Foundations of California Law of Wrongful Death: KROUSE v. GRAHAM (1977)
In California wrongful death litigation, today we take for granted that plaintiffs who are entitled to recover for the death of a relative under California Code of Civil Procedure Sections 377.60 et. seq. can recover both economic and non-economic damages. The distinction, and the right to recovery of both, is set forth in the applicable instruction to the jury, CACI 3921, which first describes recoverable economic damages:
The damages claimed by [name of plaintiff] fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form.
[Name of plaintiff] claims the following economic damages:
1 The financial support, if any, that [name of decedent] would have contributed to the family during either the life expectancy that [name of decedent] had before [his/her] death or the life expectancy of [name of plaintiff], whichever is shorter;
2 The loss of gifts or benefits that [name of plaintiff] would have expected to receive from [name of decedent];
3 Funeral and burial expenses; and
4 The reasonable value of household services that [name of decedent] would have provided.
The same jury instruction then goes on to describe recoverable non-economic damages:
[Name of plaintiff] also claims the following noneconomic damages:
1 The loss of [name of decedent]’s love, companionship, comfort, care, assistance, protection, affection, society, moral support; [and]
[2 The loss of the enjoyment of sexual relations[; [and]/.]]
[3 The loss of [name of decedent]’s training and guidance.]
Yet, as recently as 1977, plaintiffs’ entitlement to non-economic damages (particularly, “the loss of decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support”) was disputed, and far from clear. This entitlement was first set out with some finality in the California Supreme Court’s decision in Krouse v. Graham (1977) 19 Cal.3d 59 [137 Cal.Rptr. 863, 562 P.2d 1022]. Yet this case is best known, and most frequently cited, for an entirely different and unrelated liability proposition: that a spouse who perceived, but did not witness, his wife’s auto-pedestrian accident was entitled to recovery for negligent infliction of emotional distress. Krouse’s contribution to clarity in the area of recoverable damages for wrongful death is often ignored.
In the Supreme Court’s analysis, one appellate issue related to the propriety of the following instruction to the jury: “that Benjamin [decedent’s husband] could recover ‘reasonable compensation’ for the loss of his wife’s ‘love, companionship, comfort, affection, society, solace or moral support, any loss of enjoyment of sexual relations, or any loss of her physical assistance in the operation or maintenance of the home.’” The Court noted that the statutory cause of action for wrongful death, created in California in 1862 (California Code of Civil Procedure Section 377, now Section 377.60), provided that “pecuniary or exemplary” damages were to be awarded by the jury in the amount found “just” under all the circumstances. Ten years after its enactment, the statute was amended to remove the words “pecuniary or exemplary,” retaining the language that ‘damages may be given as under all the circumstances of the case, may be just, . . .’ (Code Civ.Proc., s 377.) Yet the Court noted that, in subsequent decisional law, a theory developed that damages for wrongful death were recoverable only for the “pecuniary” losses suffered by the decedent’s heirs. So the question remained: were these damages for loss of love, affection, and society recoverable or not?
The Court noted that, as early as 1911, decisions had held that damages could be recovered for the loss of a decedent’s ‘society, comfort and protection’ Bond v. United Railroads (1911) 159 Cal. 270, 286, 113 P. 366, though only the “pecuniary value” of these losses was held to be a proper element of recovery. But the Supreme Court then went on to note that thereafter a series of: “cases suggest a realization that if damages truly were limited to ‘pecuniary’ loss, recovery frequently would be barred by the heirs’ inability to prove such loss. The services of children, elderly parents, or nonworking spouses often do not result in measurable net income to the family unit, yet unquestionably the death of such a person represents a substantial ‘injury’ to the family for which just compensation should be paid.”
The Court further noted that, while earlier cases uniformly held that a wrongful death recovery may not include such elements as the grief or sorrow attendant upon the death of a loved one: “…it is both unnecessary and unwise to require a pecuniary loss instruction for the sole purpose of excluding these elements from jury consideration.” The best course was, the Court said: “Instead, a simple instruction excluding considerations of grief and sorrow in wrongful death actions will normally suffice.”
The Court further noted that permitting the recovery of non-economic damages, as it held was appropriate here, was consistent with U.S. Supreme Court’s interpretation of the rights of heirs, in maritime cases, to recover for “love, affection, care, attention, companionship, comfort, and protection” of the deceased. Moreover, the Court noted that these same elements of recovery clearly would be available in California as “consortium” damages in the usual personal injury action one might bring for a spouse’s injuries. For all of these reasons, the California Supreme Court concluded: “…that the instruction permitting recovery for those nonpecuniary damages herein at issue properly set forth the elements of damage recoverable by Benjamin.” Krouse v. Graham (1977) 19 Cal.3d 59, 67-70 [137 Cal.Rptr. 863, 866-68, 562 P.2d 1022, 1025-27].
Subsequent to Krouse, California law had clarity. Judicial council approved jury instructions have been created to incorporate this right to recovery. What remained unclear for over one hundred years was finally a matter of law.