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Lovely v. Rahway Hospital

Decided: July 18, 1988.

CLAUDETTE W. LOVELY, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF THOMAS K. WOODLEY, JR., AN INFANT, DECEASED, PLAINTIFFS,
v.
RAHWAY HOSPITAL, HUMBERTO CAMPOS, M.D., DR. TONZOLA, JOHN DOE, M.D. (FICTITIOUS NAME), AND DAVID DOE, (FICTITIOUS NAME), DEFENDANTS



Menza, J.s.c.

Menza

[227 NJSuper Page 615] This case involves the distribution of the proceeds of a

settlement for the wrongful death of a minor child.*fn1 The decedent, Thomas Woodley, Jr., the son of Claudette Lovely and Thomas Woodley, Sr., died on July 14, 1983, at the age of 14 years. Thomas was one of two children born of the marriage, the other being Shalona Woodley, one year younger than Thomas. Mrs. Lovely and Mr. Woodley, Sr., were separated in June 1975, and divorced in December 1976, when Thomas was six years of age. Thomas had always resided with his mother. He received support from his father by virtue of a court order. He was neither an exceptional child nor an unexceptional child, but he was a good son who contributed to the household chores and otherwise helped his mother.

According to Mrs. Lovely and the witnesses she presented, Thomas rarely saw his father and had a sparse relationship with him. According to Mr. Woodley, Sr., and his witnesses, Thomas saw his father somewhat often and did have a relationship with him, albeit not a very close one.

It is clear from the credible testimony that Thomas had only minimal contact with his father, and that his relationship with him was slight. In contrast, it is clear that his relationship with his mother was a warm and loving one.

Mrs. Lovely contends that she was dependent upon her son, at the time of his death, for his services, companionship and advice, and that she is, therefore, under the distribution statute, entitled to all, or at least the greater portion, of the proceeds of the settlement. She contends that it was she, not Mr. Woodley, who sustained a loss as a result of Thomas' death, and that this loss defines not only the measure of damages, but the basis and yardstick of her entitlement to those damages.

Mr. Woodley responds that dependency under the statute is defined in terms of actual support in the nature of financial contributions or valuable services, not in terms of pecuniary

value of companionship and advice. He contends, therefore, that Mrs. Lovely was not dependent upon Thomas at the time of his death.

Damages, in wrongful death actions, are for the pecuniary loss that the survivors suffer as a result of the death of the decedent, and includes the loss of expected financial contribution and the pecuniary loss of future services, companionship and advice. N.J.S.A. 2A:31-5; Green v. Bittner, 85 N.J. 1, (1980).

The amounts recovered are distributed in accordance with N.J.S.A. 2A:31-4, which provides:

The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions in which they are entitled to take the same. If any persons so entitled were dependent on the decedent at his death, they shall take the same as though they were sole persons so entitled, in such proportions, as shall be determined by the court without a jury, and as will result in a fair and equitable apportionment of the amount recovered, among them. . . . [Emphasis supplied]

It is not necessary for one to be totally dependent upon the decedent in order to take as a dependent under the statute. Partial dependency may suffice. In Bohrman v. Pennsylvania Railroad Co., 23 N.J. Super. 399 (App.Div.1952), the court, in interpreting ...


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