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Bar Journal - September 1, 1999

Marcotte v. Timberlane/Hampstead School District: Recognition of Hedonic Damages in NH

By:

I. BACKGROUND

On September 27, 1989, seven-year-old Nicholas Marcotte was injured when classmates tipped over an unanchored soccer goal, fracturing his skull. He died later that afternoon as the result of his injury. A wrongful death lawsuit was later filed by Robert Marcotte, Nicholas' father, as administrator of Nicholas' estate against the Timberland/Hampstead School District, the Timberland Soccer League, and Process Engineering, the manufacturer of the goal.1 At trial, the superior court allowed the plaintiff to introduce evidence of the lost value of Nicholas' life, also known as hedonic damages.

On appeal, the supreme court was asked to decide, inter alia, whether New Hampshire's wrongful death statute, N.H. RSA 556:12, authorizes recovery for the loss of life itself. Over the past fifteen years, the question of whether or not hedonic damages are available in New Hampshire has been widely litigated at both the superior court and federal district court levels with varying results. Until the Marcotte case, the New Hampshire Supreme Court had never ruled dispositively on the issue.

Justice Horton, writing for the court, reasoned that recognition of a cause of action for hedonic damages was required by the plain meaning of RSA 556:12 and was consistent with both legislative history and prior judicial interpretations.2

II. WHAT ARE HEDONIC DAMAGES?

The word "hedonic" is derived from hedone, a Greek word meaning pleasure.3 Hedonic damages are generally awarded "for the loss of enjoyment of life, or the value of life itself, as measured separately from the economic productive value that an injured or deceased person would have had."4 In determining the "hedonic" value of life, it is necessary to include not just one's economic, moral, and philosophical values, but all the value with which one might hold life.5

While hedonic damages refer to compensation for the lost pleasures associated with living one's life, it should not be confused with "hedonism," the "Epicurean philosophy that pleasure is the sole good in life."6 In an attempt to head off any such confusion, we will at times refer to hedonic damages by their other common appellations: "loss of life damages," "value of lost life," and damages for the "loss of life itself."7

III. FACTS AND ISSUES OF THE CASE

On the day Nicholas Marcotte died, he was a second grade student at the Pollard School in Plaistow, New Hampshire. The accident occurred when two of Nicholas' classmates caused a top-heavy soccer goal to topple over, striking Nicholas in the head. The 310-pound carbon steel goal was manufactured in 1985 by Process Engineering for the Timberlane Youth Soccer league. The soccer league supplied Process Engineering with the design plans for the goal based upon a diagram from a sports equipment manufacturer's catalog. The catalog specifically warned that such goals should be installed with a poured concrete anchoring system. The soccer league requested that the design be modified, substituting carbon steel for aluminum because it would be less expensive. The goals were donated to the Timberlane/Hampstead School District and were installed at the Pollard School.

The goal that Process Engineering built was steel on its face and supported by tubular aluminum braces in back. To keep the structure anchored in place, four twenty-four inch bolts were driven into the ground; however the anchor bolts were eventually removed when it was discovered that schoolchildren were pulling them out of the ground and using them for weapons. In the months preceding the accident that killed Nicholas Marcotte, there were at least two incidents reported to school officials where children were injured when the soccer goal tipped over.

Nicholas' father subsequently initiated a wrongful death action in the Rockingham County Superior Court alleging (1) that the soccer league and Process Engineering were negligent in the design, fabrication, testing, and installation of the soccer goal; and (2) that the school district was negligent in failing to maintain its grounds in a reasonable condition when it knew or should have known of the dangerous nature of the soccer goal.

On October 18, 1993, a jury found the defendants jointly and severally liable for Nicholas' death and awarded his estate $925,000.00 in damages plus interest and costs. The trial judge however, abated the award against the district to the $150,000.00 statutory limit for governmental liability under RSA 507-B:4, I, pursuant to his authority under RSA 507-B:4, III. The plaintiff then filed an appeal to the New Hampshire Supreme Court arguing that the abatement was in error.

Two of the defendants, Timberlane/Hampstead School District and the Timberlane Youth Soccer League, filed a cross-appeal alleging that the Superior Court erred when: (1) it allowed the plaintiff to introduce evidence of loss of life; (2) it instructed the jury that loss of life may be considered as an element of damages; (3) it admitted certain evidence over the defense's New Hampshire Rule of Evidence 403 objections; and (4) it refused to set aside the verdict as excessive. Additionally, the soccer league argued that the court committed error by failing to provide various requested jury instructions. The third defendant, Process Engineering, subsequently settled with the plaintiff and withdrew from the appeal.

