MARY C. DUTTON, ETC. VS. STEPHEN v. RANDO (L-6051-13, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1049-16T1
MARY C. DUTTON, as
Administratrix Ad Prosequendum
of the ESTATE OF PATRICK E.
DUTTON, APPROVED FOR PUBLICATION
February 26, 2019
Plaintiff-Respondent,
APPELLATE DIVISION
v.
STEPHEN V. RANDO,
Defendant-Appellant.
_____________________________
Argued December 4, 2018 – Decided February 26, 2019
Before Judges Sabatino, Haas and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-6051-13.
Robert M. Kaplan argued the cause for appellant
(Margolis Edelstein, attorneys; Robert M. Kaplan, of
counsel and on the brief).
Michael A. Gibson argued the cause for respondent
(D'Arcy Johnson Day, attorneys; Michael A. Gibson,
on the brief).
The opinion of the court was delivered by
MITTERHOFF, J.S.C. (temporarily assigned).
This appeal arises from a tragic highway collision in which defendant
Stephen Rando's sports utility vehicle ("SUV") fatally struck plaintiff's son,
Patrick Dutton, as he was riding his bicycle. Following a trial, the jury found
that defendant was sixty percent responsible for the accident while Patrick1 was
responsible for the remaining forty percent. The jury awarded plaintiff Mary
Dutton, representing her son's estate, $500,000 in wrongful death damages and
$108,000 in survivorship damages. The trial court entered judgment in the sum
of $364,800 in damages and additional interest, fees, and costs.
Defendant appeals from the judgment memorializing the verdict and from
the trial court's order denying his motion for a new trial. Among other things,
defendant contends that the jury's award of wrongful death damages is
unsupported by the evidence, particularly without any expert testimony to
substantiate the pecuniary value of the loss of Patrick's advice, guidance, and
companionship. We reject defendant's contention and reaffirm the long-
standing principle, as expressed in Lesniak v. County of Bergen, 117 N.J. 12,
32-33 (1989), that expert testimony is not required to establish the pecuniary
1
Because the decedent and multiple witnesses share the same last names, we
will refer to them by their first names. We intend no disrespect.
A-1049-16T1
2
value of such services in claims for wrongful death. For the reasons that follow,
we affirm.
I.
On October 2, 2013, plaintiff filed a civil action under the New Jersey
Survivor's Act, N.J.S.A. 2A:15-3, and the New Jersey Wrongful Death Act,
N.J.S.A. 2A:31-1 to -6, alleging that defendant's negligent operation of his
motor vehicle caused Patrick's death.
On August 15, 2016, defendant filed a pretrial motion in limine, arguing
that plaintiff's wrongful death claim was barred because plaintiff was not
planning to introduce any evidence substantiating the replacement cost of
Patrick's advice, guidance, and companionship. The trial court denied the
motion, finding it premature to decide whether plaintiff had presented a factual
basis for damages.
A jury trial took place between August 16 and August 24, 2016. We recite
the relevant facts from the testimony and evidence presented at trial.
Liability-Related Proofs
On the evening of February 26, 2012 defendant, an off-duty Atlantic City
police officer, was driving his SUV in the left lane on the eastbound side of
Black Horse Pike in Egg Harbor Township, with his wife, Jennifer Rando, sitting
A-1049-16T1
3
in the passenger seat. Black Horse Pike is a four-lane highway with two
eastbound and two westbound lines that are divided by a concrete, grassy
median. A two-foot space separates the median from the fog line of the left lane
on the eastbound side of the road. The posted speed limit is fifty miles per hour.
It was dark that night, ambient lighting was minimal, and the roads were damp
and filled with puddles from an earlier thunderstorm.
Indisputably, the Rando's SUV struck Patrick that night while the
decedent was on his bicycle at or near an intersection between Black Horse Pike
and Tower Avenue, where there is a forty-six-foot gap between the concrete
medians dividing the highway. The impact sent Patrick several feet in the air
until he came to rest on the westbound portion of Black Horse Pike where he
bled to death on the road. Patrick was nineteen years old at the time of the
accident. At trial, the nature of the collision and how it occurred was heavily
disputed.
When Officer Kevin Devlin, of the Egg Harbor Township Police
Department, responded to investigate the collision that night, he observed
Patrick laying on the westbound side of the road with the remains of the bicycle
and other debris scattered throughout the left lane of the eastbound road. Officer
Devlin concluded that defendant's SUV hit the bicycle while Patrick was
A-1049-16T1
4
traveling in a westerly direction in the left-hand travel lane of Black Horse Pike
eastbound. In Devlin's view, the evidence did not support that the SUV had
swerved prior to the collision. Based on the scuff marks on the road, Devlin
determined the impact projected Patrick in a northeasterly direction until his
body came to rest on the westbound side of the road.
