Damages--wrongful death of children--lost income of parents
The portion of a wrongful death judgment awarding plaintiffs sums for income they might
reasonably have expected to receive from their deceased daughters was remanded where there
was no evidence tending to show that the deceased had ever expressed an intent to provide any of
their income to their parents. Although they were brought up in a culture within which intra-
family financial assistance may have been favored, absolutely no evidence tended to show that the
deceased, specifically, would grow up to follow this example. N.C.G.S. § 28A-18-2(b)(4).
Harry B. Crow, Jr. and Charles B. Brooks, II, for plaintiffs-
appellees.
Cranfill, Sumner & Hartzog, by William C. Robinson, for
defendants-appellees Scott Lee Talford and Robert Jordan, Jr.
No brief filed.
Caudle & Spears, P.A., by Lloyd C. Caudle, for unnamed
defendant-appellant North Carolina Farm Bureau Mutual
Insurance Company.
JOHN, Judge.
Unnamed defendant North Carolina Farm Bureau Mutual Insurance
Company (Farm Bureau) appeals the trial court's judgment in favor
of plaintiffs Arun and Rayetta Bahl, administrators of the estates
of Rene Lorraine Bahl (Rene) and Riana Elizabeth Bahl (Riana)
(jointly, the deceased). We vacate the judgment in part andremand.
Pertinent facts and procedural history include the following:
On 10 January 1995, Rene, age eleven, and Riana, age sixteen,
daughters of plaintiffs, were passengers in an automobile operatedby Michael Vega (Vega) in Union County. A vehicle driven by
defendant Scott Lee Talford (Talford) and owned by defendant Robert
Jordan (Jordan) struck the Vega automobile in the rear, whereupon
it collided with a third vehicle, resulting in the deaths of Rene
and Riana.
Plaintiffs filed separate actions on behalf of the estates of
the deceased against Talford and Jordan 16 April 1996, alleging
Talford's negligence had been a proximate cause of the deaths of
Rene and Riana. Talford and Jordan answered, and Farm Bureau also
filed answer in each case, as well as a third party complaint
against Vega, alleging his negligence had caused the collision.
Plaintiffs' subsequently amended complaints included wrongful death
claims against Vega, and the amended answers of Talford and Jordan
asserted cross-claims against Vega for contribution. On 9 May 1998, plaintiffs settled with Vega for a total sum of
$20,000.00 and thereafter dismissed with prejudice all pending
claims against him. The trial court thereupon granted Vega'smotion to dismiss with prejudice the remaining claims against him
by Talford, Jordan and Farm Bureau.
Plaintiffs' actions were consolidated for jury trial and heard
21 July 1998. Prior to trial, Talford placed into the record his
admission
that on the date of the alleged accident he
was negligent and that negligence was a
proximate cause of the collision and the death
of the two minor deceased plaintiffs.
As a consequence, the sole issue for jury resolution was that of
damages. Both plaintiffs testified at trial and also called as
witnesses two state highway patrol officers and Dr. Charles Alford
(Alford).
The trial court accepted Alford as “an expert witness in the
field of forensic economics and projection of future income streams
of children.” Alford expressed his opinion that the earnings of
Rene and Riana “through [their] parents life expectancy after
subtracting personal subsistence expenditures would be in present
value after taxes” the sums of $228,077.00 and $293,912.00,
respectively. Alford acknowledged the amounts constituted
estimates and represented the “discretionary income that would have
been available to the girls,” or money that “they could have used
had they elected for the support of their parents.”
At the close of plaintiffs' evidence, defendants moved for
directed verdict, see N.C.G.S. § 1A-1, Rule 50(a) (1999), asserting
plaintiffs had presented insufficient evidence to submit as an
element of damages the amount of income plaintiffs might have
received from the deceased. The motion was denied and defendantsrested without presenting evidence. The jury returned verdicts
awarding plaintiffs total damages of $400,000.00.
In addition, the jury responded to the following special
interrogatory:
[w]hat portion of your award is for the
present value of the amount of money which the
deceased . . . could have expected to earn
during the remainder of the lives of her
parents, less the amount she would have spent
on herself or for other purposes which would
not have benefited (sic) her next of kin?
