Types of Compensatory Damages Recoverable in Arizona for Wrongful Death

PARTIES AND BENEFICIARIES IN A WRONGFUL DEATH ACTION

The parties and beneficiaries to a wrongful death action are set forth in A.R.S. § 12-612. The parties which can act as plaintiffs in a wrongful death action are the surviving husband or wife of the decedent or the personal representative of the deceased. Id. In addition, either parent may maintain an action for the death of a child. Id.

A wrongful death action is pursued by the above-referenced plaintiff's "on behalf" of certain beneficiaries. Id. These beneficiaries are the deceased's surviving spouse, the children or parents of the decedent or if none of these survive, on behalf of the decedent's estate. A.R.S. § 12-612(A).

The recovery obtained by a plaintiff is held for the benefit of the statutory beneficiaries. Sentry Insurance v. Superior Court, 156 Ariz. 557, 753 P.2d 1213 (App. 1988). When there are surviving beneficiaries (i.e., spouse, child or parent), the decedent's estate is not the ultimate beneficiary but rather acts only as a type of residual beneficiary. Sentry, id.; Solomon v. Harman, 107 Ariz. 426, 489 P.2d 236 (1971); Katz v. Filandro, 153 Ariz. 601, 739 P.2d 822 (App. 1987). See also Lankford and Blaze, Law of Negligence, at § 10.3, p. 259.

RELATIONSHIP OF WRONGFUL DEATH ACTION TO PERSONAL INJURY CLAIM OF DECEDENT

A surviving plaintiff is entitled to sue for wrongful death only if a cause of action for personal injuries against the defendant would have existed but for the death of the decedent. A.R.S. § 12-611.

In addition, when an injured plaintiff brings a personal injury action, then dies without resolving the action, that action survives the plaintiff's death by virtue of a statute which continues the right of action in the personal representative of the deceased plaintiff's estate. A.R.S. § 14-3110; Lankford and Blaze, Law of Negligence, at § 10.4(2), pp. 261-262. It is important to note that the deceased plaintiff's personal injury action and the surviving plaintiff's wrongful death action are two separate and distinct actions: The former action permits recovery for the wrong to the injured person and is confined to his personal loss while the latter action is for the wrong to the decedent's beneficiaries, and is confined to their loss because of his death. Barragan v. Superior Court, 12 Ariz.App. 402, 470 P.2d 722 (1970); Lankford and Blaze, id.

A defendant in a wrongful death action is liable to the same extent he would have been liable if the victim had been inured rather than if he had died. Thus, liability is established in essentially the same way as in a personal injury case. Lankford and Blaze, Law of Negligence, at § 10.5, p. 262.

Standard Jury Instruction for Damages for Wrongful Death

In Arizona, the current recommended jury instructions list the elements of damages that may be recovered in a wrongful death action. A jury may award an amount to compensate a plaintiff and the decedent's beneficiaries for the following:

1. The loss of love, affection, companionship, care, protection, and guidance since the death [of the decedent] and in the future.
   
   
2. The pain, grief, sorrow, anguish, stress, shock, and mental suffering already experienced, and reasonably probable to be experienced in the future.
   
   
3. The income and services that have already been lost as a result of the death, and that are reasonably probable to be lost in the future.
   
   
4. The reasonable expenses of funeral and burial.
   
   
5. The reasonable expenses of necessary medical care and services for the injuries that resulted in the death.

RAJI (Civil) 2d, Personal Injury Damages 3.

The following section will discuss and give examples of evidence bearing on these damages.

LOSS OF LOVE, AFFECTION, COMPANIONSHIP, CARE, PROTECTION, AND GUIDANCE
(LOSS OF CONSORTIUM)

Spouses and children may recover damages for the loss of the decedent's love, affection, consortium, companionship, protection, discipline, comfort and guidance. Southern Pacific Transportation Company v. Lueck, 111 Ariz. 560, 535 P.2d 599 (1975), cert denied, 425 U.S. 913 (1976); Boies v. Cole, 99 Ariz. 198, 407 P.2d 917 (1965); Sedillo v. City of Flagstaff, 153 Ariz. 478, 737 P.2d 1377 (App. 1987); Salinas v. Kahn, 2 Ariz.App. 181, 407 P.2d 120, modified on other grounds, 2 Ariz.App. 348, 409 P.2d 75 (1965). Evidence of a decedent's behavior or a survivor's behavior may be admitted to disprove loss of consortium damages. Lankford and Blaze, Law of Negligence, at § 10.7(3), pp. 267, 273. Thus, for example, a husband's abuse of his wife was shown to rebut his claim that he had suffered a loss of consortium as a result of her wrongful death. Quinonez v. Andersen, 144 Ariz. 193, 696 P.2d 1342 (App. 1984).