In February of 1999, the Supreme Court reversed the abatement of the jury award and affirmed the trial court's other rulings. For the purposes of this paper, we shall limit the discussion to a review of the defendants' primary argument on appeal; the availability of hedonic damages under New Hampshire law.

IV. LEGISLATIVE HISTORY AND EVOLUTION OF NEW HAMPSHIRE'S WRONGFUL DEATH STATUTE

At common law, actions for wrongful death were not recognized. Early evidence of this can be traced back to Lord Ellenborough's dictum in Baker v. Bolton that, in civil court, "death of a human being could not be complained of as an injury."8 However, the law changed in 1846 when the British Parliament passed the Fatal Accident Act, also known as Lord Campbell's Act.9 Lord Campbell's Act permitted wrongful death suits to be brought by the decedent's immediate family for pecuniary losses. It was not long after that several American states adopted their own versions of the act.

New Hampshire's first wrongful death statute was adopted in 1887. It read:

In assessing damages [for the injury to the person and the estate] there shall be considered the mental and physical pain of the injured person, the expense upon his decease, his age, and his probable duration of life and earning capacity but for the said wrongful act or neglect.10

The 1887 statute is important for at least two reasons. First, the statute recognized that wrongful deaths create injuries to a decedent's estate as well as to his or her survivors. This is significant because the statute does not limit a claim to merely compensating the decedent's family for their own, pecuniary loss.

The second important aspect of the 1887 statute is the structure of the phrase, "probable duration of life and earning capacity but for said wrongful act or neglect."11 Under ordinary rules of sentence construction, "life" must be read together and in the context of "earning capacity." This reading would appear to prove that the drafters of the law did not recognize the value of human life independent of one's earning capacity; a sentiment widely held at the time. While this would tend to support the argument against recognizing hedonic damages, we mention it here to call attention to how the law has since changed.

The first change to the wrongful death statute was made four years later in 1891. In revising the statute, the legislature passed the following:

The mental and physical pain suffer by him in consequence of the injury, the reasonable expenses occasioned to his estate by the injury, the probable duration of his life but for the injury, and his capacity to earn money during his probable working life, may be considered as elements of damage in connection with other elements allowed by law.12

If one compares the two statutes carefully, it is easy to see how the law changed; the drafters separated "duration of life" and "capacity to earn money" by a comma, indicating that the two concepts were no longer a single idea. The two concepts are distinct elements that must be given effect independent of the other. Based upon the plain language of the revised statute, the decedent's estate is to be compensated for the loss of life he or she would have had but for the injury as well as for the decedent's lost earning capacity. This is the essence of the argument favoring an award for hedonic damages under the statute.

The last modification to RSA 556:12 came in 1971 and was relatively minor. There were just three changes made; re-characterizing the injury suffered "by him" to "by the deceased," the addition of the words "during his probable working life" to "his capacity to earn money," and finally the insertion of the phrase "in the same manner as if the deceased had survived" to the end of the section. The changes made did more to clarify than to substantively alter the statute.

Although we have presented the evolution of RSA 556:12 as a straightforward progression, the recognition of hedonic damages has not been as clear cut. The debate over the availability of awards for the lost value of life in New Hampshire has raged at both the superior court and federal district court level for years with varying results.13

V. THE HOLDING - NEW HAMPSHIRE'S NEW RULE OF LAW

A. The New Hampshire Supreme Court's Examination of the Text of N.H. RSA 556:12

The question of whether or not New Hampshire's wrongful death statute, RSA 556:12, permitted recovery for damages attributed to "loss of life" was a question of first impression for the New Hampshire Supreme Court. The statute provides:

If the administrator of the deceased party is the plaintiff, and the death of such party was caused by the injury complained of in the action, the mental and physical pain suffered by the deceased in consequence of the injury, the probable duration of his life but for the injury, and his capacity to earn money during his probable working life, may be considered as elements of damage in connection with other elements allowed by law, in the same manner as if the deceased had survived.14

The court looked to the plain meaning of the statute's words to determine if the language of the statute was clear on its face and not so ambiguous as to subject the meaning to modification through interpretation. If the language was clear, then the court would not need to address the legislative intent to interpret the meaning of the statute. The court stated:

The plain language of RSA 556:12 establishes that where the decedent's death 'was caused by the injury complained of in the action,' the 'probable duration of his life but for the injury' may be considered as an element of damages in addition to the other enumerated damage elements: mental and physical pain suffered by the deceased, reasonable expenses occasioned to the decedent's estate, and probable future lost earnings. If duration of life is to be considered as an element of damages, then its constitutive factors, such as quality of life, can also be considered in assessing such damages. 15

The court went on to state that the phrase "the probable duration of his life but for the injury" referred to the "likely length of the decedent's life if the injury had not occurred, that is, the life that the decedent lost as a result of the injury."16 While the court recognized that it would be difficult for juries to select the precise nature of the attributes of life that would be considered and used to calculate damages for loss of life, it made it clear that juries dealt with other uncertainties, such as mental and physical pain and suffering, which are equally intangible. Hence, the court was comfortable in leaving calculation of loss of life damages to the judgment of the jury.