In its answer, the jury indicated it attributed the sums of
$22,800.00 as applicable to Rene and $29,300.00 to Riana, i.e., ten
percent of the amount Alford had estimated as the future
discretionary income of each.
Defendants moved for judgment notwithstanding the verdict
(JNOV), see G.S. § 1A-1, Rule 50(b), new trial, see N.C.G.S. § 1A-
1, Rule 59(a) (1999), and amended verdict, see G.S. § 1A-1, Rule
59(e). The trial court denied the motions and entered judgment in
favor of plaintiffs 12 August 1998.
Farm Bureau timely appealed, specifying eight assignments of
error addressed to two main issues: (1) that the trial court
allowed the jury to speculate on the amount of
income [plaintiffs], as parents, might have
received from the [deceased] as an element of
their damages on the grounds that, as a matter
of law, the plaintiffs presented insufficient
evidence during the trial to submit those
issues to the jury;
and, (2) that statements made to the jury by plaintiffs' counsel in
closing arguments were “highly inflammatory and prejudicial.” However, Farm Bureau does not address the second issue in its
appellate brief, and the three assignments of error relating
thereto are deemed abandoned. See N.C.R. App. P. 28(b)(5)
(“[a]ssignments of error not set out in the appellant's brief . .
. will be taken as abandoned”).
Farm Bureau's remaining five assignments of error are
consolidated into one argument. Essentially, Farm Bureau asserts
the trial court erroneously denied its directed verdict and JNOV
motions, thereby allowing the jury to award as an element of
damages the amount plaintiffs could have expected to receive from
the deceased had they lived. Farm Bureau contends the sums
attributed to this element of damages, $22,800.00 and $29,300.00,
should be “credited on the verdicts and [the] interest . . . re-
calculated.” We must agree.
A JNOV motion seeks entry of judgment in accordance with the
movant's earlier motion for directed verdict, notwithstanding the
contrary verdict returned by the jury. See G.S. § 1A-1, Rule
50(b); Northern Nat'l Life Ins. v. Miller Machine Co., 311 N.C. 62,
69, 316 S.E.2d 256, 261 (1984). A ruling on such motion is a
question of law, see Penley v. Penley, 314 N.C. 1, 9 n.1, 332
S.E.2d 51, 56 n.1 (1985), and presents for appellate review the
identical issue raised by a directed verdict motion, i.e., whether
the evidence considered in the light most favorable to the
non-movant was sufficient to take the case to the jury and to
support a verdict for the non-movant, see Henderson v. Traditional
Log Homes, 70 N.C.App. 303, 306, 319 S.E.2d 290, 292, disc. reviewdenied, 312 N.C. 622, 323 S.E.2d 923 (1984). If more than a
scintilla of evidence was presented in support of each element of
the non-movant's claim, the motion would properly be denied. Ace
Chemical Corp. v. DSI Transports, Inc., 115 N.C. App. 237, 242, 446
S.E.2d 100, 103 (1994).
Damages recoverable for wrongful death are prescribed by
statute, and include
[t]he present monetary value of the decedent
to the persons entitled to receive the damages
recovered, including but not limited to
compensation for the loss of the reasonably
expected;
a. Net income of the decedent . . . .
N.C.G.S. § 28A-18-2(b)(4) (1999). Farm Bureau does not maintain
plaintiffs presented insufficient evidence of the “present monetary
value of the . . . [n]et income of the decedent[s],” id., but
rather challenges the sufficiency of the evidence regarding the
income plaintiffs could have “reasonably expected” to receive from
the deceased, id.; see also State v. Smith, 90 N.C. App. 161, 169,
368 S.E.2d 33, 38-39 (1988) (parents may “only recover the amount
of [the] income that they reasonably might have received had [the
decedent] lived”), aff'd, 323 N.C. 703, 374 S.E.2d 866, cert.
denied, 490 U.S. 1100, 104 L. Ed. 2d 1007 (1989).
In response, plaintiffs point to certain appellate decisions
holding parents may recover for pecuniary injury, measured as loss
of net income, resulting from the death of a thirteen year old
child, Gurley v. Power Co., 172 N.C. 690, 90 S.E. 943 (1916), or
even a five month old infant, Russell v. Steamboat Co., 126 N.C.961, 36 S.E. 191 (1900). We note, however, that the cases cited by
plaintiffs were decided well before enactment of G.S. § 28A-18-2 in
its present form.
