N.J. Model Civil Jury Charge 8.43

U

8.43 WRONGFUL DEATH (3/10)1

The plaintiff brings this lawsuit as th e representative of the survivors of the

decedent, [insert decedent’s name]. On behalf of the survivors, the plaintiff asserts

that the defendant was responsible fo r the decedent’s death and seeks money

damages from the defendant for the actua l financial losses the survivors have

suffered, and will suffer in the future, as a result of the decedent’s death.

What Is Not Recoverable

A. In this category of dam

ages, you are not to consider any physical injuries

or suffering that the decedent may have su stained, such as pain and suffering or

disability.2

B. You are also not to consider any em otional distress, anguish or grief the

survivors may have suffered as a result of the decedent’s death, or any loss of

emotional satisfaction the survivors ma y have derived from the society and

companionship of the decedent. These matters, although very real and distressing,

cannot be considered in determining the ex tent of the financial loss suffered by the

survivors.

1 Although not specifically a jury charge issu e, trial judges should be aware that the New Jersey

Probate Act apparently changes the previous law concerning who is entitled to recover under the

Wrongful Death Act. The changes to the Probate Act apply only to the estates of those who died

after February 26, 2005.

2 In cases where there is also a claim for pain and suffering, add “Those are separate claims that

will be discussed later in this charge.”

What Is Recoverable

Financial loss includes not only the act ual monies the decedent would have

earned and contributed for the benefit of the survivors, but also the reasonable

value of the services, assistance, care, training, guidance, advice, counsel and

companionship the survivors would have received from the decedent had he/she

lived.

A. With regard to the decedent’s earnings, you should consider the net

earnings after taxes as of the time of the decedent’s death. You should also give

due regard to any evidence concerning the decedent’s potential future income

during the balance of his/her working lif e expectancy. The income figure you use

should be net income, that is, income afte r taxes. This is because net income

represents that portion of the decedent’s income which would have been available

for the benefit of the decedent’s survivors.

3 Net income also includes fringe

benefits, such as monies the decedent would have obtained in the form of employer

contribution to a retirement plan.4

3 See Tenore v. Nu Car Carriers , 67 N.J. 466, 494-95 (1975), where the Court held that the trial

court erred in refusing to allow defendant to cross examine on income taxes.

4 See N.J.S.A. 2A:31-5 which uses the phrase “pecuni ary injuries” not just “salary”. Also see

Thalman v. Owens Corning Fiberglass, 290 N.J. Super. 676 (App. Div. 1996), where the

Appellate Division upheld a wrongful death award partially because decedent’s “lost pension

income totaled $84,000”.

Since money used for the decedent’s personal maintenance and expenses

would not have been available for the bene fit of the survivors, you m

ust subtract

the decedent’s personal expenses from the net income. You must find to what

extent the decedent’s net earnings were necessary for his/her personal needs and

deduct that amount from the net income.

B. You may also consider the benef it the survivors would have received

from the decedent in the form of services, assistance, guidance and training. In

making such an award, you must determine the reasonable value of the services or

benefits that will be lost by reason of the decedent’s death.

C. In addition to the loss of anticip ated direct financial contributions

from the decedent to the su rvivors, as I explained previously, you should also

consider the pecuniary value of the loss of the decedent’s anticipated services to

the survivors. This may include things such as chores the decedent would have

performed including household chores, babysitting, etc. 5 You should also consider

the value of the loss of th e companionship, advice and guidance of the deceased as

the survivors grow older. You must remember, however, that your award for

damages for these losses will be confined to their financial value and should not

include any amount of emotional loss.6

5 Green v. Bittner , 85 N.J. 1, 6 (1980) Chores should be case specific depending on the

decedent’s relationship to plaintiff and the facts of each case.

6 Green v. Bittner, supra at 12.

Bear in mind that in fixing an award for services, companionship, care,

advice and counsel, you m

ust distinguish between their emotional value and their

financial or economic value. We recognize that [children, parents, spouse] may

provide valuable services such as companionship, care, advice and guidance over

time as the survivor(s) face(s) advanced age or declining health. Remember,

however, that no pecuniary value may be attached to the emotional satisfaction

gained by the parent, spouse or child if the deceased has performed these services.

