Kansas Wrongful Death Damages Recoverable by ourJohnson County Wrongful Death Attorneys
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DAMAGES AVAILABLE IN A KANSAS WRONGFUL DEATH OF A SPOUSE LAWSUIT:
This page offers an overview of damages available in Kansas wrongful death cases. At the Law Offices of Jeremiah Johnson, LLC, our wrongful death attorneys have experieince pursuing lawsuits and claims in wrongful death cases. Call us at 913-764-5010 to speak to one of our office's wrongful death lawyers today.
In certain cases, cases for personal injury and wrongful death can be brought in the same lawsuit, esepcially if there is evidence of "conscious pain and suffering." When an action for wrongful death is joined with a survival action for damages sustained during the deceased’s lifetime, the failure to instruct on both types of damages is clearly erroneous. Putter v. Bowman, 7 Kan. App. 2d 323, 326, 641 P.2d 411 (1982); K.S.A. 60-1801; Flowers v. Marshall, 208 Kan. 900, 494 P.2d 1184 (1972) ("A seprate survival action may be justified for some deaths.")
If a Kansas jury finds plaintiff is entitled to recover damages, the jury should allow the amount of money that will reasonably compensate plaintiff for the loss caused by defendant. There are two types of damages a jury in Kansas District Court may award: economic and noneconomic.
Economic damages recoverable by our office's wrongful death attorneys in Kansas Courts include:
1. Loss of care, attention, training, guidance, education, advice, counsel, services, or protection.
2. Loss of earnings your find the deceased would have provided.
3. Expenses for the care of the deceased caused by the injury.
4. Reasonable funeral expenses.
For items 1 and 2 above a jury should allow an amount that they believe would be equivalent to the benefit Plaintiff could reasonably have expected to receive from the continued life of the deceased.
In Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 365, 837 P.2d 330 (1992), the trial court instructed the jury that pecuniary damages for the wrongful death of a spouse included loss of services, attention, marital care, advice and protection, and loss of earnings the spouse would have provided. On appeal, the court determined that these elements of pecuniary damages were supported by the evidence. The terms “services” and “domestic duties” include not only manual labor about the house, but
also the performance of matrimonial, conjugal and connubial acts and duties, including social obligations, affection, and sexual relations. Cleveland v. Wong, 237 Kan. 410, 701 P.2d 1301 (1985).
Noneconomic damages recoverable by our law firm's wrongful death law firm's attorneys in Kansas Courts include:
1. Mental anguish, suffering, or bereavement.
2. Loss of society, loss of comfort, or loss of companionship.
For noneconomic damages there is no unit value and no mathematical formula the court can give a jury in Kansas. Instead the jurors should allow an amount that they find to be fair and just under all the facts and circumstances. The jury will be given a verdict form in which they must itemize the amount of damages awarded for losses to date and the amount of damages awarded for future losses.
Nonpecuniary damages generally are intangible in nature such as mental anguish, bereavement, loss of society and loss of companionship. Pecuniary damages are “such as can be estimated in and compensated by money.” If the jury verdict, after any adjustment for comparative fault, results in an award of nonpecuniary damages in excess of the statutory limit, the court must enter judgment for nonpecuniary damages in the amount of the statutory limit. McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982). A child's pecuniary damages are not limited to the loss of financial support the decedent would have provided during the child’s minority. Laterra v. Treaster, 17 Kan. App. 2d 714, 844 P.2d 724 (1992). In Howell v. Calvert, 268 Kan. 698, 1 P.3d 310 (2000), an action for the wrongful death of a child, thetrial court rejected the plaintiff’s request to instruct the jury that pecuniary damages included loss of care and nurturing, loss of aid and assistance, loss of counsel and advice, loss of continued family relationship, and loss of enjoyment and entertainment. On appeal, the Kansas Supreme Court upheld the trial court’s decision and determined that the requested instruction went beyond the traditional definition of pecuniary loss for the wrongful death of a child.
In Wilson v. Williams, 261 Kan. 703, 710, 933 P.2d 757 (1997), the court allowed a per diem or mathematical formula argument by counsel in order for a jury to place value on pain and suffering. This decision overruled Caylor v. Atchison, T. & S. F. Rly. Co., 190 Kan. 261, 374 P.2d 53 (1962). Even though counsel is now allowed to argue a mathematical formula for the jury to compute pain and suffering, the trial court should not provide a mathematical formula to the jury.
A settlement with a defendant who might be held liable for a proportional share of the damages for a wrongful death does not diminish the plaintiff’s right to recover judgment up to the statutory limit. Adams v. Via Christi Regional Medical Center, 270 Kan. 824, Syl. ¶ 4, 19 P.3d 132 (2001).
Wentling damages offer a unique way to work around Kansas' non-economic $250,000 damage cap.
When a plaintiff has shown an actual loss of services, attention, care, advice, protection, and educational, physical, and moral training and guidance, and the extent thereof, a jury is not precluded from considering such items in determining pecuniary damages even though no actual dollar evidence of value was presented. Such services are valuable per se and pecuniary in nature. Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985). In Wentling, the plaintiff husband, Rocky A. Wentling, brought a wrongful death action on behalf of himself and his two children based on the defendant's malpractice in improperly administering anesthesia to his decedent wife. At trial, plaintiff offered a damage instruction that read, in pertinent part: "The Defendant argued on appeal that the italicized clauses of the "Unlimited Damages" instruction were erroneous because there was "no evidence of pecuniary loss" and, therefore, those items should have been included in the limited damages and capped at $25,000. The Court disagreed."
The Kansas District Court reviewed the evidence presented at trial concerning loss of services, care and guidance, and specifically made note of testimony regarding the couple's closeness in their marriage, how the decedent cared for the plaintiff during his illnesses and how she helped him in some of his construction jobs. The Court also took notice of how the decedent wife had been deeply involved in the in-home care of the couple's handicapped son. The plaintiffs also produced an expert economist who testified about the monetary value attached to specific homemaking chores such as dietician, chauffeur, buyer, cook, dishwasher, housecleaner, laundress, nurse, and others. Based on her age and projected time of retirement, he established a monetary value of $586,071.00. Id. at 947. He also testified that there were other elements of loss not included in that figure. Although he could not place a specific dollar figure on such elements as moral training, social training, educational assistance, a mother's role as nurturer and counselor, companionship and services to her husband, these elements, nonetheless had real economic value insofar as they contribute to a person's welfare, ability to mature, and obtain productive employment in society. Id.
In considering the conflicting positions of the parties, the Court posed this question: "Is the inability of plaintiff and his expert witness to translate the loss of services, care and guidance into a specific monetary figure fatal under McCart to plaintiffs' recovery? We think not." Id. at 948. They found that plaintiff had satisfied his burden of proof by showing the nature and extent of the losses, and "the triers of fact are presumed to be capable of converting the losses into monetary equivalents on the basis of their own experience." Id. (Emphasis added.) "To hold otherwise would allow the defendant tortfeasor a virtual windfall simply because these losses are not capable of precise measurement. In addition there is really no serious contention that the care, guidance and services of a spouse and parent lack monetary value." Id.
Wentling may offer a blueprint for expanding the definition of economic damages in a wrongful death case outside of the State of Kansas. The ability to make this expansion is especially critical in Kansas person injury and wrongful death auto accident cases where non-economic losses are often capped.