Losing a Child in a New Jersey Accident
March 4, 2019
BY: Domhnall O'Cathain
On a Sunday evening in February 2012, a 19-year-old boy was hit by a car while on his bicycle. After being hit by the car, the boy was knocked to the ground where he tragically bled to death. There was a dispute as to how the crash happened and who was at fault.
The boy didn’t have children and wasn’t married, so his mother filed a lawsuit against the driver of the car. The case went to trial and the jury found both the driver and the boy at fault, with more blame going to the driver of the car.
After deciding fault, the jury had to consider what damages to award. The mother made two claims for damages: (1) the pain and suffering her son suffered while bleeding the death; and (2) the loss to herself now that she doesn’t have her son anymore.
The mother had had her own difficulties, living in a shelter for a year before her son passed away. But the jury also heard that the son had started to save some money to buy a home for all the family one day, even though the mother said that she would never accept money from her children. They spoke every night and saw each other a few times a week.
At the end of the case, the jury awarded compensation for (1) the pain and suffering of the boy (Survivorship Claim); and (2) the loss to the mother (Wrongful Death Claim).
The attorneys for the defendants and the insurance company were upset by the money for the loss to the mother. They argued that in New Jersey the mother needed to show a financial injury and could not simply get money for the emotional loss of losing her son.
The problem for the mother is that the defendants had a very good argument. New Jersey is one of only 15 states that restricts parents from getting compensated for the emotional loss of losing a child. The other states allow parents to be compensated for the emotional trauma and grief of losing a child. New Jersey is still in the dark ages on this issue.
The case went to the New Jersey Appellate Division which, thankfully, decided that the jury verdict was good. The Court looked at the testimony of the mother and ruled that there was enough evidence to show that the son would have helped the mother in ways that have a financial value; for example, getting a family home and doing chores that might otherwise have to be paid for.
The Court cited an older New Jersey case that ruled that a jury can calculate the loss of advice, guidance and counsel to the parent by deciding what the marketplace would pay for services, such as doing chores for the parent, advising on money as the parent ages, and giving comfort during difficult times instead of hiring a therapist.
You can learn more about the case by reading it: Dutton v. Rando, A-1049-16T1 (Appellate Division, February 26, 2019).
To most people the emotional pain suffered by a parent who has lost a child is obvious. We all hope and expect that our children will live much longer than us. We want them to have their own families and build a loving home, with children and grandchildren. If we lose a child, it is a loss that disrupts what we consider to be the natural order.
It is time for New Jersey politicians to join the states that have expanded recovery for grief and emotional pain in Wrongful Death cases where parents have lost a child. You can do your part by writing to your local representative to ask for change.