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AMI2216Measure of Damages—Wrongful Death—Cause of Action

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2216
Arkansas Model Jury Instructions-Civil
November 2020 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 22. Damages
AMI 2216 Measure of Damages—Wrongful Death—Cause of Action
as administrator of the estate of , deceased, represents the estate of the deceased and also (names of wife or husband, children, father, mother, sisters, or persons in loco parentis for whom claims are made).
The administrator is suing for the following elements of damage on behalf of [(wife or husband)] [and] [(names of statutory beneficiaries)]:
(a) [Pecuniary injuries sustained by ((wife or husband)) (and) ((names of statutory beneficiaries entitled to recover for pecuniary injuries))].
(b) [Mental anguish suffered (and reasonably probable to be suffered in the future) by ((wife or husband)) (and) ((names of statutory beneficiaries making claim))].
(c) [Loss of consortium of (wife or husband)].
First, let me explain to you what is meant by the term “pecuniary injuries.” This term refers to the present value of benefits, including money, goods, and services, that the deceased would have contributed to (wife or husband)[and](names of appropriate statutory beneficiaries) had [he][she] lived. In making your determination of pecuniary injuries, you may consider the following factors concerning the deceased:
(a) [What the deceased customarily contributed in the past and might have been reasonably expected to contribute had [he][she] lived.]
(b) [The period during which any beneficiary might reasonably expect to have received contributions from the deceased.]
(c) [What the deceased earned and might have been reasonably expected to earn in the future.]
(d) [What the deceased spent for customary personal expenses and other deductions.]
(e) [What instruction, moral training, and supervision of education the deceased might have reasonably given [his][her](child)(children) had [he][she] lived.]
(f) [The deceased's health.]
(g) [The deceased's habits of industry, sobriety, and thrift.]
(h) [The deceased's occupation.]
(i) [The life expectancy of the deceased and of (wife or husband)(and)(names of appropriate statutory beneficiaries).]
(j) [The time that will elapse before the deceased's (child)(children) reach(es) majority.]
Second, let me explain to you what is meant by mental anguish. This term means the mental suffering resulting from emotions, such as grief and despair, associated with the loss of a loved one.
Third, let me explain what is meant by the term “consortium.” Consortium refers to the society, services, companionship, and marriage relationship of the [husband][wife].
The administrator is also suing for the following elements of damage on behalf of the estate:
(a) [The decedent's loss of life];
(b) [The reasonable value of funeral expenses];
(c) [Property damage];
(d) [Conscious pain and suffering of the deceased prior to (his)(her) death];
(e) [Medical expenses attributable to the fatal injury];
(f) [The value of any (earnings)(profits)(salary)(working time) lost by the deceased person prior to (his)(her) death];
(g) [Any (scars)(disfigurement)(and)(visible results of the injury) sustained by the deceased prior to (his)(her) death];
(h) [The reasonable expenses of any necessary help in (his)(her) home that prior to (his)(her) death was required as a result of the deceased's injuries].
[If you decide for the administrator on the question of liability (against any party (he)(she) is suing)] [If an interrogatory requires you to assess the damages of the administrator], you must fix the amount of money that will reasonably and fairly compensate [(wife or
husband)] [and] [(names of other statutory beneficiaries making claims)] [and][the estate] for those elements of damage sustained [which you find were proximately caused by the [negligence][or][fault] of (defendant)].
Whether any of the damages sued for on behalf of [(wife or husband)] [and] [(names of statutory beneficiaries making claim)] have been proved by the evidence is for you to determine.
NOTE ON USE
If the deceased was an unmarried minor, use AMI 2217.
The elements justified by the evidence should first be selected; then only the explanations that relate to the elements selected should be used.
When the case is submitted on interrogatories which cover the question of proximate cause, then the final bracketed clause in the next to last paragraph referring to proximate cause should be omitted.
See AMI 2220 for the meaning of “present value.”
