WPI 32.06.01 Measure of Damages—Injury to Child—Action Brought by Parent or Legal Guardian (RCW...
6 WAPRAC WPI 32.06.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 32.06.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part IV. Damages
Chapter 32. Damages—Injury to Spouse, Domestic Partner, Parent, or Child
WPI 32.06.01 Measure of Damages—Injury to Child—Action Brought by Parent or Legal Guardian (RCW 4.24.010)
It is the duty of the court to instruct you as to the measure of damages. [By instructing you on damages, the court does not mean to suggest for which party your verdict should be rendered.
If your verdict is for the plaintiff [parent] [legal guardian], then] you must determine the amount of money that will reasonably and fairly compensate the plaintiff for such damages to plaintiff that you find were proximately caused by the injury to the child.
[If you find for the plaintiff] [your verdict must include the following undisputed items:
[insert undisputed items and amounts]
In addition,] you should consider the following items:
1. Economic Damages
[(a)] [The reasonable value of necessary medical care, treatment, and services received by(name of child).]
[(b)] [The economic value of services and support(name of child)reasonably would have been expected to contribute to(name of parents or legal guardians)from the date of(name of child)'s injury [until [he] [she] would have attained the age of majority], less the cost to(name of parents or legal guardians)of(name of child)'s support and maintenance [during that interval].]
[(c)] [What support the child reasonably would have been expected to contribute to the plaintiff up to the present time if the child had not been injured.]
2. Noneconomic Damages
[(a)] [The loss of love and injury to or the destruction of the parent-child relationship between(name of child)and(name of parents or legal guardians), including the grief, mental anguish, and suffering of(name of parents or legal guardians)as a result of(name of child)'s injury.]
[(b)] [The loss of emotional support of(name of child)to(name of parents or legal guardians).]
[(c)] [The loss of companionship, including mutual society and protection, of(name of child)to(name of parents or legal guardians).]
In making your determination, you should take into account(name of child)'s age, health, life expectancy, character, and habits, as well as all other relevant factors.
The burden of proving damages rests upon the plaintiff. It is for you to determine, based upon the evidence, whether any damages have been proved by a preponderance of the evidence.
Your award must be based upon evidence and not upon speculation, guess, or conjecture.
The law has not furnished us with any fixed standards by which to measure noneconomic damages. With reference to these matters you must be governed by your own judgment, by the evidence in the case, and by these instructions.
NOTE ON USE
Use for actions filed by a parent or legal guardian under RCW 4.24.010 for injury to a minor child in whose life the parent or legal guardian has had a “significant involvement.”
Use bracketed material as applicable. In selecting the bracketed phrases relating to loss of services or loss of support, care must be taken to avoid duplication and overlapping of damage elements. Either loss of services or loss of support, or both, may apply in a particular case. In a directed verdict or admitted liability case, delete the first two sets of bracketed material and capitalize the first words that follow the deleted material.
A claim by a guardian ad litem may be joined in the same action with this direct claim by the parent under RCW 4.24.010. In that event, the bracketed phrase relating to the present cash value of future earnings may be used. The child is the proper beneficiary of a claim such as loss of future earnings. Therefore, it may be necessary to cover that damage claim in a separate instruction because it is not directly recoverable by a parent plaintiff. If the parent is, in fact, the guardian ad litem, it may be practical to include that bracketed phrase in this instruction. Care must be taken to avoid duplication of damage elements.
This instruction has been revised for this edition to reflect these significant amendments to the statute.
In 2019, the Legislature substantially amended statutes applicable to actions involving the injury or death of a child. RCW 4.24.010, which previously provided a cause of action to a “mother or father, or both,” was amended to provide an action to a “parent or legal guardian.” Laws of 2019, Chapter 59, § 5.
The statute, which previously provided a cause of action for injury or death to a child on whom a parent was “dependent on support,” also was amended to strike the economic dependency requirement and replace it with a requirement that the parent had “significant involvement in the life of an adult child.” Laws of 2019, Chapter 59, § 5. The amendments define “significant involvement” as “demonstrated support of an emotional, psychological, or financial nature within the parent-child relationship, at or reasonably near the time of death, or at or reasonably near the time of the incident causing death, including either giving or receiving emotional, psychological, or financial support to or from the child.” Laws of 2019, Chapter 59, § 5.