Perhaps the best way to describe the type of services that can be

compensable under the category of loss of care are those substantially similar to

the services provided by paid “companions ” or “homemakers” who are often hired

by the aged or the infirm, or substantially equivalent to services provided by nurses

or practical nurses. 7 Companionship in this sense, however, will not include true

nursing services unless you find that the deced ent had or was likely to have special

training. The value of thes e services must be confin ed to what the marketplace

would pay a stranger with si milar qualifications to the deceased to perform such

services. In interpreting the criteria of “similar qualifications,” you may also attach

a financial value to the know ledge of the survivors’ likes, dislikes, abilities and

habits which the decedent may have possessed.

7 Green v. Bittner, supra at 12.

s computation.

Under the category of loss of the deced ent’s guidance, advice and counsel to

the survivors, we are speaking only of its financial elem

ent. It is the loss of

guidance, advice and counsel we all need fro m time to time in particular situations,

for specific purposes, such as in making a business decision, or a decision affecting

one’s life generally, or even advice and c ounsel needed to relieve depression or

personal dilemmas. It must be the kind of advice and guidance that could be

purchased from a business advisor, a th erapist, or a trained counselor, for

instance.8 It is not the loss simply of th e exchange of views, no matter how

perceptive, when the survivor and loved one s are together nor is it the loss of the

pleasure which accompanies such an exchange between family members because,

again, emotional loss is not involved in thi

You must decide what services the decedent would have rendered to the

survivors, as well as the value of these services. The survivors do not have to

prove that they would have in fact purchased such companionship and advice after

the decedent’s death; it is sufficient that the decedent would have rendered it to

8 In Brown v. Kennedy Memorial Hospital-University Medical Center, 312 N.J. Super. 579 (App.

Div. 1998), certif. denied, 156 N.J. 426 (1998), the Appellate Division affirmed the trial court’s

ruling that the evidence did not support a $400,000 jury award for loss of housekeeping and

clerical services. Compare Morris v. Krauszer Food Stores, Inc., 300 N.J. Super. 529 (App. Div.

1997), where the Appellate Division allowed a $1,000,000 award for loss of services after an

expert calculated the loss of decedent’s services to her children, including the cost of paying

someone to cook, clean, shop and laundry, and the lo ss of guidance, instruction and training at

$45 an hour until the youngest child reached the age of emancipation.

them if he/she had lived. 9 To the extent that it is re levant to the issue of the

services the decedent would have pr ovided, you should also consider the

decedent’s character, personality, habits and customs as well as his/her relationship

with the survivors.10

As part of your deliberations in this regard, you should also consider the age

and general health of the decedent and the survivors, since this may affect the

period of time over which it would be reasonably expected that the decedent would

have rendered the services to the survivors. You can c onsider the life expectancy

and the work-life expectancy of the d ecedent at the time of death and the life

expectancy of the survivor or survivors.

Compensation

If you find that plaintiff is entitle d to an award, the amount recoverable is

comprised of two parts:

a. the amount of the financial loss to date; and

b. the present value of any future financial loss.

9 Green v. Bittner, supra at 16-17.

10 Although the jury should consider a decedent’s personality and character, “such evidence must

be relevant to some aspect of th e damages claimed by the plaintiff.” Johnson v. Dobrosky, 187

N.J. 594, 606 (2006) (quoting Stewart M. Speiser, Recovery for Wrongful Death & Injury, §6:26

(4th ed. 2005) and holding that decedent’s welfare fraud conviction should not have been

admissible in a wrongful death case.

1. Past Loss

Once you have decided that the plai ntiff is entitled to recover, the first thing

you must determine is the amount of the financial loss from the date of death to the

present. Financial loss means both cate gories of financial loss which I just

described and the reasonable value of the benefits or services the decedent would

have given the survivors.

2. Future Losses 11

A. Preliminary Charge to be Given Before Any Expert Testimony

In this phase of the case, you are a bout to hear expert opinion testimony on

certain economic claims made. You will be the final judges of the reliability of

these experts’ projections of future economic losses. Any bottom line figure

offered by the expert will be based on certain assumpti ons that the expert will

make concerning probable future economic trends.

