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AMI 2217 Measure of Damages—Wrongful Death—Unmarried Minor

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2217
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 22. Damages
AMI 2217 Measure of Damages—Wrongful Death—Unmarried Minor
as administrator of the estate of , the deceased minor, represents the estate of the deceased and also (father, mother, brothers, sisters, or persons in loco parentis for whom claims are made).
[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 should determine [from the evidence] the present value of any [services][and][contributions] that would have been received by the parent(s)[during the child's minority], less providing for the child. You should then fix an amount that would fairly and reasonably compensate the parents for the net value of such [services][and][contributions].
[In the case of the death of a child too young to be capable of earning anything or rendering services of any value, the value of its probable future services to the parent during its minority is necessarily a matter of conjecture, and may be determined by you without the testimony of witnesses.]
[You should also determine an amount from the evidence that would reasonably compensate (names of statutory beneficiaries making claims for mental anguish) for any mental anguish (he)(she)(they)(has)(have) endured as a result of the death of the minor (and reasonably probable to be endured in the future). Mental anguish includes the mental suffering resulting from emotions, such as grief and despair, associated with the loss of a loved one.]
[One][Certain] element(s) of damage may be awarded only to the estate of (deceased minor). [This is][These are][decedent's loss of life][the reasonable value of funeral expenses][and][conscious pain and suffering (and mental anguish) of the deceased prior to death][and][the reasonable value of medical expenses attributable to the fatal injury][and][property damage][and][the value of any (earnings) (profits) (salary) (working time) lost by the deceased prior to death][and][any (scars) (disfigurement) (and) (visible results of the injury) sustained by the deceased prior to death.]
Whether any of the damages sued for have been proved by the evidence is for you to determine.
NOTE ON USE
This instruction should be used when the wrongful death action under Ark. Code Ann. § 16-62-102 is brought for the death of an unmarried minor child.
In actions involving children who are old enough to render services and have demonstrated an intention or disposition to make contributions to the parents after reaching majority, the bracketed phrase “during the child's minority” in the second paragraph, and the entire third paragraph, should be omitted.
In an action involving children too young to render services or make contributions, the bracketed phrase “from the evidence” in the second paragraph should be omitted.
See AMI 2220 for the meaning of “present value.”
If the action is brought for the death of an unborn viable fetus, this instruction should be appropriately modified.
COMMENT
This instruction is revised in accordance with the substantive law created by the 1993 amendment to Ark. Code Ann. § 16-62-102. This amendment included, within the definition of mental anguish, the grief normally associated with the loss of a loved one. The factors formerly enumerated, following the definition of mental anguish, have been eliminated as being inconsistent with the change in the definition of mental anguish affected by the 1993 amendment. These factors were the bases for distinguishing mental anguish from normal grief. E.g., St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977).
When the child is too young to earn anything, a recovery by the parents for pecuniary contributions beyond the child's minority cannot be considered. Interurban Ry. Co. v. Trainer, 150 Ark. 19, 233 S.W. 816 (1921). See also Morel v. Lee, 182 Ark. 985, 33 S.W.2d 1110 (1930). Some Arkansas cases are discussed in McCormick, Damages, 354 (1935); Annot., 14 A.L.R.2d 485 (1950).
When the deceased minor made contributions to his parents and demonstrated a disposition or intention to make contributions to them after reaching his majority, the parents are entitled to recover those anticipated contributions. Missouri Pac. Transp. Co. v. Parker, 200 Ark. 620, 140 S.W.2d 997 (1940), cert. denied, 311 U.S. 696, 61 S. Ct. 133, 85 L.Ed. 450 (1940). “We do not understand the rule to be … that the parent is limited absolutely to a recovery for damages, in case of the wrongful killing of his child, to its earning capacity during the remainder of its minority; but, on the contrary, is entitled to recover such sum as the parent would have received had the child continued to live, considering all the facts and circumstances in the particular case.” Missouri Pac. R. Co. v. McKinney, 189 Ark. 69, 73, 71 S.W.2d 180, 182 (1934). See also Southwestern Gas & Electric Co. v. Godfrey, 178 Ark. 103, 10 S.W.2d 894 (1928); and St. Louis, I.M. & S. Ry. Co. v. Jacks, 105 Ark. 347, 151 S.W. 706 (1912).
Arkansas seems to follow the general rule that the probable cost of supporting the child should be deducted from the value of his services. Missouri Pac. Transp. Co. v. Parker, supra; Morel v. Lee, supra; and Interurban Ry. Co. v. Trainer, supra. Some opinions, however, mention loss of services without reference to a deduction of expenses of the child. See, e.g., St. Louis–San Francisco Ry. Co. v. McCarn, 212 Ark. 287, 205 S.W.2d 704 (1947); St. Louis S.F. Ry. Co. v. Perryman, 213 Ark. 550, 211 S.W.2d 647 (1948); and Hines v. Johnson, 145 Ark. 592, 224 S.W. 989 (1920). See McCormick, Damages, 353 (1935), fn. 89.
No evidence is necessary to establish the value of the services of a child so young as to be incapable of earning. Hines, supra. In Missouri Pac. R. Co. v. Maxwell, 194 Ark. 938, 944, 109 S.W.2d 1254, 1258 (1937), the following instruction was approved: “You are instructed that where damages are claimed for the death of a child incapable of earning anything or rendering services of any value, the value of its probable future service to the parent during its minority is a matter of conjecture and may be determined by the jury without the testimony of witnesses.” The worth of the child's services to the parents should be reduced to its present value. St. Louis, I.M. & S. Ry. Co. v. Jacks, supra.
A parent's fault may reduce or bar recovery for the wrongful death of the child. See Stull v. Ragsdale, 273 Ark. 277, 620 S.W.2d 264 (1981).
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.
Future mental anguish is recoverable. Knoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989).
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).
For a discussion of damages recoverable in the case of an unemancipated minor, see Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989).
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).
An unborn viable fetus is a “person” for purposes of the Arkansas wrongful death statute. Aka v. Jefferson Hospital Ass'n, Inc., 344 Ark. 627, 42 S.W.3d 508 (2001), overruling Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995); see also Act 1265 of 2001 (amending Ark. Code Ann. § 16-62-102(a)); McCoy v. Crumby, 353 Ark. 251, 106 S.W.3d 462 (2003).
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