Determining Value in Death Cases

Whether an accidental injury case which results in death has significant economic value in a law suit depends upon several factors. Obviously, our life is valuable to each of us and to our loved ones. New Jersey law does not value an extinguished life as our loved ones might think. Financial impact, not emotional loss, is considered. This article will introduce you to wrongful death and a related cause of action, survivorship.

Wrongful Death

Wrongful death is a type of personal injury action that permits recovery for pecuniary losses caused by the decedent’s absence. We look first to the decedent’s income to then determine what the economic impact of the loss is on the heirs. (For those decedents who do not work outside the home, one may recover for the value of the services the decedent used to perform around the house.) Under New Jersey’s wrongful death statute (N.J.S.A. 2A:31-1 et seq.) and the judicial decisions which interpret it, the decedent’s heirs cannot recover for loss of emotional pleasures, pain and suffering, and other types of non-pecuniary losses.

Concentrating solely on the value of the wrongful death claim, an attorney or adjuster should look at the decedent’s tax records from the last several years as well as the amount the decedent spent supporting dependents such as children and parents. An economist is often utilized. Potential plaintiffs are often shocked to hear that their 17-year-old son’s case is not very valuable because he had no income and no dependents. His family may only be able to recover for the value of his household services, perhaps to younger siblings or for services the decedent would have performed for his parents when they become elderly.

The more valuable wrongful death cases involve young parents earning a substantial income who are expected to devote a large portion of their earnings to support their growing children. An economist will be able to provide expert testimony that Jane Plaintiff, who died at age 30 survived by a two-year-old son, would have earned x over the next 20 years and spent y percentage of that on Junior’s shelter, food, clothing and education. The mathematical calculations provide the value assigned to the case.


In any case involving a death, plaintiff’s attorneys will consider if the circumstances yield other causes or action besides wrongful death. A key issue is how soon after the injury the decedent actually expired. If the decedent lived for some time to experience his pain and suffering before succumbing to his injuries, a recovery is possible via a “survivorship action” (N.J.S.A. 2A:15-3.) The estate seeks damages for the conscious pain and suffering of the decedent under this separate statute, since the wrongful death statute permits recovery only for pecuniary loss.

Obviously, the damages recoverable in a survivorship action depend upon the extent and nature of the suffering. If death was instantaneous, there is no value to the survivorship action.

Specifically, the estate may recover for: (1) lost earning capacity between the date of injury and date of death; (2) out of pocket expenses including reasonable funeral and burial expenses; (3) pain and suffering; and (4) disability or impairment/loss of enjoyment of life. Category (4) is argued in cases where the decedent was unconscious until his death, or lapsed into a coma, since the decedent may not consciously have suffered pain and therefore would be entitled to recover little or nothing under category (3).

One more subtle difference between these two statutes is who is entitled to recover. In a survivorship action the recovery goes to the decedent’s estate, meaning those named in the decedent’s will, or to the heirs at law if there is no will. In a wrongful death action, recovery goes only to those heirs who were dependent on the decedent during his lifetime.

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