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Kenneth Vercammen & Associates Law
Office helps people injured due to the negligence of others. We provide
representation throughout New Jersey. The insurance companies will not
help. Don't give up! Our Law Office can provide experienced attorney representation
if you are injured in an accident and suffer a Serious Injury.
In a Wrongful death jury trial in New Jersey, we [ your trial attorney]
will research the current caselaw.
The plaintiff brings this lawsuit as the representative of the survivors
of the decedent and seeks to recover damages from the defendant contending
that defendant's fault was responsible for the death of the decedent.
The money damages sought on behalf of the survivors of the decedent represent
the actual pecuniary or financial loss which plaintiff contends has been
and will in the future be suffered by the survivors due to the death of
the decedent. This claim for pecuniary or financial loss is distinguished
from any physical injuries or suffering that may have been sustained by
the decedent, such as any pain and suffering or disability sustained by
the decedent. In the event that you find in favor of the plaintiff, that
is, that the defendant was at fault, which fault was a proximate cause
of plaintiff decedent's death, you must limit your consideration to whatever
financial loss was suffered by the survivors as measured by what they
would have received from the decedent within a reasonable degree of probability
if the decedent had survived. I instruct you that the pecuniary injuries
or money losses in this case should not include emotional distress, anguish,
grief and sorrow or loss of emotional satisfaction derived from the society
and companionship of the decedent. These matters, though real and very
distressing, cannot be considered in determining the extent of the financial
or pecuniary loss suffered by the survivors who are represented in this
action by the plaintiff. The financial loss does include, however, not
only actual monies which would have been contributed to or earned for
the benefit of the survivors, but it also includes the reasonable value
of benefits which would have been received in the nature of services,
assistance and care as well as training, guidance and counsel that the
decedent's survivors (such as children, parents or spouse) would have
received had the decedent lived. To determine the amount of damages to
be awarded, i.e., the extent of the financial loss caused by the premature
death of the decedent, all circumstances and probabilities which bear
upon that financial loss may be considered. The following are factors
that you may weigh: 1. You may consider the age and general state of health
of the decedent and of the survivors. [You will recall that there was
testimony concerning their life expectancies as of the date of the decedent's
death (and the decedent's work life expectancy). These figures are in
evidence and are assumptions based on probable length of life which have
been computed from statistical data. They are general rules and you should
therefore use them with caution in any individual case. Except for this
incident the decedent might have lived much longer than estimated by the
actuarial period of time. You should consider the expectancy figures in
your determination of damages, if any, to be awarded for financial losses
in accordance with my instructions in this case, but you must exercise
your sound judgment in computing them. Do not treat them as a necessary
or fixed rule.]See footnote 1 2. You should consider the net earnings
of the decedent after taxes as of the time of his/her death. You should
give due regard to any evidence concerning [the decedent's income tax
liability and you should also consider]See footnote 2 the decedent's potential
future net income during the balance of his/her working life expectancy.
The reason for considering net income is that only that portion of his/her
income after taxes, not gross income, would have been available for the
benefit of the decedent's survivors who are represented by the plaintiff
in this case.
[Add where decedent is a minor child:
In this case, since the decedent is a minor child, you, the jury, should
consider the value of the reasonably anticipated direct financial contributions
which would have been made by the child to the survivors after he/she
became a wage earner. You should also take into consideration any actual
financial contributions, if any, which the decedent, while living, may
have made to the survivors in determining the pecuniary loss to them.
] 3. You should also consider the decedent's own personal expenses. Therefore,
it is necessary that you find to what extent the net earnings of the decedent
were necessary for his/her own use, maintenance and personal needs. In
determining the pecuniary loss of the survivors there must be deducted
from the net earnings of the decedent whatever sums fairly represent expenses
for his/her own maintenance since it is obvious that these monies could
not have been used for the benefit of the survivors. 4. You may also consider
the benefit given by the decedent to a survivor or survivors in the form
or services or assistance rendered by the decedent and in guidance and
training which may have been offered by the decedent to the survivors.
You must determine the reasonable value to be placed on the services or
benefits that will be lost by reason of the death of the decedent.
[Add where decedent is a minor child:
In this case, since the decedent is a minor child, your assessment of
damages for the loss of services and assistance may be somewhat complicated,
so let me elaborate on this point further. In addition to the loss of
anticipated direct financial contributions from the decedent to the survivors
which I noted previously, you, the jury, should also consider the pecuniary
value of the loss of the child's anticipated services to the survivors,
such as household chores and baby-sitting for younger siblings, for example.
You should also consider the value of the parents' [or other survivors,
where applicable] loss of the child's care, companionship, advice and
guidance as they grow older. You must remember, however, that your award
for damages for these losses will be confined to their pecuniary value,
excluding emotional loss. With respect to companionship, care, and advice
you must initially distinguish between their emotional value and their
pecuniary, or economic, value. We recognize that children may prove valuable
services such as companionship, care, advise and guidance over time as
the parents face advanced age or declining health.