Plaintiff’s expert, Dr. Steven Batterman, testified that the physical
evidence did not support Officer Devlin's conclusion that a head-on collision
occurred in the left lane of the eastbound road. Instead, he believed that the
vehicles were perpendicular at the point of impact and that the collision occurred
in the center of the intersection in the gap between the concrete medians.
Batterman noted the projectile direction of debris from the collision was
northeast and that the damage to the SUV was primarily relegated to the front
left wheel, headlights, and fender. The lack of damage to the windshield of the
SUV, in Batterman's opinion, also weighed against the possibility that the front
of the vehicle hit Patrick head-on. Based on the braking distance of the SUV
and the amount of damage caused, Batterman believed defendant was traveling
between sixty and sixty-five miles per hour prior to impact in an area where the
speed limit was fifty. Batterman concluded that defendant was inattentive,
A-1049-16T1
5
failed to observe Patrick, and that "for reasons unknown" the SUV swerved to
the left, hitting both Patrick and the bicycle.
William Meyer, the defense's accident reconstruction expert, disagreed
with Batterman about the point of impact, believing, as Officer Devlin did, that
the collision occurred in the left lane of Black Horse Pike eastbound. Because
the damage to the bicycle was localized to the front section, Meyer disagreed
with Batterman that the vehicles were perpendicular at the point of impact and
concluded that Patrick had entered defendant's lane, traveling at a southwest
angle. In Meyer’s opinion, defendant did not have enough time to observe and
react to Patrick to avoid the collision.
Defendant testified that he never saw Patrick before he heard and felt the
impact of the collision. Jennifer Rando testified that she did see Patrick but only
in the moment immediately prior to impact when she had turned to speak to her
husband. She attempted to yell to alert him, but it was too late to avoid impact.
Apart from the Randos, the only testifying witness who directly observed
the collision was Gary Maisano, who stated that he was driving on the eastbound
side of Black Horse Pike and drove past Patrick as the latter stood on the median,
"straddling" his bicycle with his feet on the ground, stationary. Maisano
testified that Patrick was perpendicular to Maisano's vehicle, facing south.
A-1049-16T1
6
Immediately after passing Patrick, from his left side view mirror, Maisano
observed Patrick's silhouette cross in front of a car just before a loud impact.
April Roadside, with her passenger, Tamara Baum, was driving in the
right lane of the eastbound side of the road behind defendant's SUV prior to the
crash. Roadside and Baum both testified that the SUV suddenly swerved left
and, immediately afterwards, sparks and debris flew towards them, forcing
Roadside to maneuver their car to avoid being hit.
Karen Carboni saw Patrick traveling on Black Horse Pike prior to the
accident. Carboni testified that she was driving in the right lane of the eastbound
side of the highway when part of Patrick's bicycle came into her lane of travel,
causing her to quickly veer left to avoid striking him. Carboni did not see
Patrick until she was a car length and a half behind him. Patrick had been
dressed in dark clothing and had no visible reflectors on his bicycle, leading
Carboni to comment to her daughter seated next to her that Patrick's manner of
travel was "very dangerous." Carboni did not see or hear the collision.
Damages-Related Proofs
Plaintiff presented testimony regarding her relationship with Patrick.
Patrick's aunt Irene testified that Patrick had been living with her in the year
prior to his death, while plaintiff was living in a homeless shelter. Patrick's
A-1049-16T1
7
older brother Brandon testified that Patrick and he had been putting aside money
every week to buy plaintiff a house or apartment and that Patrick had been
saving between twenty and fifty dollars per paycheck to that end. Irene mostly
corroborated Brandon's account, though she recalled that Patrick had been
saving between fifty and seventy-five dollars per week and that he had intended
to buy a car before purchasing a family home. Irene also recounted that Patrick
was outgoing, helpful, and a hard worker with a good reputation at his two jobs.
Plaintiff testified that the companionship Patrick provided her was
"definitely one of the important things" in her life. Plaintiff and Patrick had
been speaking over the phone on a nightly basis and saw each other once or
twice per week to have meals together, go to the park, or walk the boardwalk,
among other activities. Patrick had comforted plaintiff with his words, sense of
humor, and displays of affection. Plaintiff attested that these interactions with
her late son had given her "a whole different outlook on life" and that Patrick
"lifted [her] up even when the clouds were real grey."
