Pain and suffering after the loss of a loved one is a tragic occasion filled with grief and anguish for surviving family members. The emotional trauma can impact a person’s ability to do routine tasks and may even make functioning daily difficult. Since the death of a loved one will have many repercussions, taking the time to heal from the trauma may not be an option. Financial obligations may continue to build, and the stresses of everyday life persists despite your world being changed forever. In order to compensate certain individuals who have lost a loved one due to another party’s negligence or wrongdoing, Arizona law recognizes what is known as a wrongful death lawsuit.
Wrongful death lawsuits are authorized by Arizona Revised Statutes 12-611 through 12-613. (A.R.S. 12-611, 12-612, 12-613.) These statutes outline who may potentially be held liable, who may maintain an action, and what damages are available in a wrongful death case.
A wrongful death lawsuit allows the decedent’s surviving spouse, child, parent, or if none of these beneficiaries outlive the deceased then a representative on behalf of the deceased’s estate, to hold the wrongdoer legally liable for the harm they cause as a result of decedent’s death and seek compensation for those injuries. A wrongful death lawsuit may only be maintained by the statutory beneficiaries if the deceased would have been able to maintain a legal action against the wrongdoer “had death not ensued.” (12-611.)
What Types of Damages Are Recoverable
For what damages a statutory beneficiary may recover compensation in a wrongful death lawsuits is governed by Arizona Revised Statute 12-613, which states that “[i]n an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating attending the wrongful act, neglect, or default.”(A.R.S. 12-613.) Whether this statutory language was meant to allow beneficiaries to seek damages for pain and suffering, and punitive damages divided Arizona courts through the mid 20th century. Likewise, states nationwide were trying to answer the same questions as were the Arizona courts.
One of the questions that resounded throughout courts was whether the intention behind wrongful death laws was to only compensate beneficiaries for their monetary loss as a result of the deceased’s death. While some courts held on to the common law view that only pecuniary damages were recoverable in a wrongful death action, other courts were willing to expand what they viewed as damages, injuries, and losses resulting from a close relative’s death.
As it is now read by the Arizona courts, the statutory language of A.R.S. 12-613 allows a statutory beneficiary to seek compensatory, general, and punitive damages. As determined by the Arizona Supreme Court and Arizona case law, included within the category of compensatory damages is a right to seek damages for pain and suffering. When thinking about recoverable damages in a wrongful death lawsuit, it is important to remember that the law is intended to compensate the survivors for their losses, it is not intended to compensate the deceased, whose damages may potentially be sought under a different legal theory.
Pain and Suffering
During the mid 20th century in the United States, courts nationwide were divided on whether a statutory beneficiary in a wrongful death action could recover compensation for their pain and suffering resulting from a loved one’s death. While jurisdictions, such as Michigan and Washington, were holding that statutory beneficiaries could not pursue or recover damages for pain and suffering, other jurisdictions were finding the converse, holding that beneficiaries could pursue damages for pain and suffering as part of their wrongful death lawsuit. (Lockhart v. Besel, 426 P.2d 605 (Wash. 1967), Wycko v. Gnodtke, 105 N.W.2d 118 (Mich.1960.)
In Arizona, the law was settled in 1970 when the Arizona Supreme Court ruled on the case of City of Tucson v. Wondergem. (City of Tucson v. Wondergem, 466 P.2d 383 (Ariz. 1970.) In City of Tucson, the widow of a Tucson man who tragically drowned in a flash flood sued the city of Tucson for wrongful death due to negligence and won. On review, one of the questions for the Arizona Supreme Court was whether pain and suffering damages were recoverable in a wrongful death action, and specifically whether the trial court erred in giving the jury an instruction that they “may also consider as bearing upon the amount of your verdict, any anguish, sorrow, stress, mental suffering, pain, and shock which from the evidence, the death of Peter Wondergem may have caused his wife to suffer.” (Id.)
The Arizona Supreme Court held that a statutory beneficiary maintaining a wrongful death lawsuit may seek to recover damages for the pain and suffering they experienced as a result of their loved one’s death when the evidence shows that the beneficiary themselves endured pain and suffering as a result of their loved one’s death. In City of Tucson, the court found for the wife as she presented evidence that she had endured pain and suffering as a result of husband’s death when she had to be hospitalized and treated to deal with the trauma caused by her husband’s death. (Id.)
One way the Arizona Supreme Court supported its finding was by looking to holdings in other jurisdictions for guidance. In City of Tucson, the court referenced a Virginia case, which stated that the trial court erred when it: erroneously emphasized the idea that the purpose and object of the statute is to allow damages solely to those who might reasonably look to decedent for support. That is a matter to be considered by the jury, but it is not the sole basis of recovery on which the statutory beneficiaries may rely or the only element of damage to be considered by the jury. There are other matters and elements, such as loss of decedent’s care, attention and society, and the sorrow, suffering and mental anguish occasioned the beneficiaries by reason of his death, which may be considered and taken into account by the jury and are elements for which damages may be given to the statutory beneficiaries even though they may have had no reasonable expectancy of support from the decedent had he not been killed. (Wolfe v. Lockhart, 195 Va. 479 (Va. 1953.)
