By Bernard F. Pettingill, Jr. Ph.D
Introduction One recurrent theme that occurs in wrongful death cases, involving spouses with no dependents at home or family members who can assist with nighttime protection and care, is ‘why is this not ever provided when measuring economic damages in a wrongful death case’? Nighttime security or protection is not the same thing as comfort care; but, instead, is a measure of replacement services of a spouse during sleeping hours. This is not the same as replacement value of a spouse during daytime hours when, for example, a spouse may be accompanied by a family member who customarily provides activities of daily living services, including services rendered to other members of the family such as teaching and/or admonishing children. In ‘Dollar Value of a Day’ study, only primary activities are counted in the replacement value of housekeeping and home services of the decedent, thereby overlooking the value of companionship and protection at night or when someone is in the home alone. Pecuniary Damages Forensic economists are often hindered when quantifying economic damages in a wrongful death case by state and federal statutes, which are strictly defined in terms of their parameters. When valuing losses in any wrongful death case, customarily, the approach includes replacing lost earnings or loss of support, quantifiable replacement of housekeeping services, and, when applicable, the loss of net accumulations to an estate. These losses, currently referred to as pecuniary damages, can be defined in monetary terms based on the replacement cost of a marketable good or service.
Nonpecuniary Damages On the other hand, nonpecuniary damages are often losses related to utility that involves intangibles (Ward, 2007) or irreplaceable things (Shavell, 2004). Whereas pecuniary damages can be determined by a judge or jury, nonpecuniary damages and any attempt to calculate them is often left up to the discretion of the judge or jury, assuming these nonpecuniary damages are adequately explained. Nonpecuniary measures of damages for someone who is providing security and protection at night, can be compared to firefighters, who customarily work a 24 hour on-call shift. Between calls, firefighters may sleep; however, they must remain vigilant while being paid because they are available on an immediate, on-call basis in order to respond to emergencies. While they are not technically being paid to sleep, they are being paid to be available to the needs of their community members. Historically, nonpecuniary damages, like security for decedents who are left alone at home at night with no protection, have not been computed because of the strict statutes that do not often allow for such a claim. Nonpecuniary damages are not equated with replacement services such as yard care, automobile maintenance, or any other activity of daily living that the decedent spouse customarily provided. Instead, this simple measure of valuing services in a home setting, while the decedent’s spouse remains unprotected and exposed to possible harm while sleeping, should indeed be a pecuniary measure of damages and should be quantified. By definition, reasonable value for services performed by another and doing services for the claimant, which, except for the death of the decedent, that same claimant would ordinarily have been provided.
How to Quantify the Unquantifiable How could this measure of safety and security for a decedent’s spouse be quantified? One simple method would be to cost out the value of a home health aide or possibly certified nursing aide, replaced by a non-degreed, marginally trained, certified and bonded person, who would be provided by an agency at a cost of X dollars. Research in this area is available online and can be determined on a per state or even a per city basis throughout the United States. A second measure would be to replace the services of an attendant care with some type of robotic camera/alarm system, easily installed and provided at a minimal cost to the decedent’s spouse and which could be a simple determination for enhancing the pecuniary claim for damages. According to the ‘Dollar Value on the Day’, sleep does provide a value for a household in the form of availability for protection, care or comfort. When someone loses a spouse, the quality of sleep drops since the bravest member of the household is no longer around. The same person would customarily check out strange noises in the night and provide security, care and comfort for the decedent and his or her family. Summary and Conclusions We propose that the replacement value of a minimally trained night attendant/nurse aide/security guard in order to provide protection and care for sleeping persons at the customary replacement wage in the open market become a quantifiable determination or measure of pecuniary damages in all wrongful death cases. This method is far more easily determined by the forensic economist, who could easily determine the cost and benefit of such a need and factor those costs into the future, reflective of the average life expectancy of the surviving spouse. When this measure is determined and fully automated into other standard measures of damages, wrongful death claim cases can be significantly enhanced in value, and rightfully so.
Finally, there would be no personal consumption expenses deducted from this measure of care and comfort services, often referred to as replacement value of personal services. There is no sharing of services in this case because there is no other person who could have made this provision available. However, by replacing someone’s sleep time and securing that sleep time with the type of replacement cost of services discussed above, we believe that this measure should become a standard in determining additional pecuniary damages in future.
Krueger, Kurt v., John O. Ward, and Gary R. Albrecht. 2001. “Introduction to the Whole-time Concept.” Journal of Forensic Economics 14(1): 3-8.
Shavell, Steven. 2004. Foundations of Economic Analysis of Law. Cambridge, MA. Harvard Press University.
Tinari, Frank D. 2004. “A Note on ‘Household Services: Toward a More Comprehensive Measurement’.” Journal of Forensic Economics 17(3): 383-385.
Ward, John O. 2007. “Time Valuation as an Alternative to Lost Enjoyment of Life in Determining Wrongful Death Damages.” Journal of Forensic Economics 20(2): 155-169.