Lens on Children, Wrongful Death, & Punitive Damages

Jill Wieber Lens has posted to SSRN Children, Wrongful Death, & Punitive Damages.  The abstract provides:

Starting in the mid-nineteenth century, state legislatures created wrongful death claims, including claims for bereaved parents against the tortfeasor who killed their child. Legislatures limited recoverable damages to pecuniary damages, meaning parents could recover the lost economic contributions they expected to receive from their child during his minority, minus the costs of raising the child. That pecuniary damage measure still controls today, with most states now also allowing recovery of noneconomic loss-of-relationship damages, although many states also cap the recovery of noneconomic damages. In sum, parents’ recovery of damages for their child’s death—a personal and cultural tragedy—is limited to pecuniary damages, which today’s parents lack, and a possibly capped noneconomic damage award.

The first Part of this Article explores the historical context—the antiquated assumptions about children—existing when state legislatures adopted the pecuniary measure. Those assumptions rely on two realities of the nineteenth-century child—that he was likely to die in his youth, and that he was valued economically. The infant and child mortality rates were high in the nineteenth century, which historians agree caused parents to expect at least one of their children to die and possibly also caused parents to be indifferent to that child’s death. Relatedly, parents valued their children economically, most evident in still-increasing prevalence of child labor in the nineteenth century. Under these realities, a pecuniary measure of damages was appropriate. But these realities of the nineteenth-century child long ago faded. Child death is now a personal and cultural tragedy, a reality in which pecuniary damages make no sense. 

The second Part of this Article suggests the adoption of a remedy consistent with the current tragedy of child death. That remedy is the exclusive use of punitive damages in wrongful death of children cases, a remedy for parents that is actually a substantive response to the death of a child and that could provide parents something significant and meaningful. The use of punitive damages is consistent with private redress punitive damage theory, empowering victims to obtain damages for the moral injury suffered, allowing parents to recover damages for the moral injury they suffer when their child is tortiously killed. The appreciation that parents suffer a moral injury better encapsulates parents’ actual experience—an experience involving much more than compensable grief. Also, punitive damages, unlike compensatory damages, actually express the wrongfulness of the wrongful death of a child.