Section 14.6 Actual Damages

• Library: Tort Law 2016

A. (§14.6) Actual Damages

An entire chapter is devoted to wrongful death damages in II Missouri Damages ch. 18 (MoBar 3^rd ed. 2012). The bullet points of allowable damages in a wrongful death action under § 537.090, RSMo Supp. 2013, include all of the following:

Pecuniary losses suffered by reason of the death Funeral expenses The reasonable value of these losses:

- Services

- Consortium

- Companionship

- Comfort

- Instruction

- Guidance

- Counsel

- Training

- Support

· Such damages as the deceased may have suffered between the time of injury and the time of death

NOTE: Pre-impact terror during a plane crash was found to be an allowable damage in Delacroix v. Doncasters, Inc., 407 S.W.3d 13 (Mo. App. E.D. 2013).

The Missouri approved jury instruction for wrongful death damages does not list the elements of compensation and is considerably shorter than the statute. This instruction is MAI 5.01 [1996 Revision], and it provides:

If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe plaintiff [and decedent] sustained [and plaintiff is reasonably certain to sustain in the future] as a direct result of the fatal injury to (insert name of decedent).

You must not consider grief or bereavement suffered by reason of the death.

Section 537.090 specifically prohibits damages for grief or bereavement by reason of the death.

There is a caselaw qualifier on the grief/bereavement prohibition. Potential financial aid by the decedent is an allowable consideration under the statute. It "‘can be shown through evidence of the decedent’s health, character, talents, earning capacity, life expectancy, age and habits.’" Evans v. FirstFleet, Inc., 345 S.W.3d 297, 304 (Mo. App. S.D. 2011) (quoting Barnett v. La Societe Anonyme Turbomeca Fr., 963 S.W.2d 639, 657 (Mo. App. W.D. 1997)). This evidence may incidentally relate to grief and bereavement, but that alone would not prevent its admission when it was otherwise admissible to show authorized losses. Evans, 345 S.W.3d at 303–06.

Numerous cases have set forth the range of evidence that can be admitted in a Missouri wrongful death case:

"Compensatory damages may be awarded based on the pecuniary losses suffered by reason of the decedent’s death, funeral expenses, loss of services, consortium, companionship, and comfort, and the pain and suffering experienced by the decedent because of the defendants’ misconduct." Letz, 975 S.W.2d at 176. Pecuniary loss can be established by evidence of the decedent’s earning capacity, life expectancy, age, habits, health, character and talents. Id. "In computing the loss of consortium for the loss of a parent for a child, or the loss of a child for a parent, factors such as the physical, emotional, and psychological relationship between the parent and child must be considered." Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 657 (Mo.App. W.D.1997).

Henderson v. Fields, 68 S.W.3d 455, 486 (Mo. App. W.D. 2001).

With regard to the...