Damages – Economic, Non-economic, and Punitive

You will hear a lot of people talking about “damages” during a wrongful death case. “Damages” can refer to the amount of money you have lost and the suffering you have undergone as a result of the loss of your loved one, but “damages” also refers to the amount of money a jury decides is the proper compensation for your losses, or the amount you ultimately settle for. So the word “damages” refers to both your losses, and the money meant to compensate for those losses.

In a wrongful death case, damages are available only pursuant to ORS 30.020, so the damages are specified precisely in the statute. They are:

• Charges for medical services;
• Charges for burial and memorial services;
• Compensation that the decedent would have been entitled to for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death;
• Compensation for “pecuniary loss” to the decedent’s estate;
• Compensation for the loss of the decedent’s “society, companionship and services” to the decedent’s spouse, children, stepchildren, stepparents, and parents;
• Punitive damages that the decedent would have been entitled to had he/she lived.

Some notes about this list: Several of these terms are not clearly defined in Oregon law. Two of the big ones are “pecuniary loss” and “society, companionship and services.”

“Pecuniary loss” certainly includes all the money that a person would have earned during the rest of his or her lifetime, minus the money that would have been spent on his self or her self. “Pecuniary” simply means related to money. Figuring out that number requires hiring an economist who specializes in this type of calculation. The economist will look at the person’s education, history, tax returns, and so forth, and will determine the amount of money the person would have likely made over the course of a normal lifetime. You do not need to worry about hiring experts like economists – these tasks will be taken care of by the law firm you hire to represent the estate.

A good wrongful death lawyer will not stop here, but will instead be creative with these terms. For example, if a boy loses his father, “pecuniary loss” may well include the loss that the boy suffers by not now having a father who can show him how to ride a paper route, or teach him how to use a Day Planner to organize his day, or how to negotiate when buying a car, or help him start his own business (keep in mind these are simple examples). Is that sort of thing really a “pecuniary” loss? Does the lawyer have to prove that the father really would have done all these things? The law gives no clear answer, but there is certainly a good argument that it ought to be included.

“Society, companionship and services” certainly includes the value of a person’s company and services at home. The loss of a man who used to do the dishes every night is the loss to a family of the warmth and comfort of feeling taken care of. Part of the job of a wrongful death suit is to put a dollar value on that loss. It is also the loss of a service that is worth money. That should be compensated as well.

The takeaway from this lack of clarity is that you and your lawyer should work together to enumerate every loss. You should go through what has been lost in great depth. And all the losses should be fit into the law to the greatest extent possible so as to receive fair compensation for all that has been lost.