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Green v. Bittner

decided.: December 30, 1980.

HARRY N. GREEN AND ANNE GREEN, INDIVIDUALLY; HARRY GREEN, AS ADMINISTRATOR AD PROSEQUENDUM AND GENERAL ADMINISTRATOR OF THE ESTATE OF DONNA GREEN, DECEASED, PLAINTIFFS-APPELLANTS
v.
STANLEY BITTNER, JR., INFANT, BY GUARDIAN AD LITEM TO BE APPOINTED, DEFENDANT-RESPONDENT



Wilentz, Sullivan, Pashman, Schreiber, Handler, Pollock The opinion of the Court was delivered by Wilentz, C.J.

Wilentz

[85 NJ Page 3] In the spring of her senior year at high school, Donna Green was killed in an automobile accident. She was a young woman of average intelligence and cheerful disposition; hard-working

and conscientious both at home and at school; level-headed and dependable. As her counsel aptly stated in summation, she was "everybody's daughter," not just meaning normal, but what everybody would want a daughter to be.

This action was brought for her wrongful death under N.J.S.A. 2A:31-1 et seq. Liability having been established at a separate trial, the jury in these proceedings were to "give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death . . . to the persons entitled to any intestate personal property of the decedent." N.J.S.A. 2A:31-5. The jury apparently found that Donna's survivors, her parents and brothers and sisters, had suffered no pecuniary loss for they awarded no damages whatsoever. In effect her life was adjudicated worthless to others, in a pecuniary sense.

We reverse. Under the circumstances presented to us, such a verdict is a miscarriage of justice. See Carrino v. Novotny, 78 N.J. 355 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588 (1977). We remand for a new trial in accordance with this opinion on the issue of damages. We hold that when parents sue for the wrongful death of their child, damages should not be limited to the well-known elements of pecuniary loss such as the loss of the value of the child's anticipated help with household chores, or the loss of anticipated direct financial contributions by the child after he or she becomes a wage earner. We hold that in addition, the jury should be allowed, under appropriate circumstances, to award damages for the parents' loss of their child's companionship as they grow older, when it may be most needed and valuable, as well as the advice and guidance that often accompanies it. As noted later, these other losses will be confined to their pecuniary value, excluding emotional loss. Given this expansion of permissible recovery, a verdict finding no damages for the death of a child should ordinarily be set aside by the trial court and a new trial ordered. To sustain such a verdict "would result in a return to the outmoded doctrine that a child is a liability -- not an asset."

Bohrman v. Pennsylvania Railroad Co., 23 N.J. Super. 399, 409 (App.Div.1952). Cf. McStay v. Pryzchocki, 10 N.J. Super. 455, 461 (App.Div.1950), aff'd, 7 N.J. 456 (1951).

We intend, by so holding, to give juries in wrongful death cases involving children the same ability to do justice to their parents, within the limits of existing legislation, as they now have under our cases when children lose a parent. By thus expanding the permissible scope of recovery, we also hope to reduce the pressure on juries to award damages for the parents' emotional suffering, unquestionably the most substantial element of damages in these cases, but legally impermissible.

Donna was one of six children in a warm and close family. She was a good student, did her share of household tasks, including babysitting and keeping the younger children busy so that her mother was free to do other things. She worked after school, as well as on weekends and in the summer, and had done so since she was 14. She helped provide for her own material needs and was saving for her forthcoming graduation festivities. She had definite plans to enter college and ultimately to embark on a business career. Although others described her as fun-loving, ebullient and popular, her mother, who concurred, nevertheless characterized her as level-headed. She was always there when she was needed; she always came through. She was a good-hearted, devoted and dependable daughter.

At the close of the evidence the trial court charged the jury that their verdict, in accordance with N.J.S.A. 2A:31-5, was to reflect only past, present and future pecuniary losses to the survivors, including any direct financial contributions that Donna might have made, but was not to compensate for grief and sentimental losses. In addition, the trial judge stated, "the term financial loss also includes the reasonable value of benefits which would have been received by a survivor in the nature of services or assistance or guidance if the decedent had continued to live." He qualified this statement by explaining that the jury should "consider the benefits which Donna bestowed upon the

survivors in the form of service or assistance; and . . . the guidance and training afforded by Donna to such survivor infants and the probabilities of whether and how long Donna would continue to have made such contribution to the welfare of other minor children who are now the survivors." As to the parents' losses, the judge stated: "You [the jury] should consider the services that Donna had performed about the household in the past, such as babysitting, cleaning and other types of home chores. In evaluating this claim, you may also consider the likelihood of any additional chores which . . . Donna would have undertaken had she grown older about the house." The jury was further instructed to deduct from the value thus determined the costs of feeding, clothing and educating Donna until her majority. This would have included the $4,000 her father was planning to spend for her college tuition.

After deliberating for approximately an hour and a half, the jury returned a verdict of no damages. Plaintiffs' motion for a new trial on damages was denied. The trial judge concluded that "it would be reasonable for this jury to come to [the] conclusion that the value of her services to babysit or to dry dishes was far exceeded by the cost to her family of feeding, clothing and educating her. The jury in this particular case followed literally the language of the statute and came to the conclusion that they reached." The judge noted that it is unusual for a jury to come in with a verdict of no recovery, and he expressed sympathy with the parents and their shock when they learned of no award for their daughter's death. He concluded, however, that a clear and convincing miscarriage of justice had not occurred. The Appellate Division affirmed this denial in an unreported opinion.

In fairness to the trial court, its instructions to the jury were substantially in accord with present case law. Furthermore, the charge was objected to in only one respect which the court remedied. Under those instructions, the trial judge was clearly correct when, in ruling on the motion for a new trial, ...


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