It's a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases

statistical lives we stand in relations defined by justice and fairness." I& at 142829. The fairness dictate of maximizing society's welfare becomes overshadowed when we are dealing with persons with whom we have concrete, emotional contacts. Fried's other explanation is that the circumstance of facing certain, imminent death is a special kind of suffering, one that is appropriate for society to consider in its allocation of resources. Id. at 143&37. Media accounts of life and death struggles extend the impact of this phenomenon considerably. Where we lack the personal relation of love and friendship with the victim, the media nevertheless allows us, indeed commands us, to become vicarious mothers and fathers to suffering victims everywhere. They do not even have to be human. Consider the recent whale rescue off the coast of Barrow, Alaska. Thousands of whales are slaughtered each year for commercial purposes, generating the ire of only a small segment of environmentally minded people. Nevertheless, a Cable News Network call-in survey showed that 89 percent of the 7,500 respondents believed the whale rescue effort was worth the one million dollar cost. Stanfield, Nature's Ways Nat'i J. Inc., Nov. 12, 1988, at 2912. 4 When practicable, gender-neutral language is used throughout this article. Occasionally, however, it is necessary to use single-sex pronouns such as "his" and "her." Such pronouns are intended to be generic. 1990] NOTRE DAME LAW REVIEW raising the child.5 Since child-raising costs usually far outdistance pecuniary benefits bestowed by a child, the result is that children usually have a negative net worth.6 Under the pecuniary loss rule, followed in almost every state, life has no intrinsic value-no value per se. This seems to be a peculiar result in a society that refuses, at least for some purposes, to place any price tag on human life. Of course, an obvious distinction can be drawn between the cost of saving a life not yet lost and allowing tort recovery for one that is gone. Since no amount of money can bring the decedent back, she cannot be compensated in any meaningful way for the loss of her life. 7 However, while this may justify a difference in the monetary values society attaches to lives that can be saved and those already lost, it does not support the traditional legal notion that a lost life has no cognizable value apart from the lost economic benefits the decedent would have conferred upon her survivors. The primary thesis of this Article is that life does have an independent value. There is value to working at one's chosen occupation, to loving, to laughing, to walking on the beach, to watching the sun set. Part II defends the thesis that recovery for this value, popularly known as "hedonic damages,"' should be recognized9 as an element of damages in wrongful death act5 See generally 3 M. MINZER, J. NATES, C. KIMBALL, D. AXELROD & R. GOLDSTEIN, DAMAGES IN TORT AcTIONS § 24.00 (1988) [hereinafter MINZER]. Some jurisdictions have alleviated the harshness of the pecuniary loss rule in child death cases by extending the concept of pecuniary loss to include loss of companionship and society (see infra note 32) or by expressly recognizing non-economic damages for such losses. See generally id. at § 24.20. 6 "To limit damages for the death of a child to the monetary value of the services which the next of kin could reasonably have expected to receive during his minority less the reasonable expense of maintaining and educating him stamps almost all modern children as worthless in the eyes of the law. In fact, if the rule was literally followed, the average child would have a negative worth." Selders v. Armentrout, 190 Neb. 275, 279, 207 N.W.2d 686, 688-89 (1973). 7 For a discussion, of how money damages for the lost value of life relate to the compensatory function of tort law, see infra notes 34-41 and accompanying text. 8 "Hedonic damages" is the term commonly used to describe the damages which are the subject of this article. While that label is used occasionally herein, the author prefers the terms "value of lost life,' "lost life damages," or "damages for the intrinsic value of life," since they avoid the possible negative association of hedonic damages with "hedonism," the Epicurean philosophy that pleasure is the sole good in life. 9 This article is about the relatively new concept of awarding damages for the value of lost life where a tortfeasor's conduct has caused the death of the tort victim. This concept is distinct from the more firmly established practice of allowing damages for non-fatal injuries that infringe upon plaintiffs ability to participate in the amenities of life. The latter are usually referred to as damages for the "lost enjoyment of life." See genery MINZER, supra note 5, at §§ 8.00-8.39 (1989); Hermes, Loss of Enjoyment of [Vol. 66:57