The court rejected the defendants' argument that "the probable duration of his life but for the injury" places parameters on the decedent's capacity to earn money. Citing normal rules of English punctuation the court stated that, "the placement of commas between each element enumerated and before the conjunction, 'and,' generally dictates that the elements are to be read as a consecutive series of discrete items ... elements in RSA 556:12 therefore must be read as discrete items of damages, each a distinct part of the series."17 Additionally, the court read the specific terms of the statute, "working life" and "probable duration of life", to be separate issues in view of the fact the legislature also included the clause describing the decedent's "capacity to earn money during his probable working life." Otherwise, the court pointed out, the clause "probable duration of his life but for the injury" would be mere surplusage in which the court would not presume the drafters of the statute had indulged.

The court supported its argument that the clauses were separate and distinct, citing the case of Pitman v. Merriman.18 The court stated that Pitman held,

that the decedent's 'expectancy of life and his earning capacity' were 'factors for consideration' bearing on the diminution of the decedent's estate. (Emphasis added.) By naming 'expectancy of life' and 'earning capacity' as separate factors, not one factor modified by another, Pitman itself implicitly distinguished between the two elements. The fact that the probable duration of life is also a factor in calculating the decedent's earning capacity does not negate the independent significance of the explicitly stated element of damages, 'probable duration of his life but for the injury.' Pitman thus foreshadowed the recognition that in a wrongful death action, an estate is diminished both by the loss of the decedent's net earnings and the value, translated into dollar figures for the purpose of compensation, of the decedent's lost life.19

The court further indicated that it would interpret the clauses to mean that separate and distinct damages could be awarded, citing Burke v. Burnham.20 In Burke, the court analyzed a situation where the injured party survives. In such cases, the court said RSA 556:12 would have to be construed to offer separate compensability for the loss of enjoyment of life. Thus, loss of life damages are provided by the enumerated element of damage in the statute.

B. The Supreme Court's Examination of the Legislative History and Prior Judicial Opinions Regarding N.H. RSA 556:12

In its decision, the majority disagreed with the dissent's interpretation that the legislative history of RSA 556:12 does not provide for loss of life damages. Examining the statute's history, the court stated that it would come to the same conclusion that loss of life damages are available in a wrongful death action. At common law there was no action for personal injuries resulting in death unless the injured party commenced the action before his or her death.21 In 1879, the first statutory enactment in New Hampshire regarding post death lawsuits permitted executors to recover damages for personal injuries resulting in death. The statute however, did not allow recovery for damages resulting from the death itself.22 In 1887, the legislature enacted a cause of action for wrongful death that broadened the scope of recovery and "provided for the consideration of the fact of death in the assessment of damages."23 In 1891, the survival and wrongful death statutes were consolidated into a single statute but did not create any substantive changes. In 1971, the legislature added two notable phrases to the wrongful death statute. These additions were the phrases, "during the probable working life" to the clause "capacity to earn money", and "in the same manner as if the deceased had survived" to the end of the statutory provision. The court interpreted these additions to mean that the legislature's intent in adding the phrases was to include loss of life damages as a separate element of damages under the wrongful death statute. The court further pointed out that the legislature added minor stylistic changes to the statute in 1997 by permitting the trier of fact to award damages to a decedent's surviving spouse for the loss of comfort, society, and companionship.

The court also refuted the dissent's assertion that prior cases decided by the court negated the compensability of loss of life damages. For example, In West v. Railroad,24 the court stated that the holding allowed an action for personal injuries to be brought by the injured person during his or her lifetime. In the alternative, the person's administrator could bring the action after death resulting from the injuries cited in the initial suit. The injured person's estate could then recover for loss of earning capacity for the probable duration of life. The court also stated that West foreshadowed the current issue of loss of life damages.

Recovery for death - for the deprivation of the right to live - may be a different thing from recovery for loss of capacity to earn money. Heretofore no distinction has been drawn in the decisions in this jurisdiction between these two. Its economic rather than its sentimental value has not been considered. Whether in the suit instituted by an administrator for the benefit of certain relatives the recovery provided for by [the 1891 wrongful death provision] includes sentimental value, is a question which is not involved here. 25

The court also distinguished several other cases brought forth by the defendants in Marcotte. In Ham v. Interstate Bridge Authority,26 the court stated that the defendants inappropriately claimed that the holding supported the theory that damages for loss of life are not recoverable in wrongful death actions. Instead, the court stated that Ham held that damages for loss of life are not available before the decedent's death.

