The Civil Litigator
| Publication year | 1980 |
| Pages | 1576 |
1980, August, Pg. 1576. The Civil Litigator
1576
The Net Pecuniary Loss Rule as applied by the Colorado Supreme Court to damages in wrongful death cases permits a jury to consider the value of the loss of services of the deceased to the surviving plaintiff.(fn1) The Colorado Jury Instructions fail to include specific reference to the value of services lost.(fn2) In the author's opinion, trial courts should instruct a jury that the value of this loss is a proper element of damages to be considered. Therefore, the Colorado Supreme Court Committee on Jury Instructions should consider revising these instructions to call attention to the value of services lost in order to make the instructions conform with the Supreme Court decisions.
Although the Net Pecuniary Loss Rule can cause harsh results,(fn3) plaintiffs' attorneys would be able to secure just and adequate compensation for their bereaved clients if the Colorado Jury Instructions were rephrased in line with the Supreme Court interpretation of the Wrongful Death Statute.(fn4) The current instruction regarding the death of a child does mention "services"; however, it fails to tell the jury that expected services of a child to the surviving parent(s) are an element of damages that they may consider.(fn5) Instead, the instruction merely tells the jury to consider the relationship between the deceased child and plaintiff(s) ". . . as manifested by acts of service or pecuniary assistance ... as a part of determining the net pecuniary loss.(fn6) This language disregards the value of any lost services as an element of the net pecuniary loss.
The basic instruction for deceased adults omits any mention of services.(fn7) Most juries are quite conscientious. Therefore, if a jury were to restrict their damage considerations to the literal instruction given them by the court, even the strong arguments of counsel on the value of lost services might be overlooked. Thus, precise adherence to the specific language of either jury instruction could prevent weighing what may be the greatest pecuniary loss of all.
The Colorado Supreme Court Committee on Jury Instructions recommends instructions that are intended to reflect accurately the statutory or common law basis for recovery, as interpreted by our Supreme Court. The present statute on damages in wrongful death actions(fn8) is, for the present purposes and in practical effect, a...
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