Plaintiff also testified that she probably would not have accepted money
from either of her sons, because, as their mother, she felt it her duty to help them
rather than accept help from them. Though her family offered for plaintiff to
A-1049-16T1
8
stay with them, plaintiff refused, because, in her words, she was "stubborn" and
"didn't want to burden" them.
At the close of plaintiff's case-in-chief, defendant moved for involuntary
dismissal of the wrongful death claim, renewing the argument that plaintiff had
not provided any evidence of the pecuniary value of the services Patrick
provided plaintiff and that no reasonable juror could find that plaintiff had
established proof of damages. The court denied the motion.
The Jury Charge, Verdict, and New Trial Motion
In the final charge to the jury before deliberation, the trial judge read the
model jury charge on wrongful death without objection from either party.
Among other things, the model charge directs juries: not to consider either
emotional distress plaintiff may have suffered as a result of the decedent's death
or emotional satisfaction plaintiff may have derived from the decedent's
companionship; to limit the damages to plaintiff's financial loss from the death,
including the value of companionship services that Patrick would have provided
to plaintiff for the remaining years of her life, had he survived; to estimate the
reasonable value of the companionship services provided by determining the
value of substantially similar services provided "by paid companions or
homemakers who are often hired by the aged or infirm or . . . by nurses or
A-1049-16T1
9
practical nurses" and to consider that "future losses cannot go beyond the point
when it is expected that [plaintiff] will survive." See Model Jury Charge (Civil),
8.43, "Wrongful Death" (March 2010). In accordance with the model charge,
the court advised the jury that plaintiff's anticipated life expectancy was 29.4
years.
On the second day of deliberations, the jury asked the court for an
"explanation/clarification of question number 7," which was the question on the
verdict sheet pertaining to wrongful death damages. With no party objecting,
the trial judge once again issued the wrongful death model charge.
On the same afternoon, the jury reached its verdict, finding that defendant
and Patrick were both negligent and that each proximately caused the collision,
with sixty percent of the liability residing with defendant and forty percent with
Patrick. The jury awarded plaintiff a gross sum of $108,000 for Patrick's
conscious pain and suffering on the Survivor's Act claim and a gross sum of
$500,000 for the pecuniary loss of Patrick's advice, counsel, and companionship
on the Wrongful Death Act claim. The court molded the awards to the sum of
$364,800 to reflect decedent's comparative fault.
Defendant moved for a new trial, which the trial court denied on
September 30, 2016. On the same day, the court entered an order for judgment,
A-1049-16T1
10
finding defendant liable to plaintiff in the molded sum of $364,800 in damages.
Having found that the jury verdict was more than 120% of the claimant's offer
of judgment, pursuant to Rule 4:58-2, the court awarded an additional
$31,207.89 in accrued interest, $80,162.50 in attorney fees, and $20,331.06 in
litigation costs, resulting in a total award and final judgment of $496,501.45.
This appeal followed. On appeal, defendant raises the following points
for our review:
I. The evidence clearly established that the
defendant was not at fault for the happening of
plaintiff's decedent's accident – much less a
finding that defendant's fault was greater than
that of plaintiff's decedent – therefore the only
explanation for the jury's verdict is sympathy,
bias, pity and passion and the trial court erred in
not vacating the jury's liability verdict.
II. As plaintiff failed to present her wrongful death
claim in a manner which would permit the jury to
fashion an award for the pecuniary value of
plaintiff's loss of advice, counsel and
companionship without speculating, the trial
court erred in permitting the issue to go to the
jury and erred in failing to vacate the jury's
ultimate award of damages.
Plaintiff has not cross-appealed on any issues.
A-1049-16T1
11
II.
A.
Turning to defendant's first point, we find that the trial court did not err in
denying defendant's motion for a new trial on liability. "The standard of review
on appeal from decisions on motions for a new trial is the same as that governing
the trial judge—whether there was a miscarriage of justice under the law." Risko
v. Thompson Muller Auto. Grp., 206 N.J. 506, 522 (2011); see also R. 4:49-1(a)
("The trial judge shall grant the motion [for a new trial] if, having due regard to
the opportunity of the jury to pass upon the credibility of the witnesses, it clearly
and convincingly appears that there was a miscarriage of justice under the
law.").
In this regard, "[a] jury verdict is entitled to considerable deference[.]"
