Anatomy of a Wrongful Death Lawsuit

What Can Be "Put on the Board"? (contd.)

A. Earning Capacity of the Decedent

As a general rule, damages in a wrongful death action include that part of the decedent's probable earnings during the probable duration of his life that would have gone for the benefit of his children, parents, or spouse. In an action in which such damages are claimed, it is essential to establish the earning capacity of the decedent. The measure of damages is not what the decedent would have earned, but only so much of his earnings as he would have expended for the benefit of his family.

The rule as to future losses under both the wrongful death action and the survival action is almost universally stated to be measured in terms of the decendent's lost future earning power. It has been held that investment income could properly form the basis for damages in a wrongful death action where "the predominating factor is the directing intellectual and physical labor of the individual," although at the same time it was indicated that an investment from capital not based on the efforts of the deceased would not provide a proper basis for damages since it would not be lost on his death. Social Security benefits are admissible as some evidence of the decedent's earning power. Funds received in the form of a veteran's subsistence allowance that terminated on death could form part of the funds on which wrongful death damages are based. Similarly, veteran's benefits lost as result of the decedent's death are a proper basis for damages.

It would seem that the proper rule should be that in a wrongful death action where the decedent was making contributions to the statutory beneficiaries from any source, and as a result of the death those contributions are terminated, the beneficiaries have suffered a pecuniary loss for which they should be entitled to damages. Likewise, if in the survival action the decedent was receiving payments from any source which terminates with his death, his estate has suffered a pecuniary loss for which it should be entitled to damages.

The cost of maintenance of the deceased must be deducted from the earning capacity of the deceased in determining damages in a survival action. It is also clear that when a wrongful death action is joined with a survival action and the cost of maintenance is deducted in the survival action, the cost of maintenance should not be doubled by repeating the deduction in the wrongful death action.

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