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Smith v. Whitaker

July 20, 1999


On certification to the Superior Court, Appellate Division, whose opinion is reported at 313 N.J. Super. 165 (1998).

The opinion of the court was delivered by: Stein, J.

This appeal concerns the availability of punitive damages under the Survivor's Act, N.J.S.A. 2A:15-3, and requires us to determine whether evidence of a plaintiff's conscious pain and suffering is necessary to sustain a cause of action under the Act. More precisely, because a plaintiff's pain, suffering and apprehension of impending death form the usual measure of damages under the Survivor's Act, the issue is whether a survival action will lie where, as here, the plaintiff's death appears to have been actually or nearly simultaneous with defendant's injury- causing conduct. We also must determine whether a claim for punitive damages may be asserted when no compensatory damages have been awarded for pain and suffering in the underlying survival action. In addition to those legal issues, we address factual disputes concerning whether defendant's conduct justified the imposition of punitive damages in this case and, if so, whether the amount of punitive damages awarded was excessive.


On January 4, 1990, Helen V. Robbins, a sixty-year-old widow, was killed when her 1979 Lincoln Town Car was hit by a 36,000-pound oil truck owned by defendant Coastal Oil Company of New York (Coastal) and driven by defendant Alan L. Whitaker, Jr. (Whitaker). At the time of the collision, Robbins was driving north on County Route 649 in Commercial Township, Cumberland County, and Whitaker was traveling south on County Road 633. The southbound lane of County Route 633 is governed by two yield signs at the point where it intersects County Route 649. Due to maladjusted brakes, Whitaker was unable to stop the truck as he approached the intersection even though he was "standing" on the brakes. The truck crossed the intersection, struck Robbins's automobile, and "overtopped" it. A state trooper responded to the scene within approximately five minutes of the accident. The trooper observed that Robbins did not appear to be breathing and that she appeared to be unconscious. Robbins was transported to a nearby hospital, where she was pronounced dead.

In June 1990, Harold E. Smith, *fn1 the nominal plaintiff and executor of Robbins's estate, filed an action against Whitaker and Coastal pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the Survivor's Act, N.J.S.A. 2A:15-3. Plaintiff claimed that the Coastal oil truck had been "improperly serviced and maintained, in that the brake systems, air hoses and braking mechanisms were faulty, defective and not in proper working order." By way of damages, plaintiff alleged direct pecuniary loss for support and maintenance, funeral expenses, pain and suffering and loss of enjoyment of life (hedonic damages). In addition, plaintiff sought punitive damages, alleging that defendants' negligent maintenance of the vehicle was "willful, wanton, and with knowledge of a high degree of probable harm to others."

The trial court bifurcated the trial of the compensatory and punitive damages claims. Before the jury was brought into the courtroom to begin the trial on plaintiff's compensatory damages claims, Coastal moved to bar plaintiff's presentation of evidence to support pain and suffering and hedonic damages. Coastal's attorney conceded that there was "no question" that Robbins had "died as a result of injuries sustained in the accident." In addition, Coastal conceded its liability for causing the accident. Coastal's attorney noted, however, that it "has candidly been admitted by [plaintiff's] counsel" that "there is not one single item of proof that exists or could be placed before this jury indicating that Mrs. Robbins suffered any conscious pain or endured any suffering at all," because, during discovery, no post-accident witness "indicated any consciousness at all by Mrs. Robbins."

Over plaintiff's objection, the trial court dismissed plaintiff's damage claim "with respect to the pain and suffering," finding that evidence of conscious pain and suffering was required to present to the jury the issue of compensatory damages under the Survivor's Act. The court noted that "there is nothing in the medical reports or in the observations of doctors, nurses, emergency personnel, or any of those people that would suggest that there was conscious pain and suffering." For the same reason, the court, over plaintiff's objection, dismissed plaintiff's damages claim for hedonic damages, because "hedonic damages would have to be based on the victim's own loss of enjoyment" and were therefore not available in this case. The court ruled that plaintiff's claim for punitive damages could go forward in the second phase of the trial.

In that procedural posture, the first phase of the jury trial commenced in May 1995, restricted to only the claims asserted in the wrongful death action. After all sides rested, the parties agreed to the court's suggestion that a different jury be empaneled to decide the issue of punitive damages. The jury returned a unanimous verdict finding defendants liable for $40,178 in actual pecuniary or financial damages. In addition, the parties consented to the addition of $3939, reflecting the net funeral bill and related expenses, for a total judgment of $44,117. On May 26, 1995, the court entered a judgment against defendants reflecting that the jury had "rendered a verdict in the amount of $40,178 pursuant to the Wrongful Death Act, N.J.S.A. 2A:15-3 et seq.," and that the court had "molded the verdict as to funeral and burial expenses pursuant to the Survivor's Act, N.J.S.A. 2A:31-1 to include the sum of $3,939.00."

After the Conclusion of the first trial, Coastal filed a motion to dismiss plaintiff's punitive damages claim and plaintiff cross-moved for a new trial of the wrongful death claim. In support of its motion, Coastal noted that punitive damages are not recoverable under the Wrongful Death Act, and that any award of punitive damages pursuant to the Survivor's Act would have to be supported by a valid underlying judgment of compensatory damages. Coastal argued that no compensatory award under the Survivor's Act was sustainable due to plaintiff's conceded inability to produce evidence that Robbins experienced conscious pain and suffering before dying.