Risko, 206 N.J. at 521. "On a motion for a new trial, all evidence supporting
the verdict must be accepted as true, and all reasonable inferences must be drawn
in favor of upholding the verdict." Boryszewski ex rel. Boryszewski v. Burke,
380 N.J. Super. 361, 391 (App. Div. 2005). "[A] trial court should not interfere
with a jury verdict unless the verdict is clearly against the weight o f the
evidence." Caldwell v. Haynes, 136 N.J. 422, 432 (1994). To overturn a jury
verdict, "[t]he verdict must shock the judicial conscience." Ibid.
A-1049-16T1
12
Applying this deferential standard of review, we find that the jury's
liability verdict neither shocks the judicial conscience nor amounts to a
miscarriage of justice. In denying the motion for a new trial, the trial court held
that the jury's verdict regarding defendant's apportioned liability was "not
clearly and convincingly contrary to the weight of the evidence." The court
reasoned:
Witnesses testified as to the decedent's visibility and
location, as well Defendant's actions, such that the
jury's finding of Defendant's 60% liability for the
accident would not be clearly and convincingly
contrary to the weight of the evidence. Specifically,
other vehicle operators and Defendant's passenger
visibly saw decedent prior to the collision, one witness
testified that the decedent was on the median prior to
the collision and not in Defendant's lane of traffic, and
a further witness testified to seeing Defendant's vehicle
swerve toward the median prior to the collision. In light
of such facts, it would not be unreasonable for a
factfinder to find liability as the jury in this case did,
and thus this argument fails.
Having reviewed the record, we conclude that the trial judge's findings
and reasoning are amply supported by the record. We therefore affirm the trial
court's order denying defendant's motion for a new trial on liability.
B.
We next address defendant's argument that the jury's award of wrongful
death damages is unsupported by any evidence that would permit the jury to
A-1049-16T1
13
fashion an award for the pecuniary value of plaintiff's loss of advice, counsel
and companionship. Specifically, defendant contends the trial court erred in
denying his motion for an involuntary dismissal of plaintiff's wrongful death
claim at the close of plaintiff's case-in-chief and in refusing to vacate the jury's
verdict awarding a gross sum of $500,000 in wrongful death damages.
Defendant argues that either expert or other specific testimony was required as
a matter of law to substantiate the economic value of Patrick's lost
companionship. In the absence of this evidence, defendant claims, the verdict
could only have been premised on "pure speculation coupled with sympathy,
passion and prejudice."
In addressing defendant's arguments, we first consider the background of
New Jersey's Wrongful Death Act. When a defendant is found liable under the
Wrongful Death Act for negligently causing a person's death, the jury may award
"such damages as they shall deem fair and just with reference to the pecuniary
injuries resulting from such death, together with the hospital, medical and
funeral expenses incurred for the deceased, to the persons entitled to any
intestate personal property of the decedent." N.J.S.A. 2A:31-5.
As no civil remedy for wrongful death existed under the common law, see
generally Jacob A. Stein, Stein on Personal Injury Damages, § 3.1 (3d. ed. 2018)
A-1049-16T1
14
(discussing history of common law rule and origin of wrongful death statutes),
the nation's wrongful death statutes derived from an 1846 act of the British
Parliament known as "Lord Campbell's Act," pursuant to which "[l]oss meant
only money loss, and money loss from the death of a child meant only his lost
wages. All else was imaginary. The only reality was the King's shilling."
Wycko v. Gnodtke, 105 N.W.2d 118, 121 (Mich. 1960). American wrongful
death statutes borrowed this economic component from Lord Campbell's Act in
what became known as the "pecuniary loss rule." Stein, § 3.6; see also Beim v.
Hulfish, 216 N.J. 484, 499 (2014) ("[In 1848], the New Jersey Legislature
enacted its first wrongful death statute, substantially modeled after Lord
Campbell's Act.").
The common law did provide a cause of action for "loss of consortium,"
Ekalo v. Constructive Serv. Corp. of America, 46 N.J. 82, 85 (1965), a term
"encompassing the services of the wife, the financial support of the husband,
and the variety of intangible relations which exist between spouses living
together in marriage." Hopson v. St. Mary's Hosp., 408 A.2d 260, 261 (Conn.
1979). In recent years, several states have expanded the definition of
"consortium" to apply to other familial or intimate relationships in the wrongful
death context. See, e.g., Hoesing v. Sears, Roebuck & Co., 484 F. Supp. 478,
A-1049-16T1
15
480 (D. Neb. 1980) ("[T]he parents, children, and siblings of a deceased person
may bring a wrongful death action to recover for the loss of consortium due to
their relative's death."); Williams v. Hook, 804 P.2d 1131, 1138 (Okla. 1990)
(recognizing a child's right to bring an action for the loss of "parental
consortium"); Hancock v. Chattanooga-Hamilton Cty. Hosp. Auth., 54 S.W.3d
234, 236 (Tenn. 2001) (allowing the parent of a decedent to recover for loss of
"filial consortium").