In addition, the court looked to their earlier decision in Boies v. Cole and noted that while the facts of the cases were different, Boies established that “the measure of damages is no longer limited to pecuniary damages, but also includes allowance for such things as loss of companionship, comfort and guidance.” (Boies v. Cole, 407 P.2d 917 (Ariz.1965.) The court went on to state that when facts are as they were in Wondergem, an instruction to allow the jury to consider whether to award a beneficiary compensation for “anguish, sorrow, mental suffering, pain and shock” was permissible. Arizona courts have been following this law since it was established by the Wondergem case in 1970.
In the 2007 case of Girouard v. Skyline Steel, Inc., the Arizona Court of Appeals reversed the trial court’s decisions, holding that the trial court erred when it improperly prevented the plaintiff, statutory beneficiary, from submitting evidence of the pain and suffering he endured as a result of his son’s death. (Girouard v. Skyline Steel, Inc., 158 P.3d 255 (Ariz. Ct. App. 2007.)
What Types of Evidence is Admissible to Show Pain and Suffering
In order for the jury to make a determination of whether a monetary award for pain and suffering is appropriate, the statutory beneficiary must present evidence that can illustrate to the jury how they suffered. Determining what evidence may be submitted to the jury is a matter for the court to decide. Although Arizona Rules of Evidence 402 states that relevant evidence is generally admissible, a court may exclude the evidence if it makes a determination that the probative value of the evidence is substantially outweighed “by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Ariz. R. Ev. 403.)
To make this determination, a court first analyzes the probative value of the evidence for that which it is offered to prove. (Girouard v. Skyline Steel, Inc., 158 P.3d 255 (Ariz. Ct. App. 2007.) Then the court weighs this against the potential prejudice. (Id.) If there is other evidence that is less inflammatory but equally as probative as the evidence in question, then it is more likely the court will exclude the potentially prejudicial evidence. (Id.) In a wrongful death case, the admissibility of evidence depends on its relevance and probative value with regard to the damages a statutory beneficiary may claim under the wrongful death laws. (Id.) Importantly only the survivors may be compensated for their pain and suffering in a wrongful death lawsuit, evidence may not be admitted to establish that the decedent is entitled to pain and suffering damages, as those are not recoverable in a wrongful death lawsuit. (Id.)
In Girouard, the Arizona Court of Appeals held that to help understand how the deceased’s father endured pain and suffering as a result of the his son’s death, evidence of how the decedent was killed may be submitted to the jury as evidence. (Girouard v. Skyline Steel, Inc., 158 P.3d 255 (Ariz. Ct. App. 2007.) In Girouard, the son was killed when his vehicle was engulfed in flames due to another party’s negligence. While the defendant argued that evidence of how the son died was too prejudicial to be admitted, the court found otherwise. The court stated, “insofar as the manner of a decedent’s death may have added to a wrongful death plaintiff’s anguish resulting from the death, as opposed to anguish caused by knowledge of premortem pain suffered by the decedent, it is highly relevant to the plaintiff’s claim for damages” (Girouard v. Skyline Steel, Inc., 158 P.3d 255 (Ariz. Ct. App. 2007.) The key in Girouard, is that the father’s emotional turmoil was caused not only by his son’s death, but by how his son died and the fact that his son was so badly burned beyond recognition that they had to have a closed casket at the funeral. In this case, the tragic nature of his son’s death caused the father his own pain and suffering. (Id.)
Generally, the courts view A.R.S. 12-613 as granting the jury broad discretion when it awards damages in a wrongful death lawsuit. Further, Arizona courts view the determination of an amount for a damage award to be a question for the jury. As such, the courts will not disrupt a jury award for damages “unless the award was the result of passion and prejudice.” (Larriva v. Widmer, 415 P.2d 424 (Ariz. 1966.) The question is whether the verdict is “so manifestly unfair, unreasonable and outrageous as to shock the conscience of the Court.” (Id.) Only then should a court consider disrupting the jury’s award.
Sorting through the aftermath of a loved one’s death can be confusing and exhausting. Trying to recover from the trauma can be challenging for many. If your loved one’s death was caused by another person’s negligence or wrongdoing, coming to terms with the fact that your loved one is gone maybe even more difficult as the death may seem needless and unnatural. While you may feel isolated, you do not need to go through this period alone. Pursuing legal action can mean not only seeking compensation from the wrongdoer for your injuries resulting from decedent’s death, but it can also help with moving toward a place of closure.
Although we realize that monetary compensation cannot bring your loved one back to life, or undo the harm you have suffered as a result of their death, it can help by easing some of your financial burdens, thereby allowing you time and space to heal. To learn more about wrongful death lawsuits in Arizona, contact the seasoned and caring Arizona attorney at the Thompson Law Firm today.