Hedonic Damages for the Loss of Enjoyment of Life

August 16, 2009

By: David K. Jaffe

There are two types of damage awards in personal injury, wrongful death or survival actions: economic and noneconomic damages.[1] Economic or "special" damages include past and future medical expenses, past and future lost earnings and replacement costs for the lost ability to perform household tasks. Noneconomic or "general" damages include pain and suffering, loss of consortium and permanent physical disability. The courts considering non-economic damages view them as either a component of pain and suffering, the equivalent of physical or permanent disability or as an element of damage separate and distinct from pain and suffering and permanent injury.[2]

Hedonic damages, also referred to in different jurisdictions as damages for the "loss of enjoyment of life," "loss of life's pleasures" and lost value of life" is a fairly recent appellation for an established damage award. Derived from the Greek word "hedonikos"[3] meaning pleasure or pleasurable, the term "hedonic damages" was first introduced into legal parlance by economist Stanley V. Smith in a 1985 case.[4]

Hedonic damages and those similarly designated are awarded primarily in personal injury, survival and wrongful death actions. Hedonic damage awards in personal injury actions have, for over half a century, been recognized by courts throughout the United States.

Noneconomic damages encompass a variety of overlapping (and imprecise) categories such as pain, mental anguish, anxiety, emotional distress, and nervous shock.[5] Loss of enjoyment of life (a.k.a. hedonic damages), which might be understood as the deprivation of the normal pleasures of living (the opposite of pain), also represents a compensable type of nonpecuniary harm. Finally, derivative claims, such as loss of consortium, companionship, and society (essentially for the deprivation of the positive emotional support previously received from the injured victim), fall within the domain of noneconomic damages.

By compensating plaintiffs for their medical expenses and lost earnings, courts treat the physical and economic aspects of bodily injury as pecuniary damages, but the emotional aspects as such injuries remain within the category of nonpecuniary damages. Courts routinely draw a distinction between "special" and "general" damages, the former denoting economic harms (e.g., past medical expenses) and requiring specific proof. General damages, I contrast, have an entirely open-ended quality to them.

In its Restatement of the Law of Torts, the American Law Institute has struggled to make sense of these characterizations. The Second Restatement offered the following explanation:

The sensations caused by harm to the body or by pain or humiliation are not in any way analogous to a pecuniary loss, and a sum of money is not the equivalent of peace of mind. Nevertheless, damages given for pain and humiliation are called compensatory. They give to the injured person some pecuniary return for what he has suffered or is likely to suffer. There is no scale by which the detriment caused by suffering can be measured and hence there can be only a very rough correspondence between the amount awarded as damages and the extent of the suffering.[6]

Connecticut has evidenced a progressive approach toward the admission of hedonic damages in personal injury and wrongful death actions, being the first jurisdiction to permit recovery for hedonic damages under the State wrongful death statute.[7] In Estate of Katsekos v. Nolan,[8] a medical malpractice action, the Connecticut Supreme Court permitted the decedent's estate to recover damages for the loss of enjoyment of life under the wrongful death statute, Conn. Gen. Stat. § 52-555. The jury returned a general verdict in the amount of $400,000 against the defendants for negligent treatment and failure to diagnose internal bleeding which resulted in the death of the plaintiff's decedent following the delivery of her fourth child. The named defendant obstetrician and defendant internal medicine specialist appealed the award as excessive. In a unanimous opinion, the Court noted that § 52-555 entitled the plaintiff to "just damages" which include: "(1) the value of the decedent's lost earning capacity less deductions for her necessary living expenses and taking into consideration that a present cash payment will be made, (2) compensation for the destruction of her capacity to carry on and enjoy life's activities in a way she would have done had she lived, and (3) compensation for conscious pain and suffering."[9]

This appears to have been the first time that any court permitted a recovery for hedonic damages when the victim was no longer living.[10] The Court in Katsekos admitted that "our rule for assessing damages in death cases gives no precise mathematical formulas for the jury to apply," and that any assessment of damages "must of necessity represent a crude monetary forecast of how the decedent's life would have evolved."[11] In closing, the Court noted that the defendants' calculations, which were employed to show the alleged excessiveness of the jury's verdict, only considered lost earning capacity, giving "no consideration to the award of a amount based on the destruction of the capacity to carry on life's activities," or the pain and suffering of the decedent.[12]