Originally, in New Jersey, the pecuniary loss rule prevented recovery in
wrongful death actions for what the Supreme Court called "the non-pecuniary
loss of the society and companionship" of the deceased, which the Court
analogized to loss of consortium. Russell v. Salem Transp. Co., 61 N.J. 502,
508 (1972). In Green v. Bittner, however, the Court "isolate[d] from the
ordinary 'loss of society and companionship' those elements having a distinctly
pecuniary value." 85 N.J. 1, 18 (1980). After Green, plaintiffs could recover
the lost value of the decedent's "companionship and advice . . . limited strictly
to [the] pecuniary element" of such services, as determined by "what the
marketplace would pay a stranger with similar qualifications for performing
such services." Id. at 12. Nevertheless, it affirmed that our wrongful death
statute is "too clear to allow compensation, directly or indirectly, for emotional
A-1049-16T1
16
loss." Ibid.; see also Beim, 216 N.J. at 502 ("Even when wrongful death
damages are premised upon non-monetary losses, they are measured by the
monetary value of the contributions that the decedent would have made to his
survivors during his or her life had that life not been cut short.").
Based on our research, it appears fourteen of our sister states similarly
strictly apply the pecuniary loss rule to preclude recovery for emotional damages
in wrongful death actions, but allow recovery for the pecuniary component of
A-1049-16T1
17
lost advice, counsel, or companionship of the decedent through either case law
or statute.2 3
2
See Mass. Gen. Laws Ann. ch. 229, § 2; N.C. Gen. Stat. § 28A-18-2(b);
Heimlicher v. Steele, 615 F. Supp. 2d 884, 924 (N.D. Iowa 2009); Keller v.
Feasterville Family Health Care Ctr., 557 F. Supp. 2d 671, 687 (E.D. Pa. 2008);
Canavin v. Pac. Sw. Airlines, 196 Cal. Rptr. 82, 86 (Cal. App. 1983); Campos
v. Coleman, 123 A.3d 854, 868 (Conn. 2015); Carroll Fulmer Logistics Corp. v.
Hines, 710 S.E.2d 888, 890 (Ga. Ct. App. 2011); Youngquist v. W. Nat'l Mut.
Ins. Co., 716 N.W.2d 383, 386 (Minn. Ct. App. 2006); Reiser v. Coburn, 587
N.W.2d 336, 340 (Neb. 1998); Gonzalez v. N.Y.C. Hous. Auth., 572 N.E.2d
598, 600-01 (N.Y. 1991); Flagtwet v. Smith, 367 N.W.2d 188, 190-91 (S.D.
1985); Thurmon v. Sellers, 62 S.W.3d 145, 161 (Tenn. Ct. App. 2001); Bowers
v. Fibreboard Corp., 832 P.2d 523, 526 (Wash. Ct. App. 1992); Knowles v.
Corkill, 51 P.3d 859, 863-65 (Wyo. 2002). Unlike most states, Connecticut and
Georgia require wrongful death damages to be evaluated from the point of view
of the decedent, not of the plaintiff. See Procaccini v. Lawrence & Mem'l Hosp.,
Inc., 168 A.3d 538, 563 (Conn. App. Ct. 2017) (describing factors to consider
"[r]egarding compensation for the destruction of a decedent's capacity to carry
on and enjoy life's activities"); Carroll, 710 S.E.2d at 890 ("Since these damages
are measured from the decedent's point of view, there is no recovery for
damages, including mental or emotional suffering, experienced by the
decedent's survivors as a result of the wrongful death.").
3
These fifteen states, including New Jersey, that restrict recovery for non-
pecuniary loss in wrongful death actions represent the minority legislative
approach. Thirty-four states have expanded recovery in wrongful death cases
beyond the pecuniary loss rule to allow recovery for non-pecuniary injury,
including in many states for emotional loss, mental anguish, grief, or sorrow of
the plaintiff. See Alaska Stat. § 09.17.010(a); Ark. Code Ann. § 16-62-102(f);
Colo. Rev. Stat. §§ 13-21-102.5(2)(b), 13-21-203(1)(a); Del. Code Ann. tit. 10,
§ 3724(d)(5); Fla. Stat. § 768.21(4); Idaho Code §§ 6-1601(5), 1603(1); 740 Ill.
