Blue Chipper – Wrongful Death Damages

The case: Jordan v. Baptist Three Rivers Hospital,   984 S.W.2d 593 (Tenn. 1999).  Author:  Justice Janice M. Holder.

Why it is a Blue Chipper"  Jordan overruled past precedent that misread the wrongful death damages statute and permitted, for the first time, a factfinder to award damages for the loss of love, society and affection in a wrongful death case.  It recogized that the value of human life exceeded the dollar value of the decedent to earn money.   The case allowed the factfinder to consider such damages when the deceased was survived by a spouse or children, whether the children were minors or adults.

The bottom line:

A.  The relevant statute, T.C.A. Sec. 20-5-113:  "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."

B. "In 1903, this Court held in Davidson Benedict Co. v. Severson, 72 S.W.  967 (Tenn. 1903), that consortium damages were not available under Tennessee’s wrongful death statute. "  P. 598-99.

C. "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.2d 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. … The second classification of damages permits recovery of incidental
damages suffered by the decedent’s next of kin. … 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."  P. 600.

D.  "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. " P. 600.

E.  " A basis for placing an economic value on parental consortium is that the  education and training which a child may reasonably expect to receive from a  parent are of actual and commercial value to the child. Accordingly, a child  sustains a pecuniary injury for the loss of parental education and training when a  defendant tortiously causes the death of the child’s parent. … 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.)."  P. 601.

F.  "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."  P.  601-02.

Other cases of note on the issue of the recoverability of damages for loss of consortium in wrongful death cases:

A.  Hancock v. Chattanooga-Hamilton County Hosp., 54 S.W.3d 234 (Tenn. 2001) (parents may seek damages for loss of consortium for the wrongful death of their unmarried minor daughter).

B.  Rothstein v. Orange Grove Center, Inc., 60 S.W.3d 807 (Tenn. 2001) (parents may seek damages for loss of consortium for the wrongful death of their unmarried, childless adult daughter).

C. Kline v. Eyrich, 60 S.W.3d 197 (Tenn. 2002) (loss of consortium claim is not a seperate claim for damages but instead is one component of the of the pecuniary value of the decedent’s life).

D.  Ki v. State, 78 S.W.3d 876 (Tenn. 2002) (applying Kline and holding the loss of consortium damages are not awarded to individual claimants but rather part of the recoverable damages in the decedent’s right of action and therefore, in claims against the State of Tennessee, an action for wrongful death is but one claim to which the statutory cap on damages applies).

E.  Hunter v. Ura, 163 S.W.3d 686 (Tenn. 2005) (for the purpose of determing the amount of damages, loss of consortium begins at the time of the death and not at the time of trial).

What is a Blue Chipper?