The original wrongful death statute, N.C.G.S. § 28-174, was
significantly amended in 1969, see Bowen v. Rental Co., 283 N.C.
395, 413-17, 196 S.E.2d 789, 801-04 (1973) (reciting history of
wrongful death statute), and was recodified effective 1975 as G.S.
§ 28A-18-2, see 1973 N.C. Sess. Laws ch. 1329, §§ 3, 5. Prior to
1969, the statute simply provided as follows:
“Damages recoverable for death by wrongful
act. -- The plaintiff in such action may
recover such damages as are a fair and just
compensation for the pecuniary injury
resulting from such death.”
Bowen, 283 N.C. at 414, 196 S.E.2d at 802 (quoting prior version of
statute). Damages were calculated as the “present value of the net
pecuniary worth of the deceased based on his life expectancy.” Id.
at 415, 196 S.E.2d at 803 (final emphasis added). Under this
standard, the award of $1,000.00 to the parents in Russell upon the
death of their five month old son was approved. Russell, 126 N.C.
at 961, 970, 36 S.E. at 191, 193.
The 1969 amendment, however,
shift[ed] the focus for the determination of
wrongful death damages from ascertaining the
loss of net income to the decedent's estate to
ascertaining all monetary losses to the
beneficiaries. . . . [N]ot only the present
worth of the decedent's net income . . . but
also the beneficiaries' life expectancies and
expectations of gain from the decedent must be
considered . . . .
Robert G. Byrd, Recent Developments in North Carolina Tort Law, 48N.C.L. Rev. 791, 805 (1970). As the current statute emphasizes
loss of the income “reasonably expected” to be received by
beneficiaries, G.S. § 28A-18-2(b)(4), earlier cases construing G.S.
§ 28-174, with its emphasis on loss to the decedent's estate, are
inapposite to the issue at hand.
We therefore turn to a consideration of plaintiffs' evidence
on the question of whether they “reasonably expected” to receive
any portion of the net income of Rene and Riana. See G.S. § 28A-
18-2(b)(4). Taken in the light most favorable to plaintiffs, see
Henderson, 70 N.C. App. at 306, 319 S.E.2d at 292, the evidence
tended to show that:
Arun, the father of Rene and Riana, was of
Indian descent;
Rene and Riana were partially raised in the
Indian culture;
Arun's family had a history of giving
financial assistance to members of the family;
Arun's brother provided financial help to his
and Arun's mother after their father died;
Arun assisted his brothers and sisters
financially and Rene and Riana were aware of
this; and,
“it's nothing out of the ordinary” for Indian
children to help their parents financially as
the parents age.
However, no testimony was presented tending to show the
deceased had contributed money to their parents on any occasion in
the past nor that they may have contemplated doing so in the
future. Moreover, even though the deceased may have been “aware”
of the pattern of financial assistance in Arun's family, it appearsthe subject was never discussed with their father, as evidenced by
the following testimony from Arun:
Q (Mr. Brooks, plaintiffs' attorney): Your
daughter - given that your daughters were
aware that your family helped support each
other, had they ever said anything to you
about the way your family helped each other
out?
A (Arun Bahl): Not specifically.
Q: And had they, uh, ever said anything to
you about the way you helped your brother in
London?
. . . .
A: No. They never had anything positive or
negative to say about it.
Few North Carolina cases speak directly to the issue. In
DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987), our
Supreme Court held that
lost income damages normally available under
N.C.G.S. § 28A-18-2(b)(4)a. cannot be
recovered in an action for the wrongful death
of a stillborn child,
id. at 432, 358 S.E.2d at 494, because the calculation of damages
would simply be too speculative, id. For older children and
adults, courts in this jurisdiction have recognized that “[i]t
would be difficult, if not impossible, to formulate a rule of
general application for the measurement of such damages,” Bowen,
283 N.C. at 419, 196 S.E.2d at 805, and that “[s]ome speculation .
. . must always be necessary,” Stutts v. Adair, 94 N.C. App. 227,
238, 380 S.E.2d 411, 418 (1989). Nonetheless, the decisions
reflect certain guidelines.