Comp. Stat. Ann. 180/2(a); Kan. Stat. Ann. §§ 60-1903, 60-1904(a); Me. Stat.
tit. 18-A, § 2-804; Md. Code Ann., Cts & Jud. Proc. § 3-904(d); Mich. Comp.
Laws §§ 600.1483, 600.2922(6); Nev. Rev. Stat. Ann. § 41.085(4); N.H. Rev.
A-1049-16T1
18
Under New Jersey law, in cases involving the death of a child, plaintiffs
may recover for "the pecuniary value of the child's companionship, including
his or her advice and guidance, as the parents grow older." Carey v. Lovett, 132
N.J. 44, 67 (1993). With respect to companionship, "the jury's focus is on the
existence of [the parent-child] relationship and the value of the advice, guidance
and counsel that inhere in it." Johnson v. Dobrosky, 187 N.J. 594, 610 (2006).
"Given a normal parent-child relationship, a jury could very well find it is
sufficiently probable, had the child lived, that at some point he or she would
Stat. Ann. § 556.12; Ohio Rev. Code Ann. § 2125.02(B)(5); Okla. Stat. tit. 12,
§ 1053(B); Or. Rev. Stat. Ann. § 30.020(d); Va. Code Ann. § 8.01-52(1); W.
Va. Code § 55-7-6(c); Wis. Stat. Ann. § 895.04(4); Gast v. Kwak, 396 F. Supp.
2d 1150, 1154 (D. Haw. 2005); Walsh v. Advanced Cardiac Specialists
Chartered, 273 P.3d 645, 648 (Ariz. 2012); Ed Wiersma Trucking Co. v. Pfaff,
643 N.E.2d 909, 911 (Ind. Ct. App. 1994); Giuliani v. Guiler, 951 S.W.2d 318,
320 (Ky. 1997); Bryant v. Solomon, 712 So. 2d 145, 147 (La. 1998); Coho Res.,
Inc. v. McCarthy, 829 So. 2d 1, 24 (Miss. 2002); Mansfield v. Horner, 443
S.W.3d 627, 641-42 (Mo. Ct. App. 2014); Hern v. Safeco Ins. Co., 125 P.3d
597, 608-09 (Mont. 2005); Romero v. Byers, 872 P.2d 840, 844 (N.M. 1994);
Hopkins v. McBane, 427 N.W.2d 85, 94 (N.D. 1988); Sindelar v. Leguia, 750
A.2d 967, 971-72 (R.I. 2000); Knoke v. S.C. Dep't of Park, Recreation &
Tourism, 478 S.E.2d 256, 258-59 (S.C. 2015); Sanchez v. Schindler, 651 S.W.2d
249, 251 (Tex. 1983); Jones v. Carvell, 641 P.2d 105, 107 (Utah 1982); Hartnett
v. Union Mut. Fire Ins. Co., 569 A.2d 486, 488 (Vt. 1989). Alabama is the only
state in which plaintiffs may not recover compensatory damages in wrongful
death cases, though they may recover discretionary punitive damages linked to
the wrongfulness of the tortfeasor's conduct, and not to the plaintiff's or
decedent's losses. See Roe v. Michelin N. Am., Inc., 637 F. Supp. 2d 995, 999
(M.D. Ala. 2009) ("Alabama is the only State that allows only discretionary
punitive damages in wrongful-death cases.").
A-1049-16T1
19
have rendered . . . companionship services . . . and advice, guidance and
counsel[.]" Green, 85 N.J. at 16.
Once the parent-child relationship is established, juries should employ "an
objective standard for calculating the value of advice, guidance and counsel . . .
confined to what 'the marketplace would pay' for lost household services or the
services of a business adviser, therapist or trained counselor." Johnson, 187 N.J.
at 610 (quoting Green, 85 N.J. at 12). "[W]hile pecuniary losses under N.J.S.A.
2A:31-5 cannot be premised on speculation, an exact calculation of the
plaintiff's damages may not be feasible in every case." Beim, 216 N.J. at 504.
Even though the assessment of pecuniary losses from a decedent's death
may be "burdened with the element of speculation," the Supreme Court has
instructed that determination of such questions are "not so beyond the common
knowledge and common experience of jurors as to warrant . . . making expert
testimony mandatory in such cases." Lesniak, 117 N.J. at 32-33; see also Brown
v. Kennedy Mem'l Hosp., 312 N.J. Super. 579, 593-94 (App. Div. 1998)
("Expert testimony is not necessary to place a value on prospective services, but
it is helpful to avoid leaving the jury to conjecture on those values." (emphasis
added)).