DECEDENT'S PAIN AND SUFFERING

In Arizona, the decedent's pain and suffering prior to his death is not recoverable in a wrongful death action. Lankford and Blaze, Law of Negligence, at § 10.7(1)(d), p. 269. Similarly, in a personal injury action brought pursuant to the survival statute, the deceased's claim for pain and suffering does not survive his death. Id.; A.R.S. § 14-3110; Harrington v. Flanders, 2 Ariz.App. 265, 407 P.2d 946 (1965).

On the other hand, the decedent's survivors are entitled to damages for personal anguish, sorrow, mental suffering, and pain and shock caused by the death of the decedent. Mullen v. Posada Del Sol Health Care Center, 169 Ariz. 399, 819 P.2d 985 (App. 1991); Southern Pacific Transportation Company v. Lueck, 111 Ariz. 560, 535 P.2d 599; City of Tucson v. Wonder-Gem, 105 Ariz. 429, 466 P.2d 383 (1970). In Mullen, the Arizona Court of Appeals held that the decedent's mother could not recover damages for her feelings of guilt over not having transferred her son from a nursing home after she learned that her son was receiving unsafe, improper and negligent care at the home prior to his death. The court stated that the plaintiff's emotional trauma "is not grief flowing from the [decedent's ] death. It is guilt flowing from her own conduct before the decedent's death." Mullen, 169 Ariz. at 400, 819 P.2d at 986.

PAST AND FUTURE ECONOMIC SUPPORT

Beneficiaries can recover for their economic loss caused by loss of the decedent's earnings. Lankford and Blaze, Law of Negligence, at § 10.7(1), p. 268. Future earnings are the measure of damages only when the plaintiff is the personal representative acting on behalf of the decedent's estate. Id.; Katz v. Filandro, 153 Ariz. 601, 739 P.2d 822 (App. 1987). However, the future earnings of the decedent are not the measure of damages in a wrongful death action when there are statutory beneficiaries which survive the decedent. See id. The measure of damages for surviving statutory beneficiaries is the loss of economic support which the beneficiary would have received from the decedent but for the wrongful death. Id.

As was discussed above, when the recovery is for loss of future economic benefits, the total amount of those benefits must be reduced to present value. Downs, 80 Ariz. 286, 297 P.2d 339. See also Lankford and Blaze, Law of Negligence, at § 13.2(2)(e), pp. 332-333. Additionally, as was also noted above, there is well-reasoned case law stating that it is proper to deduct income taxes from the decedent's projected future earnings when calculating the surviving beneficiaries' loss of future support. Lankford and Blaze, Law of Negligence, at § 10.7(1)(c), pp. 268-269; In re Air Crash Disaster Near Chicago, Il., 803 F.2d 304 (7th Cir. 1986) (applying Arizona law).

In order to establish the amount of the decedent's future earnings, an expert is usually needed to testify as to the earning potential of the decedent. Future earnings are generally based on such matters as the decedent's prior earnings, education, life expectancy and on "acceptable economic analyses." Sedillo v. City of Flagstaff, 153 Ariz. at 481, 737 P.2d at 1380. See also Southern Pacific Transportation Company v. Lueck, 111 Ariz. 560, 535 P.2d 599; Lankford and Blaze, Law of Negligence, at § 10.7(3), pp. 272-273. The jury is also entitled to consider, on the issue of damages, decedent's characteristics and habits including his general ability, other occupations he was qualified to fulfill, his industriousness, disposition to earn, intelligence, manner of living, sobriety or intemperance, frugality or lavishness and other personal characteristics that are of assistance in securing business or earning money, his age and life expectancy." Sheehan v. Pima County, 135 Ariz. 235, 239, 660 P.2d 486, 490 (App. 1982).

The following cases have discussed the issue of damages for future earnings and support in a wrongful death action:

