By addressing the scope of damages sought in a wrongful death lawsuit for one’s child, a recent decision has reaffirmed the bar of recovery of non-pecuniary damages. In separating pecuniary damages from psychological damages, the decision also draws a firmer distinction between the damages a child can seek for the wrongful death of a parent and the damages parent can seek for the alleged wrongful death of a child.

Judge Michael A. Telesca of the United States District Court, Western District of New York, has issued a decision and order that provides insight into this unique area of New York state law.

Damages arising from loss of services

Hollingsworth v. Roseland Wake Park, LLC, 6:18-cv-06013 arises out of the tragic death of Plaintiff’s 22-year-old son. The decedent, a student at the Rochester Institute of Technology, attended an event at defendant Roseland Wake Park in Canandaigua, New York, in September 2016. Roseland Wake Park is a wake board park, which uses a cable system to pull wake boarders through a 2,100 foot course complete with obstacles, ramps, and jumps. The decedent completed at least one loop through the course without incident when, during a subsequent run, the wake board struck a ramp and jump, causing him to strike the ramp head-first. The decedent was pronounced dead two days later.

Plaintiff commenced a lawsuit seeking damages for, inter alia, the decedent’s wrongful death for the services the decedent would have provided to Plaintiff and the decedent’s mother, while expressly disclaiming any damages from the decedent’s lost earnings or financial support.

According to Plaintiff, the fact that the decedent, as opposed to a stranger, would have performed these services “enhance[d] their pecuniary value.” In particular, Plaintiff alleged the decedent would have provided services related to (1) managing future medical care, (2) managing finances, (3) managing Plaintiff’s home, and (4) assisting with shopping for personal items. During a May 2019 hearing, Plaintiff conceded that the damages were related to the “psychological benefit” of the decedent performing these services.

Definition and scope of pecuniary damages

The following year, Defendants moved for summary judgment on Plaintiff’s claims for damages arising from their loss of the decedent’s services. Defendants’ argued that, under section 5-4.3 of New York’s Estates, Powers, and Trusts Law (“EPTL”), Plaintiff was limited to recovery of pecuniary damages, and that the loss of services damages Plaintiff demanded were actually emotional damages. Plaintiff maintained, in opposition, that the damages sought were strictly pecuniary.

Judge Telesca began by noting that all New York state courts interpreting New York’s wrongful death statute held that damages for psychological pain are prohibited. Rather, these courts have all found that the wrongful death statute expressly provides only for the recovery of pecuniary damages, and that there are four categories of such damages: (1) loss of the decedent’s earnings, (2) loss of the decedent’s services, (3) loss of parental guidance, and (4) the possibility of inheritance. Based on Plaintiff’s representations during discovery as to the nature of the damages sought, Judge Telesca concluded that Plaintiff was not seeking damages for financial support lost from the decedent, or that the decedent would personally “perform any unique” services.

Judge Telesca found that Plaintiff essentially sought damages similar to those a child seeks for the loss of a parent. In such cases, New York courts apply a broader definition to pecuniary damages, which includes the loss of services for “household management” and the loss of training, instruction, and guidance. Citing to the New York Court of Appeals decision in Tilly v. Hudson River Railroad Co., (24 NY 471 (1862)), Judge Telesca described the damages a child suffers from the loss of a parent as being of a “different kind.” The key distinction for the expanded definition of pecuniary damages for a child from the loss of a parent is the “duty a parent has” to their child.

While the damages Plaintiff sought could arguably fall within the expanded definition of pecuniary damages for a child for the loss of a parent, New York courts have refused to apply this broader definition to the pecuniary damages alleged by a parent for the loss of a child. Further, Judge Telesca concluded that Plaintiff conflated the cost of replacing the services the decedent would allegedly provide, which were recoverable as pecuniary damages, with the psychological value of having the decedent perform those services, which were not recoverable. Finally, Judge Telesca held that Plaintiff was unable to overcome the prohibition against recovering non-pecuniary damages by attempting to place a different label on them, in particular where the decedent did not possess any special skills.

Importantly, the Hollingsworth decision reaffirms the bar on the recovery of non-pecuniary damages for the wrongful death of a parent’s child. The decision also highlights the importance of the substance of the alleged damages over the form: it is not possible to overcome damages that are psychological in nature merely by attempting to label them as something else. In addition, it is important to consider that the damages a child can seek for the wrongful death of a parent are distinct from those a parent can seek for the alleged wrongful death of a child. Finally, Judge Telesca’s decision demonstrates how critical it is, during discovery, to, lock a plaintiff into the alleged damages early and in admissible form, so that a dispositive motion is possible.