First, although “concrete manifestations of the child's intentto provide support . . . would obviously demonst
rate that the
parents had reasonable expectations to the child's income,” it is
not necessary “to demand actual support of the parents as the sole
ground for any recovery of lost income.” Id. However, some
evidence must be presented “to show that either of the victim's
parents reasonably expected to receive any . . . of his income,”
Smith, 90 N.C. App. at 169, 368 S.E.2d at 39, and “such
expectations could . . . be shown through . . . the verbally-
expressed intentions of the child,” Stutts, 94 N.C. App. at 238,
380 S.E.2d at 418.
Significantly, this Court in Stutts held that
the trial judge erred by submitting the issue
of damages for lost income because there was
no evidence before the judge that [the
deceased] had ever expressed an intent to
provide any of her income to her parents.
Id. at 239, 380 S.E.2d at 418-19.
In the case sub judice, it appears plaintiffs were allowed to
testify freely, yet presented no evidence Rene and Riana “had ever
expressed an intent to provide any of [their] income to [their]
parents.” Id. at 239, 380 S.E.2d at 419. Indeed, during the
directed verdict motion hearing, plaintiffs' counsel conceded his
clients had brought forward “no absolute direct evidence” on the
issue of what plaintiffs “could have expected to receive.”
In short, we conclude it was error for the trial judge to have
submitted to the jury as an element of damages the amount of income
plaintiffs could reasonably have expected from the deceased. See
id.; see also Knoles v. Salazar, 766 S.W.2d 613, 616 (Ark. 1989)(parents could not recover lost income damages upon death of
sixteen-year old child who had never “expressed a hope or desire,
or demonstrated an intention or disposition, to be of financial
assistance to [his] parents”). At best, plaintiffs' evidence
tended to show the deceased were non-communicative on the question
of providing aid for their family. In the words of Arun, they
“never had anything positive or negative to say about” the manner
in which his family accorded financial help to other family
members. Although it appears, taking the evidence in the light
most favorable to plaintiffs, see Henderson, 70 N.C. App. at 306,
319 S.E.2d at 292, the deceased were brought up in a family and
culture within which intra-family financial assistance may have
been favored, absolutely no evidence tended to show that Rene and
Riana, specifically, would grow up to follow this example.
We acknowledge our earlier dicta that “[s]ome speculation”
nearly always is required to establish the element of damages at
issue, Stutts, 94 N.C. App. at 238, 380 S.E.2d at 418; however,
[d]amages available under [G.S. § 28A-18-2]
are not automatic; they are what the
legislature will permit the beneficiaries to
recover provided those damages can be proved.
The law disfavors -- and in fact prohibits --
recovery for damages based on sheer
speculation. Damages must be proved to a
reasonable level of certainty, and may not be
based on pure conjecture.
DiDonato, 320 N.C. at 430-31, 358 S.E.2d at 493 (citation omitted).
A “reasonable level of certainty,” id. at 431, 358 S.E.2d at 493,
is not an impossible standard in regard to the element of damages
at issue herein, even though the case may involve a minor child. For example, testimony as to a child's monetary contributions to
the family from part-time employment, expressions of a future
intent to assist parents financially, see Stutts, 94 N.C. App. at
238, 380 S.E.2d at 418, or evidence that an older sibling had
provided monetary aid to her parents, might in the appropriate case
suffice to allow the issue to go to the jury. However, no such
testimony is reflected in the instant record.
In sum, the challenged amount of damages must necessarily have
been based upon “sheer speculation,” DiDonato, 320 N.C. at 430, 358
S.E.2d at 493, in that no evidence was presented tending to show
that plaintiffs could “reasonably [have] expected,” G.S. § 28A-18-
2(b)(4), to receive any portion of the deceased's future income.
Although submission of that element of damages was error, we
commend the trial court's foresight in submitting the special
interrogatory noted above which allows remand without the necessity
of ordering a new trial.
To conclude, that portion of the trial court's judgment
awarding plaintiffs $22,800.00 and $29,300.00 for income they might
reasonably have expected to receive from Rene and Riana,
respectively, is vacated and this case remanded for entry of a
corrected judgment and recalculation of the amount of interest on
the final damage award.
Vacated in part and remanded.
Judges LEWIS and MCGEE concur.
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