In Burke, the court stated that it considered loss of life damages compensable under the wrongful death provision of the act of 1891. Summarizing the findings in Burke, the court stated that, "if it is found that the death resulted [from the defendant's wrong], recovery may be had under [the wrongful death provision]. If it is found that it did not, recovery is governed by the rules of damages which pertain in an action brought before death."27 Additionally, the court found that the theory would allow for a broader range of damages, enlarging the damages available due to the possibility of double recovery.28

The court believes that Burke stands for two related propositions that support the compensability of loss of life damages under the wrongful death provision. First, damages available under the wrongful death provision include all of the damages available in survival actions while the reverse is not true. Second, RSA 556:12 provides damages for loss of enjoyment of life that comport with the scheme allowed under the statute. Thus, the additional damages available under the wrongful death provision are the very damages for loss of "continued enjoyment of life" that the court held were not available in a survival action under Ham.

C. The New Hampshire Supreme Court Clarifies the Rule of Law Under N.H.
RSA 556:12

After the court examined the plain meaning of RSA 556:12, its legislative history, and the cases that interpreted prior versions of the legislation it ruled that, "based on the plain meaning of RSA 556:12 and our cases interpreting similar older versions of the statute, we hold that damages for loss of life are recoverable as a separate element of damages under the wrongful death statute. Accordingly, the trial court appropriately instructed the jury that it could compensate the decedent for loss of life."29

The defendants in Marcotte contended that the trial court erred in admitting the decedent's computer diary and various photos offered by the plaintiff over their New Hampshire Rule of Evidence 403 objections. The court took great care in deferring to the discretion of the trial court and its judgment of what evidence was relevant to the action. Applying the standard that, "any tendency to make the existence of fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,"30 the court found that the video diary went "right to the heart of hedonic damages."31 As for photographs, the court stated that while pictures of the decedent during life may not be prima facie admissible, the photographs in Marcotte became probative, and thus, admissible, when the defendants challenged the decedent's health. Additionally, photographs taken at the scene of the accident were admissible since the trial court determined that the photographs would be helpful to the jury in understanding the mechanism of the accident and the resulting death. After applying a balancing test, the only photos the court did not admit were those it found to be cumulative. Therefore, it appears that evidence such as video recordings and photographs will be admissible to prove loss of life damages when the probative value is not substantially outweighed by the risk of unfair prejudice.

The soccer league challenged the jury instructions issued by the trial court because the court refused to instruct the jury on the doctrine of intervening/superceding causes. At the close of evidence, the league requested that the judge inform the jury that its negligence, if any, could be superceded by the subsequent negligence of the school district in failing to respond to clear warnings that the soccer goal was dangerous. However, the court did not issue this instruction because the soccer league had not presented any evidence during the trial that the alleged misuse of the soccer goal was not reasonably foreseeable. Thus, the proper foundation during trial is critical in determining what instructions potential parties may expect the court to issue in loss of enjoyment of life actions.

The defendants in Marcotte also claimed that the trial court erred in refusing to set aside the $925,000.00 damage award as excessive. The court stated, "we have emphasized that a trial court's refusal to set aside the verdict as excessive will not be overruled unless the damages are so exorbitant that no reasonable person could conclude that the jury was not influenced by partiality or prejudice, or misled by some mistaken view of the merits of the case." Citing Champion v. Smith,32 the court pointed out that there is no exact formula to determine loss of enjoyment of life damages. Therefore, it upheld the trial court's decision concluding that a reasonable person could have reached a similar result.

Finally, the court ruled against capping damages due to municipal liability. At the time of the accident, the school district was insured under a primary policy with a$1,000,000.00 personal injury liability limit and an umbrella policy with a $400,000.00 personal injury limit. The school district relied on RSA 507-B:4, I, which provides that liability of a governmental unit is limited to $150,000.00 per person, and that a court should abate any verdict to the extent that it exceeds that limit. Therefore, the school district claimed that the verdict for the plaintiffs should be abated in accordance with the statute. The plaintiff argued and the court agreed that the primary policy provided $1,000,000.00 in personal injury coverage and that the insurer's attempt to restrict coverage through limiting endorsements contravenes the letter and intent of N.H. RSA 412:3.