In evaluating the reliability of the e xpert’s projections, you may consider the

cross-examination by the attorneys a nd also any evidence presented by the

opposing parties on this issue such as other expert testimony. At this state of the

case, you should keep an open mind regard ing the reliability of these bottom-line

figures and not given them automatic acceptance. I repeat, it will be your

responsibility and your responsibility alone to determine at the close of the case the

am

ount of economic losses suffered by the plaintiff, based upon all the credible

evidence you choose to accept on this question.

B. Final Charge to be Given at Co nclusion of Case if There is No

Expert Testimony

Plaintiff also seeks to recover for fi nancial support and serv ices that will be

lost in the future.12 Obviously, the time period covering the survivor’s future losses

cannot go beyond that point when it was e xpected that the deceased and/or the

survivor would live. The ability of an adult to render services may decrease with

age or increase with age in the case of a child. You can take into account both life

expectancy and work-life expectancy.

13

But you should be aware that the figur es that you have been given on life

expectancy and work-life expectancy are only statistical averages. Do not treat

them as necessary or fixed rules, since th ey are general estimat es. Use them with

caution and use you sound judgment in taking them into account.

For future loss of financial support, as well as past loss of financial support,

you must base your decision on probable net earnings, the take-home pay, the

amount left after taxes are deducted. It is the burden of the plaintiff to prove, by a

11 These instructions are based upon DeHanes v. Rothman , 158 N.J. 90 (1999), overruling

Tenore v. Nu Car Carriers, Inc., supra.

12 Coll v. Sherry, 29 N.J. 166, 175 (1959).

13 This concept should be charged if there is appropriate evidence received on the subject. See

Charge 8.11G regarding life expectancy.

preponderance of the evidence, the deceased ’s net incom

e and the probable loss of

future support and services.14

In deciding what plaintiff’s future losses are, understand that the law does

not require of you mathematical exactne ss. Rather, you must use sound judgment

based on reasonable probability.15

C. Effects of Interest and Inflation on Future Earnings

Once you have decided how much money plaintiff will lose in the future,

you must then consider the effects of inflation and interest. As to inflation, you

should consider the effects it probably w ill have in reducing the purchasing power

of money. Any award for future losses may be increased to account for losses in

the purchasing power of that money because of inflation. The consideration of

interest requires that you should not just award plaintiff the exact amount of money

that he/she will be losing in the future. The survivors will have that money now

even though he/she/they will not have incu rred the loss of that money until some

time in the future. And that means that survivors will be able to invest the money

and earn interest on it now even though he/she/they othe rwise would not have had

that money to invest until some future date.

14 See Caldwell v. Haynes, 136 N.J. 422, 436 (1994), which requires that the plaintiff prove net

income in personal injury and wrongful death cases.

15 By analogy to future income loss in a wrongful death case. Tenore v. Nu Car Carriers, Inc.,

To make up for this, you must make an adjustment for the survivors having

the money available now even though the loss will not be experienced until the

future. This adjustment is known as discounting, and discounting gives you the

value of the money that you get now instead of getting it at some future time. In

other words, it gives you the present value or present worth in a single lump sum of

money which otherwise was going to be received over a number of years at so

much per year.

Your goal is to create a fund of money, which, if paid today, will fairly

compensate plaintiff for his or her future loss of earnings. In arriving at the

amount of that fund – the present value of future losses – you should consider the

interest the fund will probably earn in future years; the probable amount by which

taxation on the interest might decrease th e money available to plaintiff and the

effect of inflation in decreasing the pur chase power of money. The higher the

interest rate you believe the fund will earn in future years, the lower will be the

amount of the fund needed to fairly compen sate plaintiff for future earnings. On

the other hand, the higher the probable rate of inflation in future years, the higher

twill be the amount of the fund needed to fair ly compensate plaintiff. It is possible

that the interest earned in the future could be offset exactly by the rate of inflation

in which event these factors could cancel each other out and you could award the

supra at 494-495. See also, Freidman v. C & S Car Service, 108 N.J. 72, 78-79 (1987).

net lost wages for the appropriate number of years without any adjustment.16

D. Final Charge to be Given at Conclusion of Case if There was

Expert Testimony on the “Bottom Line”

You have heard an expert (or an e xpert for each side) discuss the present

value of plaintiff’s future losses includi ng projections as to future interest,

including its tax consequences, and inflation rates. You may consider some, all, or

none of the opinions of the experts in de termining a fair figure to compensate

plaintiff for future losses. The expert s have also given you their “bottom line”

figures as to decedent’s future lost ear nings. As I told you previously, you need

not give any of these “bottom line” figures automatic acceptance. You are free to

determine, based on all the evidence, in cluding the expert testimony you choose to

accept, what amount of dollars will fairly compensate plaintiff for his/her future

losses.