The trial court denied both Coastal's motion to dismiss the punitive damages claim and plaintiff's new-trial motion. The court agreed with Coastal that there was "no question that in this case, as least insofar as the proofs are concerned, the decedent died instantly and there was no proof to the contrary." Nonetheless, the court ruled that plaintiff's claims for punitive damages could go forward under the authority of the Survivor's Act. In addition, at Coastal's request, the court clarified that the award for funeral expenses of $3939 "would properly be included in the wrongful death aspect of the case."

In July 1996 the punitive damages trial began before a new jury. Plaintiff and Coastal consented to the dismissal of the punitive damages claims against Whitaker. The evidence adduced in that proceeding showed that one month prior to the accident the State Police, after inspecting Whitaker's vehicle, had cited Coastal with numerous safety violations, including two "out-of-service" conditions that indicated the vehicle would not be considered safe to operate until those conditions were corrected. There was no evidence that the necessary repairs were made; rather, it appeared Coastal knowingly and deliberately operated the vehicle in its "out-of-service" condition for several weeks. Evidence also was presented that in the weeks leading up to the accident both Whitaker and Coastal were aware that the brakes were not working properly. An inspection at the time of the accident revealed that both rear brakes were so far out of adjustment as to render the vehicle unsafe to drive. Finally, the evidence suggested that Coastal provided no instruction or training for its drivers regarding proper brake safety or maintenance and that Coastal simply ignored regulatory record-keeping requirements regarding its vehicle maintenance.

At the Conclusion of that trial, the jury found Coastal liable for punitive damages in the amount of $1,250,000. In September 1995, the court entered an order denying Coastal's new-trial motion. In that order, at Coastal's request, the court amended the May 26, 1995, judgment, reallocating the award of funeral expenses to reflect that the "molded verdict including funeral and burial expenses were recovered pursuant to the Wrongful Death Act." Both parties then appealed.

The Appellate Division affirmed, concluding that plaintiff's punitive damages claims were sustainable even in the absence of an underlying award of compensatory damages. 313 N.J. Super. 172, 175-90 (1998). The Appellate Division also rejected Coastal's contentions that its conduct was not sufficiently egregious to justify an award of punitive damages and that the amount of the award was excessive. Id. at 190-98, 201-03. We granted Coastal's petition for certification. 156 N.J. 410 (1998).



At common law, no civil remedy was available for a personal injury resulting in death, either to the decedent's estate or the decedent's dependents. Kern v. Kogan, 93 N.J. Super. 459, 470 (Law Div. 1967). The common law's non-recognition of claims for wrongful death is traceable to "the pronouncement in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (1808), that `in a civil Court, the death of a human being could not be complained of as an injury and . . . the damage, as to the [deceased], must stop with the period of her existence.'" Giardina v. Bennett, 111 N.J. 412, 422 (1988) (alteration in original). *fn2 The "rigors of this harsh and technical rule were relaxed and ameliorated," Kern, supra, 93 N.J. Super. at 465, first in 1848 by the Wrongful Death Act, now codified as N.J.S.A. 2A:31-1 to -6, and later in 1855 by the Survivor's Act, now codified as N.J.S.A. 2A:15-3. Soden v. Trenton & Mercer County Traction Co., 101 N.J.L. 393, 394 (E. & A. 1925).

Although both types of actions arise from the identical occurrence, i.e., the death of the plaintiff, they serve different purposes and are designed to provide a remedy to different parties. Id. at 398-99. "The fundamental purpose of a wrongful death action is to compensate survivors for the pecuniary losses they suffer because of the tortious conduct of others." Alexander v. Whitman, 114 F.3d 1392, 1398 (3d Cir. 1997) (citing Alfone v. Sarno, 168 N.J. Super. 315 (App. Div. 1979)), cert. denied, __ U.S. __, 118 S. Ct. 367, 139 L. Ed. 2d 286 (1997).

"An award of damages in a wrongful death action "is not a matter of punishment for an errant defendant or of providing for decedent's next of kin to a greater extent than decedent himself would have been able, but is rather a replacement for that which decedent would likely have provided and no more." The amount of recovery is based upon the contributions, reduced to monetary terms, which the decedent might reasonably have been expected to make to his or her survivors." [Alexander, supra, 114 F.3d at 1398 (citation omitted).]

Consistent with its remedial purpose, damages under the Act are expressly limited to "the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased." N.J.S.A. 2A:31-5.

Further, courts interpreting the Act have consistently held that it permits recovery only of a survivor's calculable economic loss and that the Act does not support an award of punitive damages. See Meehan v. Central R.R. Co., 181 F. Supp. 594, 598 (S.D.N.Y. 1960) (dismissing claim for punitive damages under New Jersey Wrongful Death Act); Carey v. Lovett, 132 N.J. 44, 67 (1993) ("Damages for the wrongful death of an infant, like wrongful-death damages generally, are limited to economic matters."); Graf v. Taggert, 43 N.J. 303, 311 (1964) ("Our [Wrongful] Death Act was not intended to grant damages against a tortfeasor merely to punish him."); Turon v. J. & L. Constr. Co., 8 N.J. 543, 555-56 (1952) (noting remedial purpose of Wrongful Death Act and observing that from Act's inception damages recoverable thereunder intended to be limited to "pecuniary injuries" sustained by qualified beneficiaries); Goss v. American Cyanamid, Co., 278 N.J. Super. 227, 241 (App. Div. 1994) ("An award of damages in a wrongful death action is not intended to punish the tortfeasor, but only to replace that which the ...

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