VI. CONCLUSION: THE EFFECT OF THE MARCOTTE HOLDING ON THE PRACTITIONER IN NEW HAMPSHIRE

Now that the court has recognized hedonic damages, the real question for plaintiff and defense attorneys alike is how to show the value of the decedent's life. Given the broad scope of discovery that exists in civil litigation, it appears that inquiries are only constrained by the boundaries of one's imagination. In addition to the evidence presented in Marcotte, an attorney might seek e-mail, correspondence, school records, and testimony from friends and acquaintances. While these examples may seem innocuous, parties must also be prepared for probing inquiries into sensitive areas of the decedent's life including, but not limited to, medical records, history of mental illness, alcohol and drug use, past physical and emotional abuse, and marital strife.

It remains to be seen what effect the discovery process will have on plaintiffs seeking hedonic damages when faced with the prospect that intimate details of the decedent's life may be revealed to the public. Perhaps the intrusive nature of discovery will have a chilling effect, causing the plaintiff to settle the case or avoid seeking hedonic damages altogether. Alternatively, officious questioning may strengthen a plaintiff's resolve to endure the arduous trial process.

Now that the court has recognized that hedonic damages are available under New Hampshire law, practitioners are invited to determine how those damages will be attained in the future. As with any new area of the law, it will be interesting to observe the creativity employed by practitioners as successful strategies are forged.

ENDNOTES

1.

Marcotte v. Timberlane/Hampstead School District & a., No. 94-061, slip op., (N.H. S.Ct. Feb. 9, 1999).

2.

Id.

3.

Webster's Ninth New Collegiate Dictionary 561 (1989).

4.

Black's Law Dictionary (6th ed. 1990).

5.

Sherrod v. Berry, 629 F.Supp 159, 163 (N.D. Ill. 1985) aff'd 827 F.2d 195 (7th Cir. 1987), rev'd on other grounds, 856 F.2d 802 (1988)(en banc).

6.

66 Notre Dame L.Rev. 57, 116 (FN 8).

7.

Id.

8.

Baker v. Bolton, 1 Campbell 493; 170 Eng. Rep. 1033 (1808).

9.

9 & 10 Vic., ch. 93.

10.

New Hampshire Laws 1887, ch.71, sec. 1 (emphasis added).

11.

New Hampshire Laws 1887, ch.71, sec. 1 (emphasis added).

12.

Public Statutes 1891, ch. 191, sec. 12. (emphasis added).

13.

See William D. Pandolph and Sean M. Dunne, The Debate Over Hedonic Damages in Wrongful Death Actions, 35 N.H.B.J. 48 (March 1994).

14.

N.H. RSA 556:12 (emphasis added).

15.

Marcotte v. Timberlane/Hampstead School District & a., No. 94-061, slip op. at 5 (N.H. S.Ct. Feb. 9, 1999) citing Sherrod v. Berry, 629 F.Supp. 159, 163 (N.D. Ill. 1985).

16.

Marcotte v. Timberlane/Hampstead School District & a., No. 94-061, slip op. at 6 (N.H. S.Ct. Feb. 9, 1999).

17.

Id.

18.

Pitman v. Merriman, 80 N.H. 295 (1922).

19.

Marcotte v. Timberlane/Hampstead School District & a., No. 94-061, slip op. at 6 (N.H. S.Ct. Feb. 9, 1999) citing Pitman v. Merriman, 80 N.H. at 297 (1922).

20.

Burke v. Burnham, 97 N.H. 203 (1951).

21.

See Piper v. Railroad, 75 N.H. 435, 444 (1910).

22.

See Laws 1879, 35:1.

23.

Piper, 75 N.H. at 443 (1910).

24.

West v. Railroad, 81 N.H. 522 (1925).

25.

Marcotte v. Timberlane/Hampstead School District & a., No. 94-061, slip op. at 8 (N.H. S.Ct. Feb. 9, 1999) citing West, 81 N.H. at 529 (1925).

26.

Ham v. Interstate Bridge Authority, 92 N.H. 268 (1943).

27.

Id. at 209.

28.

Id. at 206.

29.

Marcotte v. Timberlane/Hampstead School District & a., No. 94-061, slip op. at 11 (N.H. S.Ct. Feb. 9, 1999).

30.

N.H. R. En'd. 401.

31.

Marcotte v. Timberlane/Hampstead School District & a., No. 94-061, slip op. at 11 (N.H. S.Ct. Feb. 9, 1999).

32.

Champion v. Smith, 113 N.H. 551, 552 (1973).

The Author

Edward T. White, Class of 2000, Franklin Pierce Law Center, Concord, New Hampshire.

The Author

Dennis J. Withee, Class of 2000, Franklin Pierce Law Center, Concord, New Hampshire.

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