Care and companionship, lost by death, to be compensable must be that
which would have provided services substantially similar to those provided
by the "companions" or "homemakers" often hired today
by the aged or the infirm, or substantially equivalent to services provided
by nurses or practical nurses. [Companionship in this sense, however,
will not include true nursing services unless the decedent had or was
likely to have special training.] The value of these services must be
confined to what the marketplace would pay a stranger with similar qualifications
for performing such services. [In interpreting the criteria or "similar
qualifications" you may also attach a pecuniary value to the knowledge
of the parents' likes, dislikes and habits which the decedent may have
possessed.] Remember, however, that no pecuniary value may be attached
to the emotional satisfaction gained by the parent when the child performs
these services.) The loss of the decedent's guidance, advice and counsel
to the survivors is likewise to be confined to its pecuniary element.
It is not the loss simply of the exchange of views, no matter how perceptive,
when the child and parent (or other survivor, where appropriate) are together;
it is certainly not the loss of pleasure which accompanies such an exchange.
Rather, it is the loss of guidance, advice and counsel which all of us
need from time to time in particular situations, for specific purposes,
perhaps as an aid in making a business decision, or a decision affecting
one's life generally, or even advice and counsel needed to relieve depression
or personal dilemmas. It must be the kind of advice and guidance that
could be purchased from a business advisor, a therapist, or a trained
counselor, for instance. Now, taking the foregoing principles into consideration,
it is up to you, the jury, to decide what services the decedent would
have rendered to the survivors, and what the value of these services is.
In doing so, remember that there need be no proof that the parents (or
other survivors, where appropriate) will probably purchase such companionship
and advice; it is sufficient that the deceased would have rendered them
if he/she had lived. 5. In considering those various factors, and in ascertaining
the probabilities of pecuniary loss, you should also consider the decedent's
personality and character, his/her habits and customs and the relationship
that existed between the decedent and the survivors. If you find that
plaintiff is entitled to an award, the amount that is recoverable is comprised
of two parts: (a) the amount of the loss to date; and (b) the present
value of future financial loss.
However, you will announce your verdict in one lump sum of money totaling
these two parts. The first thing that you must determine, once you have
decided that the plaintiff is entitled to recover, is the amount of the
financial loss from the date of death to the present date. To do this
you must agree on an amount which will represent the loss sustained by
the survivors each year, and simply add these amounts for each year elapsed
since the date of decedent's death to the present time. The next determination
you must make is the present value of the loss that may reasonably be
anticipated from this time on into the future. This computation is a little
more complicated. In arriving at such present value of future loss, it
would be improper to take the amount of loss, such as a certain number
of dollars per year, and simply multiply that amount by the number of
years which you find constitutes the time that the decedent would have
continued to contribute to the survivors. The reason for this is that
if plaintiff is entitled to an award, the survivors will receive their
award of damages in one lump sum, whereas, had the decedent lived, the
financial contribution to the survivors would have been spread over a
period of time. A sum of money due at some future time is worth less today
because, if paid today in a lump sum rather than in installments, the
lump sum received today can be invested to earn interest. For example,
if you were to determine that the amount of survivor's yearly loss was
$100 and that this loss would extend over a period of 10 years and then
you simply multiplied $100 x 10, your award of $1,000 would be too much.
This is so because the lump sum awarded now can be invested and produce
interest income. Such an award, therefore, would have a greater value
than just $100 a year. It would have a value of $100 a year plus the interest.