COMMENT
The definition of mental anguish in this instruction was revised in accordance with the 1993 amendment to Ark. Code Ann. § 16-62-102 to include the grief normally associated with the loss of a loved one, and to eliminate the factors formerly enumerated as the basis for distinguishing mental anguish from normal grief. See, e.g., St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977).
The action for wrongful death is entirely statutory and did not exist at common law. The Arkansas Wrongful Death Statute is more comprehensive than that of most other states.
The pecuniary injury is determined by the contributions the deceased would have made during the lifetime of the deceased or the beneficiary, whichever is shorter. Southern Nat. Ins. Co. v. Williams, 224 Ark. 938, 277 S.W.2d 487 (1955); Missouri Pac. R. Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944).
Contributions to a minor child ordinarily are computed only during his minority. Missouri Pac. R. Co. v. Gilbert, supra. Under special circumstances, however, a child can recover for pecuniary contributions beyond minority. Strahan v. Webb, 231 Ark. 426, 330 S.W.2d 291 (1959). Contributions must be reduced to present value. Acco Transp. Co. v. Smith, 207 Ark. 70, 178 S.W.2d 1011 (1944).
Loss of parental care and guidance for a minor child may be computed as a part of the pecuniary injury. Missouri Pac. R. Co. v. Creekmore, 193 Ark. 722, 102 S.W.2d 553 (1937); St. Louis, I.M. & S. Ry. Co. v. Standifer, 81 Ark. 275, 99 S.W. 81 (1907). A parent may recover pecuniary loss for the death of an adult child, if there is reasonable expectation of pecuniary benefit from the continued life of the child. Fordyce v. McCants, 51 Ark. 509, 11 S.W. 694 (1889).
Fountain v. Chicago, R.I. & P. Ry., 243 Ark. 947, 422 S.W.2d 878 (1968), overrules Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961); and holds that damages for mental anguish may be awarded to the surviving spouse, children, father, mother, brother, sister, or person standing in loco parentis, without regard to whether they are heirs or next of kin.
A stepchild to whom the deceased stood in loco parentis and the deceased's adopted child may recover for pecuniary losses and mental anguish. Moon Distributors, Inc. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968).
Either spouse can recover for loss of consortium. Ark. Code Ann. § 16-62-102.
Future mental anguish is recoverable. Knoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989).
For cases involving conscious pain and suffering prior to death, see New Prospect Drilling Co. v. First Commercial Trust, N.A., 332 Ark. 466, 966 S.W.2d 233 (1998); Chambliss v. Brinton, 229 Ark. 526, 317 S.W.2d 143 (1958); Southern Nat. Ins. Co. v. Williams, supra; Sinclair Refining Co. v. Henderson, 197 Ark. 319, 122 S.W.2d 580 (1938).
For the right of an estate to recover funeral expenses, see King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959). A husband may recover expenses of his wife's funeral on the theory that it is his duty to pay them. There being no corresponding duty on the part of a widow to pay the expenses of her husband's funeral, these can only be recovered by the estate of the deceased husband through a personal representative. McCormick v. Sexton, 239 Ark. 29, 386 S.W.2d 930 (1965).
See Henry Woods, Arkansas Model Jury Instructions: Wrongful Death, 20 Ark. L. Rev. 73 (1966).
Arkansas Supreme Court decisions permit the recovery of punitive damages in a wrongful death case. Vickery v. Ballentine, 293 Ark. 54, 732 S.W.2d 160 (1987); Fields v. Huff, 510 F. Supp. 238 (E.D. Ark. 1981). See also Comment, The Arkansas Wrongful Death Statute, 35 Ark. L. Rev. 294, 306 (1981).
As a result of a 2001 amendment to Ark. Code Ann. § 16-62-101, damages for the decedent's “loss of life” are now recoverable by the estate as an independent element of damage. These are the damages that would compensate a decedent for the loss of the value that a decedent would have placed on his or her own life. Durham v. Marberry, 356 Ark. 481, 156 S.W.3d 242 (2004).
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