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Wrongful Death Cases: Children and the Elderly

In a wrongful death action, the value of the victim’s life to surviving family members is measured by the victim’s earning potential, in combination with a number of other factors. Setting a price on human life isn’t a pleasant task, but it’s one that courts and juries are required to do in these sorts of actions.

Because of this price-setting procedure in wrongful death actions, the death of a child or an elderly person may raise difficulties – how does one measure the future financial contributions of a child or of an elderly retired person? To accurately assess the lost financial value of a death, the courts follow certain guiding principles.

Loss of a Child

When an earning adult dies, the financial loss is relatively easy to assess, but even so, the wrongful death loss is not measured solely by financial earnings but also by the potential childrearing services, love, nurturing, and companionship elements of an adult relationship. For example, if a father dies in a car accident, his child may seek damages for not only the loss of the father’s income, but also the loss of the father’s care and guidance.

When a child dies, on the other hand, the parents' recovery is limited solely to their financial loss, which is usually quite small. Financial losses due to the death of a child are determined by:

  • The age, sex, life expectancy, work expectancy, state of health, and habits of the child;
  • The child's earning potential;
  • The relationship of the decedent to those claiming a pecuniary loss; and,
  • The health, age, and circumstances of those claiming pecuniary losses.

A lot of these assessments are simply speculation, and the younger a child is at the time of death, the harder it becomes to accurately speculate. For example, it is easier to speculate on the earning potential of an eighteen year-old, high-performing student enrolled in a top university program, as opposed to speculating on the earning potential of that same child at the age of ten.

A jury may consider what the child would have contributed to the parents' support, but this cannot be pure guesswork. Juries often use work-life expectancy tables as a starting point for calculations. Rules against jury speculation don’t necessarily limit parents to small recoveries, but courts generally give relatively small damage awards for the deaths of children.

Loss of a Fetus

States vary on whether a person may bring a wrongful death action when their unborn fetus is killed. Many states require that a child be born alive for its death to qualify for a wrongful death action, and in those states, the death of a fetus is therefore not a valid justification for an action. In Illinois and other states, however, the death of an unborn fetus may be actionable, so long as the fetus was viable at the time of death. A qualified local attorney will be able to advise you on the laws of your state and whether, according to local law, you can sue for the wrongful death of an unborn fetus.

Loss of an Elderly Person

In the same way that the death of a child might not produce a large award of damages, the death of an elderly person also has limited recovery potential. Modest awards for the deaths of elderly people are due to several factors. First, it’s often assumed that someone past the age of retirement no longer has significant earning potential. Second, the children of elderly people are usually adults who no longer need significant guidance, support, or nurturing from their parents. The undervaluing of elderly persons in wrongful death actions is a controversial topic – some scholars argue that it’s the natural result of a system operating by a Valuation by Human Capital approach.

Getting Help

Seek the assistance of a qualified attorney to help determine whether you will be able to bring a wrongful death action for the death of a child or an elderly person. An attorney may also be able to help estimate the damages to which you are entitled.

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Next Steps

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