Chapter 3 - § 3.2 THE NET PECUNIARY LOSS RULE HISTORICAL PERSPECTIVE

• Jurisdiction: Colorado

§ 3.2 THE NET PECUNIARY LOSS RULE HISTORICAL PERSPECTIVE

Two cases, Herbertson v. Russell, 371 P.2d 422 (Colo. 1962), and Kogul v. Sonheim, 372 P.2d 731, 732 (Colo. 1962), show how the net pecuniary loss rule was applied to restrict recovery of damages in wrongful death cases. These cases reveal that the Colorado courts have traditionally given a very narrow construction to the Wrongful Death Act. Although these cases are primarily of historical interest, they are still relevant to the extent they illustrate the types of factors courts will consider in determining an award of economic damages.

In Herbertson, after a trial to the court, judgment was entered in favor of Amos and Eva Russell against Fred and Robert Herbertson in the amount of $25,000 for the death of the Russells' minor daughter, Glenda Sue. On appeal, the Herbertsons asserted that their agent was not negligent and his negligence was not the proximate cause of the girl's death; that the proximate cause of the death was the girl's own act of running in front of the left rear wheel of the Herbertson truck; and that the damages of $25,000 awarded by the court were so grossly excessive that as a matter of law, the award had to be set aside. The Colorado Supreme Court determined that the trial court did not err in finding that the Herbertsons were liable for the girl's death but held that the court did err by awarding damages of $25,000.

A man named Barksdale was driving a gravel truck owned by the Herbertsons. The decedent was six years old and was running along the side of the street on which the gravel truck was driving. She ran into an intersection in front of the left rear wheels of the truck. There was a factual dispute at trial as to whether the truck was straddling the center line of the street. The trial court found that Barksdale was negligent because a portion of the truck was on the wrong side of the street and that his negligence was a proximate cause of the accident. The trial court also found that the girl's conduct was consistent with that of a reasonably prudent six-year-old child and that she was not contributorily negligent. The supreme court held that because there were disputed issues of fact, the trial court did not err in its rulings as to negligence, contributory negligence, and proximate causation. 371 P.2d at 424.

The court next addressed the issue of damages. The court noted that in their complaint, the Russells alleged that as a result of the defendant's negligence, they were denied the right to the earnings of their daughter during her minority and also denied the right to her assistance in their declining years. They sought judgment in the amount of $50,000 and claimed that the statutory limit of $25,000 was a violation of the Colorado and federal constitutions. On appeal, the Russells did not argue that the...