A-1049-16T1
20
Likewise, in the fourteen states with wrongful death statutes similar to the
New Jersey Wrongful Death Act, courts have upheld wrongful death damages
in the absence of expert testimony. See, e.g., Mendoza v. City of W. Convina,
141 Cal. Rptr. 3d 553, 569 (Cal. Ct. App. 2012) (setting forth basis for sustaining
wrongful death damages verdict without referencing expert testimony); Consol.
Freightways Corp. v. Futrell, 410 S.E.2d 751, 753 (Ga. Ct. App. 1991)
(upholding verdict for the loss of the "intangible aspects of the decedents' lives"
based on "scant" testimony from family members, but not from experts); Evans
v. FirstFleet, Inc., 345 S.W.3d 297, 304-07 (Mo. Ct. App. 2011) (sustaining
wrongful death damages based on lay testimony without reciting any expert
testimony); Walsh v. Morris, 511 N.Y.S.2d 428, 430 (N.Y. App. Div. 1987)
(upholding $50,000 wrongful death award despite the fact that the decedent had
no "earning capacity" and "there was no expert testimony as to the value of her
services as a homemaker"); Williams v. Monarch Transp., Inc., 470 N.W.2d 751,
756-57 (Neb. 1991) (upholding damages verdict based on "the history of an
extraordinary young woman's very remarkable relationship with her parents");
Knowles v. State, 49 S.W.3d 330, 340-41 (Tenn. Ct. App. 2001) (upholding
verdict without mentioning expert testimony where decedent's children had
testified about their relationship with their father). Indeed, our research has not
A-1049-16T1
21
revealed any case in these jurisdictions that has required expert testimony to
establish the pecuniary value of the decedent's advice, guidance, and counsel.
With this background in mind, we turn to defendant's contention that the
trial court erred in denying his motion for involuntary dismissal of plaintiff's
wrongful death claim. We apply the same standard as the trial court in assessing
whether a motion for involuntary dismissal should have been granted. Hitesman
v. Bridgeway, Inc., 218 N.J. 8, 26 (2014). Under that standard, "[a] motion for
involuntary dismissal only should be granted where no rational juror could
conclude that the plaintiff marshaled sufficient evidence to satisfy each prima
facie element of a cause of action." Godfrey v. Princeton Theological Seminary,
196 N.J. 178, 197 (2008); see also R. 4:37-2(b) (providing that a defendant "may
move for a dismissal of the action or of any claim on the ground that upon the
facts and upon the law the plaintiff has shown no right to relief[,]" but that "such
motion shall be denied if the evidence, together with the legitimate infe rences
therefrom, could sustain a judgment in plaintiff's favor").
In addressing defendant's motion for involuntary dismissal of the
wrongful death claim, the trial judge commented, "I do think that there are
problems that the plaintiff has in proving the quantum of damages for services
and things of that nature because nothing was presented in those areas[,]" but
A-1049-16T1
22
permitted the issue to go to the jury because the "concept" was "within the ken
of the jury." Although the trial court mischaracterized the record in asserting
that plaintiff had offered "nothing" to support wrongful death damages, we agree
that plaintiff's wrongful death damages claim was properly submitted to the jury.
Plaintiff introduced testimony showing that Patrick's death caused the
"most common class of pecuniary injury[,] . . . the loss of future financial
contributions[,]" to plaintiff. Johnson, 187 N.J. at 607. Specifically, Patrick
had been working two jobs prior to his death and was saving money with the
specific intention to purchase an apartment or house for his mother and possibly
other family members. Notwithstanding plaintiff's comments that she would
probably not have accepted any financial contributions from Patrick, the jury
could still have reasonably inferred that Patrick would have made such
contributions and that plaintiff was likely to have accepted them.
There was also ample testimony regarding the companionship services
Patrick offered to plaintiff. Brandon, Irene, and plaintiff herself testified that
plaintiff's relationship with Patrick was "definitely one of the important things"
in her life. Patrick comforted plaintiff with his sense of humor and his displays
of affection, and gave plaintiff "a whole different outlook on life" with his
words. The two spoke on a nightly basis and saw each other weekly. Brandon
A-1049-16T1
23
testified that plaintiff was more likely to seek advice from Patrick than himself,
because Patrick was better at making plaintiff feel better.
Viewing, as we must, the evidence in the light most favorable to plaintiff,
we find there was sufficient credible evidence upon which a rational juror could
conclude that plaintiff had established pecuniary injury. We therefore affirm
the trial court's denial of defendant's motion for the involuntary dismissal of
plaintiff's wrongful death claim.