1. At trial the reading of "Petition for Letters Testamentary" from estate file of deceased pilot who was killed in collision of two aircraft on the same runway was admissible to prove the monetary interest of the decedent in a corporation where court admonished the jury not to allow bias, prejudice or sympathy to influence its judgment and where the jury did not have to consider the disputed issue of damages. Coyner Crop Dusters v. Marsh, 90 Ariz. 157, 367 P.2d 208, reversed on other grounds, 91 Ariz. 371, 372 P.2d 708 (1962).
2. Evidence of the decedent's capacity and disposition to earn money is pertinent to the issue of damages in a wrongful death action. Kemp v. Pinal County, 8 Ariz.App. 41, 442 P.2d 864, appeal after remand, 13 Ariz.App. 121, 474 P.2d 840 (1970).
3. Evidence of surviving widow's earnings as an officer in a corporation was inadmissible in a wrongful death action. Coyner Crop Dusters v. Marsh, 91 Ariz. 371, 372 P.2d 708 (1962).
4. Based on the evidence in a wrongful death action that the surviving husband regularly abused and mistreated his wife, the jury could have concluded that the husband sustained no economic loss by reason of his wife's death and that the jury's damage award of zero dollars was just and fair. Quinonez v. Anderson, 144 Ariz. 193, 696 P.2d 1342 (App. 1984).
5. A survivor may recover for the loss of an inheritance of property to which the survivor would have been entitled and which would probably have been accumulated by the deceased. Salinas v. Kahn, 2 Ariz.App. 181, 407 P.2d 120, modified on other grounds, 2 Ariz.App. 348, 409 P.2d 64 (1965).
6. Damages for the death of an adult son is the reasonable expectation of the parent as to the pecuniary benefit they would have received from the son had the son lived. Calumet & Arizona Mining Company v. Gardner, 21 Ariz. 206, 187 P.2d 563 (1920).
7. In a wrongful death action, parents are entitled to have the jury consider in fixing their damages for the death of their son what the parents would probably have received from the son after he reached his age of majority as well as what they would have received prior to that time, and these damages are to be determined by consideration of the son's treatment of his parents, his health, his habits, his industry and his ability and inclination to help his parents. Pacific Gas & Electric Co. V. Almanzo, 22 Ariz. 431, 198 P. 457 (1921).
8. The jury was not compelled to accept as conclusive the statistical approach used by an expert witness in an attempt to project the decedent's future earnings, but rather the jury was entitled to make its own evaluation of the earning capacity of the deceased over the course of his lifetime. Southern Pacific Transportation Company v. Lueck, 111 Ariz. at 572, 535 P.2d at 611.

MEDICAL AND FUNERAL EXPENSES

Medical and funeral expenses of the deceased are recoverable by a surviving beneficiary only if he or she has paid for these expenses or is liable to pay for them. Barragan v. Superior Court, 12 Ariz.App. 402, 470 P.2d 722 (1970) (medical expenses); City of Tucson v. Wonder-Gem, 105 Ariz. 429, 466 P.2d 383 (1970) (funeral expenses); Lankford and Blaze, Law of Negligence, at § 10.7(1)(a), pp. 266-267. Otherwise, such expenses are generally recoverable only in a decedent's action for personal injury which survives the decedent's death under the survival statute. Lankford and Blaze, id. See also A.R.S. § 14-477. The rationale behind this rule is that a wrongful death action is an action to recover for the surviving beneficiaries' damages, and not those of the decedent.

MITIGATION OR REDUCTION OF DAMAGES

The courts have addressed a number of factors which mitigate or reduce the amount of damages for surviving beneficiaries in a wrongful death action. Foremost amongst these mitigating factors is the rule that evidence of remarriage of a spouse survivor is not admissible to mitigate damages. Taylor v. Southern Pacific Transportation Co., 130 Ariz. 516, 637 P.2d 726 (1981); Torres v. North American Van Lines, Inc., 135 Ariz. 35, 658 P.2d 835 (App. 1982). The rationale behind this rule is very much like the rationale supporting the collateral source rule: The defendant who is a wrongdoer should not benefit from the surviving spouse's remarriage. Lankford and Blaze, Law of Negligence, at § 10.7(3), p. 273. If evidence of remarriage is admitted or defense counsel refers to remarriage in a cross-examination or argument then it is proper for the court to order a new trial. Id.; Taylor, 130 Ariz. 516, 637 P.2d 726.

Set forth below are a number of cases which discuss the issue of mitigating or reducing the amount of damages in a wrongful death action:

1. A husband's abuse of his wife may be shown to rebut his claim that he suffered damages as a result of her wrongful death. Quinonez v. Anderson, 144 Ariz. 193, 696 P.2d 1342 (App. 1985).
2. Damages for which a decedent's mother could recover for wrongful death were limited to support which the mother could have received from the decedent during the two years between the decedent's death and the mother's own death. Katz v. Filandro, 153 Ariz. 601, 739 P.2d 822 (App. 1987).
   
   
3. Evidence of a father's drug abuse problem was admissible to show that his death caused no great loss to his surviving beneficiaries and thereby provided a reasonable basis to the jury's damage award of zero dollars. Sheehan v. Pima County, 135 Ariz. 235, 660 P.2d 386 (App. 1982).
   
   
4. Evidence in wrongful death action did not justify award of extraordinary, non-pecuniary damages to plaintiff survivors where none of plaintiff's survivors suffered any extraordinary emotional injuries requiring special treatment, hospitalization or psychiatric care. Felder v. U.S., 543 F.2d 657 (9th Cir. 1976).