 194 NW2d 307 (1972).

If a surviving widow has remarried but continues to regularly use her prior married name, she is entitled to a protective order requiring that she not be referred to or addressed by the name of her present husband. Wood v Detroit Edison Co, 409 Mich 279; 294 NW2d 571 (1980). Under such circumstances, her prior married name should be used in this instruction and in M Civ JI 45.01.

In In re Ellen Combs, ___ Mich App ___ (July 24, 2003), the Court of Appeals held the phrase “children of the deceased’s spouse,” in MCL 600.2922(3)(b) does not include children of a spouse who predeceases the plaintiff’s decedent. Leave to appeal to the Michigan Supreme Court has been sought.

Comment

Damages for medical, hospital, funeral and burial expenses are expressly authorized by the wrongful death statute. MCL 600.2922(6). See Rufner v Traverse City, 296 Mich 204; 295 NW 620 (1941), as to recovery for such expenses when the estate is not liable.

Clause 2 of the instruction covers the “survival” element of the statute. Prior to 1939, in cases where death was not instantaneous, remedy was under the “survival act,” which gave to the estate the right of action which the decedent had at the time of his death, including damages for pain and suffering and for loss of past and future earnings. See Olivier v Houghton County Street R Co, 134 Mich 367; 96 NW 434 (1903). 1939 PA 297 changed the law so as to require all claims for injuries resulting in death to be brought under the Wrongful Death Act. Damage for conscious pain and suffering was added to the wrongful death claim, and damage for loss of earnings after death was superseded by the claim for “pecuniary injury” suffered by the surviving spouse or next of kin. See Baker v Slack, 319 Mich 703; 30 NW2d 403 (1948).

This leaves a possible ambiguity as to damage for loss of earnings between the time of injury and time of death. It is doubtful that the 1939 amendment was intended to eliminate such a clear-cut element of economic loss, and the “fair and just” clause of the present statute is doubtless broad enough to encompass it. But since the matter is unsettled, and since the item will be relatively unimportant in most cases, this element of damage has not been included in the above instruction.

Clause 3 of the instruction covers the “wrongful death” element of the statute, for losses inflicted upon the surviving spouse or next of kin as a result of the decedent’s death. Until 1971, the statute limited this element of damage to “pecuniary injury.” Historically, “pecuniary injury” was interpreted to include only injuries resulting in an actual loss of money to the surviving spouse and next of kin. For example, a surviving husband could recover for the future cost of maid service required by the death of his wife. Strong v Kittenger, 300 Mich 126; 1 NW2d 479 (1942). Also, parents could recover for the loss of wages which would have been earned by a deceased child, minor or adult. Thompson v Ogemaw County Board of Road Commissioners, 357 Mich 482; 98 NW2d 620 (1959). This includes voluntary contributions for support from a child. Mooney v Hill, 367 Mich 138; 116 NW2d 231 (1962).

In Wycko v Gnodtke, 361 Mich 331; 105 NW2d 118 (1960), a case involving the death of a fourteen-year-old child, the court upheld the jury award to his surviving parents as not being excessive. The opinion declared that the traditional child labor formula (probable wages less cost of keep) did not adequately measure the pecuniary injury to the child’s parents and went on to say that loss of companionship is an element of damages for the wrongful death. However, Breckon v Franklin Fuel Co, 383 Mich 251, 174 NW2d 836 (1970), limited Wycko to its holding that the award of damages was not excessive in the particular case and repudiated Wycko and later cases regarding loss of companionship as an element of pecuniary injury. (Breckon was later overruled by Smith v Detroit, 388 Mich 637; 202 NW2d 300 (1972), as to cases commenced prior to the effective date of 1971 PA 65.)

The legislature responded to Breckon with the enactment of 1971 PA 65, which amended the statute by deleting the phrase “pecuniary injury,” and by directing the jury to give such damages as it “shall deem fair and just, under all of the circumstances, … [ including ] recovery for the loss of the society and companionship of the deceased.” In context it seems clear enough that this was not intended to eliminate any of the elements of “pecuniary injury” previously allowed, but rather to settle the troublesome question as to inclusion of damages for loss of society and companionship. Therefore, clause 3 of this instruction includes both kinds of elements.

It should be noted that the Wrongful Death Act permits a child to recover for the loss of society and companionship of a deceased parent. Berger v Weber, 411 Mich 1; 303 NW2d 424 (1981).

Where appropriate, elements of damages such as those listed in M Civ JI 50.02 may be inserted into this instruction. See Taylor v Michigan Power Co, 45 Mich App 453, 457; 206 NW2d 815, 818 (1973).

History

M Civ JI 45.02 was SJI 32.02.