3. Medical and Funeral Expenses

The plaintiff is also entitled to an award for reasonable and related medical

expenses and funeral expenses.

16 See Kappovich v. Lewinter , 43 N.J. Super. 528 (App. Div. 1957), certif. denied, 24 N.J. 112

(1957), which mandates utilization of life expectancy charts. A trial judge is not to provide

jurors with either a wage increase chart or an inte rest rate chart in any case with an expert. In a

case without any experts, the c ourt may consider, subject to Rule 201(b), New Jersey Rules of

Evidence, whether it should show the jury the wage and interest rate charts, subject to a

cautionary instruction.

Cases and Comment

1. New Jersey now allows “properl y qualified experts to testify about the

aggregate net sums of the economic lo sses that they have calculated … and

to introduce into evidence the exhibits that they have prepared”. DeHares v.

Rothman, 158 N.J. 90, 103 (1999). The trial judge must caution the jury

about uncritical acceptance of same. Id.

2. It is possible for a wrongful deat h case to be tried without an expert. See

Green v. Bittner, supra at 17; Brown v. Kennedy Memorial Hosp., supra ,

312 N.J. Super. at 593- 595; and Correia v. Sherry , 335 N.J. Super. 60, 69

(L.Div. 2000). In a case without any expert testimony, that court may,

subject to N.J. Ev. Rule 201(b), consider whether it can take judicial notice

of wage and interest rate figures compiled by recognized authorities. If a

court were to take such judicial notice, the jury would have to be instructed

that such charts are illustrative only a nd need not be followed by the jury if

the jury believes that different figures would apply in the future, or in the

case of wages, that decedent’s wage would have risen more rapidly, less

rapidly or, not at all.

3. A question may arise as to how th e jury should report its verdict. In Eyoma

v. Falco, 247 N.J. Super. 435, 455 (App. Div.1991), it was held to be plain

error for the jury to divide its verdict amongst the survivors, since N.J.S.A.

2A:31-4 states that the proportions to be awarded the survivors “should be

determined by the court without a jury”. In Black v. Seabrook Associates,

Ltd., 298 N.J. Super. 630, 639 (App. Div. 1997), the Appellate Division

stated that a verdict should be br oken down between decedent’s pain and

suffering and the survivors’ financial loss. As to breaking down the award

into constituent components such as past loss and future losses, Bussell v.

DeWalt Products Corp. , 204 N.J. Super. 288, 295, (App. Div.), rev’d, 105

N.J. 233 (1987), indicates that this is desirable. See also , Nylander v.

Rogers, 41 N.J. 236, 239 (1963) (“there can be no doubt of the power of a

trial judge to direct a jury to a ssess and report damage separately on a

plaintiff’s separate claims or even, in special situations, on items of a single

claim. The power should be freely and liberally exercised . . . While

discretionary in the sense that failure to direct separate ve rdicts would rarely

if ever constitute error absent a reasoned request . . . the power should be

applied almost as a matter of course where the claims ar e independent . . .

and in other situations where some realistic benefit is pointed out . . . Any

confusing burden on the jury can be avoided by delivering to it a list of the

separate verdicts to be returned”) See also R . 4:39-1 and R. 4:39-2 which

allow for special verdicts and interr ogatories. Accordingly, the Committee

recommends instructing the jury to (a) divide the loss into past and future

losses and (b) subdivide both past and fu ture losses into the income lost and

the service lost. This will also help the trial court on motions for additurs

and remitturs. Separate verdicts for Survival Action Damages under N.J.S.A.

2A:15-3 should always be used for th e decedent’s pain and suffering. See

Model Jury Charge 8.42. Compensati on for medical expenses and funeral

expenses under the Wrongful Death Act should also be awarded separately.

Of course, medical expenses whic h are allowed under both N.J.S.A. 2A:31-

5 and N.J.S.A. 2A:15-3 can only be awar ded once and are subject to review

after trial by the court under the Collateral Source. N.J.S.A. 2A:15-97.