Tuesday, January 17, 2006

Wrongful Death Damages and Sorrow

The single best event I attended at AALS in DC (besides, of course, the Texas party) was by Andrew McClurg at Florida International.  He presented his article Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages, 85 B.U.L.Rev. 1 (2005), in a session on compensation.

The article is fascinating and moving -- yes, I did just describe a law review article as moving.  He provides a wrenching account of the sudden death of his fiance Kody Logan, exploring his grief and the grief of her family in coping with the (tortious) car accident that took her life.  He also discusses his challenges in advising her family: "How do you explain to a mother who has just lost her only daughter that the value of her life under the law is literally zero?"  (Page 6.)

Ultimately, McClurg concludes that wrongful death suits fail to account for two important aspects of a death: the value of the decedent's life itself and the grief suffered by her survivors.  To deal with this failure, he proposes "damages for the lost value of life" that would

be used for the exclusive purpose of establishing a lasting memorial to the decedent.  Such a solution would promote both the economic deterrence and corrective justice models of tort law and serve, albeit indirectly, to compensate the decedent by continuing his or her memory and place in this earthly world.  Additionally, the memorial established with the lost life damages would, at no additional cost, provide a proven grief-healing instrument for all persons who mourn the decedent's passing.  Finally, because it is recommended that memorials created with lost life damages be required to serve a utilitarian function, another unique aspect of the proposal is that it would allocate tort damages in ways that benefit society in addition to tort victims, enhancing the net social benefit of the tort system.

(Page 9, footnotes omitted.)

I've assigned the article as part of my survival/wrongful death section in my evening Torts class (which is full year) and expect to add it to my syllabus in the future.  My hope is that it brings a reminder of the realities that the tort system seeks to deal with to a section of the course that can sometimes be rather technical.

The article is not online so far as I can tell, but is of course available via Westlaw and Lexis.

http://lawprofessors.typepad.com/tortsprof/2006/01/wrongful_death_.html

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