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Damages for the Unthinkable -- Death of a Child

The death of a child is unthinkable and unnatural for any parent.  No sum of money can ever serve as a substitute for the tragic void from such a profound emotional and psychological loss.  Yet, under our American system of justice, Wrongful Death and Survival claims are designed to compensate one's immediate family and estate for the noneconomic and economic losses suffered.

When parents lose their child due to the negligence of another, under the Pennsylvania Wrongful Death Act, in addition to monetary expenses such as medical costs, funeral expenses and cost of estate administration, parents are entitled to recover a sum that will fairly and adequately compensate them for the monetary value of the services, society and comfort that their child would have given to them had he or she lived, including such elements as work around the home, provision of physical comforts and services, and provision of society and comfort.  The measure of these damages extends from the time of injury to the end of the deceased child's life expectancy, a concept inconsistent with the fundamental parental expectation that as parents, we are never expected to outlive our children.

Under the Pennsylvania Survival Act, the child's estate is entitled to recover damages for the child's mental and physical pain and suffering, inconvenience and loss of life's pleasures that the child endured from the moment of injury to the moment of death as a result of the accident or event.  In addition to this noneconomic damage component, the estate is also entitled to recover for the deceased child's loss of earning capacity over his or her work life expectancy, less the cost of his or her maintenance during this period.

Although trial courts have been split on the issue of the parent's right to be compensated for the loss of society, comfort, aid, care and services of their child, in a parental Wrongful Death and Survival Action case arising from the loss of a  24 year old son, the Pennsylvania Superior Court, in Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa. Super. 2010), recently upheld a jury verdict of $2.5 Million for the son's wrongful death, flinding that the jury properly recognized the depth of the anguish suffered by the son's parents through a sum which, while substantial, could not compensate them for the loss of their son they had nurtured to adulthood.   The Superior Court ruled that the parents may recover not only for the medical, funeral, and estate administration expenses they incurred, but also for the value of their son's services, including his society and comfort.  In addition to validating this damage award, the Court granted the son's estate a new trial on the the Survival claim because the jury failed to assess and award to his estate damages for its demonstrable loss of his significant earning capacity which was unrefuted at the trial. 

As in any complex case involving catastrophic injury and death, it is essential during trial to demonstrate the passions of the child, especially his or her dedication to family.  Proof through detailed factual evidence on the parent-child relationship of closeness, love and assistance, transcends financial contributions by the child to his or her parents in times of difficulty.  It includes the many helping and caring personal services, comfort, closeness, love and assistance to his or her parents as they age.  This loss of "society and comfort" is thus at the heart of the death of a child.

 

 

   

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Gregory R. Gifford
  • RGS&G Firm News

    "Gregory R. Gifford, a partner at the Lansdale law firm of Rubin, Glickman, Steinberg and Gifford, P.C., was elected Vice President of the Montgomery Bar Association on January 13, 2017. Mr. Gifford is a past Director of the Association and has also served as its Treasurer and Secretary"Read more...

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Rubin, Glickman, Steinberg and Gifford has been a member of the local Penn Suburban Chamber of Commerce (previously known as North Penn Suburban Chamber of Commerce) for more than 25 years.

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