The statute, which previously did not delineate recoverable damages, was amended to expressly provide: “In addition to recovering damages for the child's health care expenses, loss of the child's services, loss of the child's financial support, and other economic losses, damages may be also recovered under this section for the loss of love and companionship of the child, loss of the child's emotional support, and for injury to or destruction of the parent-child relationship, in such amounts as determined by a trier of fact to be just under all the circumstances of the case.” Laws of 2019, Chapter 59, § 5.
The amendments retroactively apply to “all claims that are not time barred, as well as any claims pending in any court on the effective date of this section.” Laws of 2019, Chapter 59, § 6.
Elements of economic and noneconomic damages are further delineated in RCW 4.56.250(1).
In Hinzman v. Palmanteer, 81 Wn.2d 327, 329, 501 P.2d 1228 (1972), disapproved of on other grounds, Wooldridge v. Woolett, 96 Wn.2d 659, 638 P.2d 566 (1981), the court held that “loss of love and companionship” and “destruction of the parent-child relationship” are separate and distinct items under RCW 4.24.010 and that damages may be allowed for each. That case also holds that it is not error to instruct in the words of RCW 4.24.010. Hinzman, 81 Wn.2d at 329.
In Wilson v. Lund, 80 Wn.2d 91, 105, 491 P.2d 1287 (1971), an action for the death of a child brought pursuant to RCW 4.24.010, the trial court instructed that the jury was not to consider parental grief, mental anguish, or suffering (see the concurring opinion of Justice Wright). The Washington Supreme Court reversed, construing the language “loss of love … and … injury to or destruction of the parent-child relationship” as providing recovery for parental grief, mental anguish, and suffering in cases involving the wrongful death of or injury to a child under RCW 4.24.010. Wilson, 80 Wn.2d at 105–06.
In Burt v. Ross, 43 Wn.App. 129, 131–32, 715 P.2d 538 (1986), the court held that a 20-year old is not a minor for purposes of RCW 4.24.010. Damages for loss of companionship or for injury to or destruction of the parent-child relationship are not limited to the period of the child's minority. Balmer v. Dilley, 81 Wn.2d 367, 371–72, 502 P.2d 456 (1972).
A parent cannot recover under RCW 4.24.010 for loss of an injured minor's services without proof that some services would have been performed. Lofgren v. W. Wash. Corp. of Seventh Day Adventists, 65 Wn.2d 144, 396 P.2d 139 (1964); see also Clark v. Icicle Irrigation Dist., 72 Wn.2d 201, 208–10, 432 P.2d 541 (1967) (there must be substantial evidence to support recovery for loss of services of a child).
RCW 4.22.020 provides in part that “[i]n an action brought for wrongful death or loss of consortium, the contributory fault of the decedent or injured person shall be imputed to the claimant in that action.” Traditionally, children under six have not been held contributorily negligent. Price v. Kitsap Transit, 125 Wn.2d 456, 461, 886 P.2d 556 (1994); Bauman v. Crawford, 104 Wn.2d 241, 244, 704 P.2d 1181 (1985). The statute does not state whether the fault of a child under six can be imputed to the child's parents in an action brought pursuant to RCW 4.24.010. For a related discussion, see the Comment to WPI 11.03 (Child Under Six Years of Age Incapable of Contributory Negligence).
A cause of action for alienation of a child's affection has been approved by the Court of Appeals. See Waller v. State, 64 Wn.App. 318, 338–39, 824 P.2d 1225 (1992); Strode v. Gleason, 9 Wn.App. 13, 510 P.2d 250, 60 A.L.R.3d 924 (1973). But see Babcock v. State, 112 Wn.2d 83, 107–08, 768 P.2d 481 (1989), on reconsideration affirmed in part, reversed in part, 116 Wn.2d 596, 809 P.2d 143 (1991) (stopping short of recognizing this cause of action, holding instead that even if the cause of action exists, the plaintiff had not proved the necessary elements from Strode). The relationship between the cause of action for alienation of a child's affection and the provision of RCW 4.24.010 that allows a parent to recover damages for injury to or destruction of the parent-child relationship is not clear. The WPI Committee could locate no cases addressing this issue.
See WPI 31.00 (Introduction) and the Comment to WPI 30.01.01 (Measure of Economic and Noneconomic Damages—Personal Injury—No Contributory Negligence).
See the Comment to WPI 31.02.01 (Measure of Damages—Wrongful Death—Action for Benefit of Spouse/State Registered Domestic Partner).
[Current as of April 2021.]
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