Green v. Bittner, 85 N.J. 1 (1980)

Wrongful Death and Recoverable Damages

In Green v. Bittner, the New Jersey Supreme Court expanded the scope of recoverable damages arising out of a parent’s wrongful death suit in the death of their child. The Court, reflecting upon a case wherein the jury had effectively decided that the value of a young woman’s life to her survivors was effectively zero, held 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.” Finding the jury award to be a miscarriage of justice, the Court held that juries should award damages for both the parent’s loss of companionship when they grow older as well as the advice and guidance that accompanies that companionship. Parents, the court believed, should have the same scope of recovery for the death of a child as that child would potentially have for the death of a parent.

Following in the footsteps of a Michigan Supreme Court case, Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960), the court embraced the view that “the era of child labor, and hence the fixation with earnings and services was over.” In its place, the Court held that the worth of a child’s life should instead be calculated “according to his function as part of an ongoing family unit.” As such, the court argued, parents, as with children, should be able to recover both for the value of the companionship a child may offer in their dotage as well as the loss of the guidance and advice that would accompany that companionship. In so expanding the recoverable damages, the Court argued that it was simply laying bare what was already the spirit of New Jersey wrongful death law, and simply making that spirit explicit. As such, the Court repeatedly noted that allowing for these types of recovery would not open the door for the recovery of emotional damages, but rather that the type of advice for which one could recover must be of a kind with those that “could be purchased from a business adviser, a therapist, or a trained counselor, for instance. Likewise, the court limited the recovery for companionship to services “substantially equivalent to those provided by the “companions” often hired today by the aged or infirm.”

Because these expanded damages had to be limited to their pecuniary, and not emotional, value, the Court also provided that the use of an expert to quantify these damages would be appropriate and of great aid to a jury. Looking back upon those cases where similar damages were allowed, the Court stated that juries should not be left to conjecture on such matters. While the Court did not mandate the use of such an expert to answer the question of the value of these damages, they did argue that it was “obviously desirable” for plaintiffs to provide a jury with expert guidance on the pecuniary value question.

Ultimately, the Court felt that the dramatic changes in longevity that have occurred since the establishment of the wrongful death cause of action required that parents be allowed to recover for companionship and advice damages. As the Court stated “the proportion of people age 65 and over in our population continues to grow… [the elderly] parents’ need is real, and when a middle-aged son or daughter is not there because of a wrongful death, a prospective pecuniary advantage of the aged or infirm parent has been lost.” Allowing for these damages in the death of a child, as well as expert testimony to guide the jury, the Court reasoned, would allow juries to deliver just compensation to grieving parents in concert with a judge’s charge rather than justice in such matters being dependent upon a jury’s willingness to strive for “some kind of justice despite the judge’s charge.”

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