Similarly, we reject defendant's argument that a new trial on damages is
necessary because allegedly the verdict could only have been based on "pure
speculation coupled with sympathy, passion and prejudice." "A jury verdict is
entitled to considerable deference[.]" Risko, 206 N.J. at 521. "A trial court
should not disturb the amount of a verdict unless it constitutes a manifest
injustice that shocks the judicial conscience." Carey, 132 N.J. at 66. "The
appellate role is even more restricted . . . . [and] an appellate court should show
appropriate deference to the trial court's 'feel of the case.'" Ibid. (quoting Baxter
v. Fairmont Food Co., 74 N.J. 588, 600 (1977)).
Defendant contends that the present case is analogous to Brown, where
the trial court ordered a new trial on damages and found that the jury's $825,000
wrongful death damages award was a "runaway verdict," that could only have
A-1049-16T1
24
been the product of "sympathy, prejudice and passion." 312 N.J. Super. at 592.
Defendant argues that as in the instant case, the plaintiff in Brown offered
testimony that the decedent, his forty-nine-year-old daughter, had offered him
companionship services in addition to housekeeping and clerical services, but
provided no expert testimony or other specific testimony allowing the jury to
quantify the monetary value of such services. See id. at 584, 595.
We find, however, that Brown is distinguishable from the instant case. In
Brown, the plaintiff also testified that he had been paying for the decedent's
living expenses prior to her death, leaving the jury "futilely without guidance"
regarding the ultimate pecuniary value of the services the decedent had been
providing or the "counterbalancing value of the decedent's living expenses." Id.
at 594. Moreover, the plaintiff in Brown was eighty-six years old, leading the
court to note that the estimable length of time in which the decedent could have
been providing plaintiff with companionship or other services "could not have
been long." Ibid. Accordingly, the panel upheld the order setting aside the
$825,000 damages verdict, finding it had to have been based on conjecture. Id.
at 595.
By contrast, in the instant case, plaintiff was not supporting Patrick and
had a significantly longer life expectancy than the plaintiff in Brown. Moreover,
A-1049-16T1
25
based on testimony of plaintiff, Irene, and Brandon, the jury could reasonably
have found the free services Patrick was providing to his mother were equivalent
to services provided by a therapist or counselor. See Green, 85 N.J. at 14.
Similarly, the jury could have inferred from the closeness of the familial bond
that, as plaintiff aged, Patrick was likely to provide services equivalent to that
provided by a nursing home or caretaker. See id. at 19-20.
Consistent with longstanding precedent, we hold that plaintiff was not
required to present expert testimony to establish the pecuniary value of such
services. See Lesniak, 117 N.J. at 32-33; Green, 85 N.J. at 15-17; Brown, 312
N.J. Super. at 593-94. The jury was entitled to determine the value of such
services from lay testimony using its "common knowledge and common
experience[.]" Lesniak, 117 N.J. at 33.
Additionally, we note that defendant has provided no evidence that the
verdict was animated by sympathy, passion, or prejudice. Indeed, the trial court
twice issued the model jury charge on wrongful death damages, which dire cted
the jurors not to consider plaintiff's "emotional distress" or "emotional loss" in
their deliberations. See State v. Smith, 212 N.J. 365, 409 (2012) ("We presume
the jury followed the court's instructions.").
A-1049-16T1
26
For these reasons, we conclude that the trial court properly found that the
jury's award of $500,000 in gross wrongful death damages does not shock the
judicial conscience. 4 See Goss v. Am. Cyanamid, Co., 278 N.J. Super. 227, 244-
45 (App. Div. 1994) (upholding $436,000 wrongful death verdict where the
decedent had cared for his wife, the plaintiff, after two surgeries, had prepared
meals for her, and had offered her "companionship, guidance, advice and
counsel, all of which had significant pecuniary value"). Giving plaintiff all
favorable inferences from the testimony presented at trial, we find there is ample
evidence in the record to support the jury's award. We therefore affirm the final
judgment and the trial court's order denying defendant's motion for a new trial
on damages.
C.
In summary, we find no reason to disturb the jury's verdict on liability or
damages. To the extent we have not specifically addressed any remaining
arguments raised by defendant, we find they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
4
In upholding this sum, we reiterate that the extent of wrongful death damages
is fact-sensitive and dependent on the distinct circumstances of each case. See
Beim, 216 N.J. at 501-04.
A-1049-16T1
27
Affirmed.
A-1049-16T1
28