The decision in Katsekos is consistent with the holdings of earlier Connecticut decisions allowing awards for the loss of enjoyment of life. In Chase v. Fitzgerald, the court held that any wrongful death award for a person not employed outside the home should not be based upon the person's lost earning capacity, but rather on the loss of enjoyment of life's activities.[13] In Floyd v. Fruit Industries, Inc., a wrongful death action for a passenger in an automobile accident, the Court stated that evidence of the decedent's hobbies and recreations would be admissible and could operate to enhance the amount of the verdict awarded for "the destruction of the capacity to carry on life's activities apart from any evidence of destruction of earning capacity."[14]

The Second Circuit followed the rationale of Chase and Floyd in Feldman v. Allegheny Airlines, Inc., by upholding an award for the destruction of the capacity to enjoy life's non-remunerative activities in a wrongful death action for a twenty-five-old killed in an airplane crash.[15] The Court held that § 52-555 damages are measured by the loss to the decedent of the value of her life, not by the value of the estate she would have left if she had lived a full life.[16]

The award of "just damages" as defined in Katsekos was upheld as the "correct test" in Kiniry v. Danbury Hospital.[17] In Kiniry, the Court upheld a jury award of $1,800,000 where the plaintiff claimed only $6,500 in "special" damages. Kiniry was a medical malpractice action against the defendant hospital for its negligent treatment and failure to diagnose a skull fracture and epidural hematoma, which caused the death of the plaintiff's decedent. The Court attributed the bulk of the award to lost earning capacity and loss of life's enjoyment. In support of the hedonic damage award, the Court noted that the evidence portrayed the decedent "as a healthy, happy, well-balanced family man," whom the jury determined "would have continued to live a rich, full and happy life."[18] This type of evidence was important to the Court in Katsekos as well, where the evidence showed the decedent was happy person. As a dedicate mother and homemaker with many outside activities, she was in good health prior to the delivery of her fourth child - the incident that caused her death.[19]

The decision in Kiniry reaffirmed that a jury verdict should not be disturbed by the trial judge or reviewing court "except when the verdict is so plainly excessive or exorbitant that it shocks the sense of justice because it compels the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption."[20]> The jury determines damages, which in wrongful death actions must "measure the loss of the gift of life, as well as the loss of earnings, and the other elements of damages relevant to the case before them."[21] Although jury findings with regard to damage awards receive great deference, these determinations are not inviolate. Jury verdicts are set aside if they "shock the sense of justice."[22]

The plaintiff initially received such a verdict in Zarrelli v. Barnum Festival Society, Inc.[23] In Zarelli, a twenty-two year old woman run over by the rear wheels of a flatbed trailer died twenty-five days later from the injuries she received. A jury awarded the plaintiffs $65,000 which it later reduced to $33, 750 because it found the plaintiffs' decedent forty-five percent comparatively negligent. In reviewing the adequacy of the jury verdict, the Appellate Court concluded that "we must 'bite the bullet' and, for the first time in Connecticut, find in the necessarily uncertain area of a jury's valuation of a human life, such an award inadequate as a matter of law."[24] The court recognized the problem expressed in Floyd that the assessment of damages "defies any precise mathematical computation,"[25] and in wrongful death actions is a task peculiarly within the expertise of the jury. Nevertheless, the court remanded the case for a new trial limited to the issue of damages because the jury's determination was so inadequate. Like the courts in Katsekos and Kiniry, the Court in Zarelli noted the decedent was a young, active, healthy person who intended to marry four days after the accident.[26]

Connecticut courts have held that a large jury verdict does not necessarily mean that the award is excessive when an award for hedonic damages occurs in personal injury actions. In Maher v. Griffin Hospital, the Court upheld a verdict of $9,000,000 awarded by a jury to the plaintiffs in a medical malpractice action.[27] The plaintiffs alleged negligence in the delivery and immediate post-delivery treatment of the named minor plaintiff. The defendant had inadequate equipment and/or delivery room person