Therefore, if you were to make an award (merely by multiplying $100 x
10 years), the survivors would receive more than their actual loss, or
$1,000 plus the interest it would earn. For this reason, the proper method
of determining the present value of future losses requires that the total
amount of future losses be reduced by a certain amount. This is done by
making an allowance for the interest that this total sum of money would
earn for such period of time. This allowance is calculated by a process
called discounting or reducing the total future financial losses during
the period of expectancy by applying a fixed interest figure. In other
words, you should determine the amount of survivor's yearly loss, if any,
and then award a lump sum which when invested will pay out from that lump
sum, plus the interest it will earn, an amount equal to the yearly loss
to the survivor. Furthermore, the fund you create must be completely used
up or exhausted at the end of the period of the loss. In making this computation
you may also take into account the extent to which inflation will probably
reduce the value of money during the period of the loss. You may determine
to what extent the purchasing power of the dollar will be recovered because
of inflation, you should increase the total amount of your award for anticipated
future financial losses in order to offset the extent by which inflation
will reduce the value of the dollar in the future. You should also know
that any award you may make is not subject to Federal income tax. However,
the interest earned on the amount of your award will be subject to income
taxation. And, therefore, you should increase the fund to account for
the survivors' increased tax liability. So, in evaluating future losses,
there are several factors which should be considered by you in arriving
at your computation of future losses. Remember with respect to future
losses that you are creating a present fund which will be used to pay
plaintiff from the principal sum and the interest it earns in an amount
equal to a survivor's yearly loss so that at the end of the period of
time you determine this loss will be sustained, the fund plus the interest
will be used up. Let me repeat the factors you should consider when determining
an amount to compensate plaintiff for future losses: (1) The amount of
the survivor's yearly loss. (2) The period of time over which said loss
will be incurred in the future, i.e., from today's date forward for that
period of time you determine to be the balance of decedent's work life
expectancy. (Remember you will have already determined the loss from the
date of death to today). (3) That the fund should be discounted to reflect
the interest the fund will earn. (4) The extent to which inflation may
or may not affect the value of the financial loss. (5) That no income
tax will be imposed on the sum awarded but that the interest earned by
the fund will be subject to Federal income tax. I am now going to give
each of you a sheet of paper which contains a step by step illustration
of how to compute the present value of a survivor's future pecuniary loss.
The sheet also contains an example from an imaginary case to show you
how the various formulas are applied. Keep in mind that the numbers used
in the example are not taken from this case and are not intended to suggest
what figures you should use. The amount of any given survivor's financial
loss, interest rates and discount rates must be based upon your own sound
judgment resulting from your understanding and analysis of the evidence
in the case as well as your collective experience and common sense. [An
expert testified as to his/her analysis of future wage increases and discount
rates relative to inflation and gave you his/her opinion of what the discount
and inflation rates should be in this case. giving due regard to his/her
credibility, you may use those trends and rates in arriving at your own
independent single appraisal of the survivors' actual pecuniary losses].See
footnote 3 Arriving at a figure that represents the plaintiff's financial
and pecuniary loss due to the decedent's premature death is difficult.
Remember that your decision should be based upon your own common sense
judgment of the amount of money and the value of services and guidance
decedent would have contributed to the welfare of the plaintiff.
Thus, to recapitulate, if you find plaintiffs are entitled to an award
based upon the rules of law I have given you, then in determining the
amount of award because of the premature death of decedent you must first
determine the amount of financial loss suffered from the date of death
to the present time. To arrive at that figure you must add the amount
of plaintiff's yearly loss for the number of years from the date of death
to the present time. Next, you should add to that amount a sum which represents
the future loss from today calculated in accordance with my instructions.
COMPUTATION OF PRESENT VALUE OF FUTURE FINANCIAL LOSS:
1. Insert here the total amount of money the survivor has lost by reason
of the death. $______ 2. Insert here the average annual rate of interest
for the period of the survivor's loss. _______% 3. Insert here the amount
of money which is necessary to be invested at the rate determined in 2.
in order to yield the loss determine in 2. [Formula: Subtract the rate
set forth in 2. from 100%. Then multiply the number in 1. by that percentage].
$______ 4. Insert here the average annual rate of inflation for the period
of the survivor's loss. __________% 5. Insert here the amount of money
necessary to add to the survivor's loss to account for inflation. [Formula:
Multiply the inflation factor in 4. by the loss set forth in 1.] $__________
6. Insert here the amount of money necessary to compensate the survivor
taking into consideration both investment and inflation factors. [Formula:
Add 3. to 5.]. $__________
Example: Assuming a loss to the survivor of $1,500/year for four years
with an average interest rate of eight percent and an average inflation
rate of six percent: Step One: $1,500/year x four years $6,000
Step Two: Interest rate (averaged for four years) 8%
Step Three: (100% - 8% = 92%) ($6,000 x 92% = $5,520) $5,520
Step Four: Inflation rate (averaged for four years) 6%
Step Five: ($6,000 x 6% = $360) $ 360
Step Six: ($5,520 + $360 = $5,880) $5,880
Footnote: 1 This passage in brackets should be used only where evidence
of the decedent's work life has been offered or where evidence of a survivor's
life expectancy is relevant to a determination of pecuniary loss and the
Court has been asked to take judicial notice of the life expectancy tables.
Footnote: 2 In the event that no evidence has been produced as to decedent's
income tax liability, the trial judge should consider whether this phrase
should be included in the charge.
Footnote: 3 The Committee expresses no opinion as to the need for expert
testimony on interest (discount) or inflation factors. It recognizes that
cases involving wrongful death claims are tried without expert testimony.
The charge is structured to be used in either event.
The Committee also acknowledges that Matthews v. Nelson, 57 N.J. Super.
515 (App. Div. 1959) permits the use of annuity tables contained in the
Civil Practice Rules. Those tables express certain interest rates but
no corresponding inflation factors.
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