Is there a remedy under the law for every loss one might suffer? The answer is no, if by remedy you mean to ask: “can this loss be reimbursed, refunded, or made whole again.” For example, can I turn to the law to find satisfaction if my pristine, classic, red 1965 Mustang convertible is destroyed by a careless driver? Of course, the law will provide some redress. I can demand the negligent party pay me for the value of the vehicle. But no amount of money is going to replace the satisfaction afforded by being the owner of a truly classic car that was the envy of every muscle car show I bothered to attend.
I am sure you can think of other examples. What about the antique rocker that your great grandmother used while knitting socks for her sons who were off fighting the civil war? What about the once-great athlete whose Super Bowl ring, representing the apex of his achievement as a professional player, was stolen from his home along with many other mundane items that he did not really even care about? And what about that ancient artifact passed down by your family for generations. Did it really once belong to Abraham Lincoln? Maybe, maybe not. But the legend has lived for over a century and the value to you is priceless.
We know that the law provides avenues for you to address each of these losses, and one of the ways we protect ourselves against loss is through insurance. But what will your insurance pay you for the antique rocker? Probably the depreciated value of about $75. What will the Super Bowl ring be worth? Maybe $10,000. And what about the historic artifact? How about $100? Do you think the owners of any of these gems will fell fully compensated?
We all know intuitively that money just cannot replace some things in our lives that we view as precious. Is there anything more precious than a child? And is there anything more priceless and irreplaceable than our child, whom we love with an unlimited love that knows no bounds? The answer: probably not. You see, the life of a child, and the joy and love that child brings to one’s life is priceless. It is beyond measure and is not capable of being assessed in monetary terms. But does that mean that, in the eyes of the law, the child’s life is worthless? Certainly not.
In writing this article, I felt compelled to discuss the avenues available to parents when the absolute worst happens: something or someone causes them to lose a child for no good reason. What do they do next? Is there a remedy? In certain circumstances the answer is: Yes. But it is important first to recognize that nothing the law can do or will do, will ever be enough. No amount of money will come close to replacing the child. Even the earlier examples cited of valuable and rare items that hold special personal meaning to us are not even comparable to the value of a child. No amount of recovery can ever touch the emotional loss and the painful knowledge that the rest of your life will be devoid of the love and affection you so eagerly absorbed from your child when she was alive. There is no way to compensate one for the loss of something so priceless.
In early times, those who made our laws took this principal that we all intuitively acknowledge and decided that there should be no action at all for one who lost a child. In other words, even if your child’s death were caused by the careless and negligent acts of another, the law determined that it would not provide any compensation for the loss of life.
The common law is that law which develops outside of statutes and rules passed by a legislature. The common law developed from the decisions of judges and courts who decide controversies between people. The common law recognized from ancient times the concept of a tort – a wrong committed by one person against another, usually involving careless or negligent conduct. Negligence has always involved conduct (acts or omissions) that fall below a generally-accepted level of expected conduct for average and reasonable people. A court might ask: Would a reasonable and prudent person have acted in this way? If the answer was “no,” then the person would likely be found to have been negligent – guilty of a tort and liable to answer to the offended person in monetary damages.
The common law in the United States, and in Indiana, developed in such a way that there was no liability for killing another. (Of course, criminal law may provide penalties but those are beyond the scope of this article.) While common law recognized fairly early on that one should be held liable for harming another person negligently, that liability did not survive the person’s death. This lead to the contradictory result that if I negligently caused you to fall and break your leg, I owed you for your medical bills, and perhaps for pain and suffering. But if, as a result of my negligence you fell, hit your head and died, I owed you nothing because your claim did not survive your death.
In 1852, the Indiana legislature for the first time authorized an action for wrongful death, following the adoption of the Indiana Constitution the year before. That law became the precursor to a later statute codified in the Indiana Code providing a remedy for wrongful death that eventually was applied to permit a parent to bring an action based upon the lost opportunity for the parent-child relationship to continue for the life of the parent. However, in the early days, this was interpreted to mean only that the parent could recover pecuniary loss. In other words, the parent could seek to recover the value of lost services that would have been provided by the child during the child’s youth, until they reached the age of majority. Remember that for over one hundred years, Indiana (and most of the United States) was an agrarian society that depended upon family farms – and those family farms depended upon the contribution of children to make those farms run and make a profit. So the loss of a child’s services was deemed to be important and worthy of redress if those services were lost due to the child’s death, assuming that death resulted from the negligence of another.
It was not until 1987 that the Indiana Legislature saw fit to allow a parent who lost a child to seek a recovery of damages for the loss of love and companionship – the kind of loss that, by its nature, is difficult to put a monetary value on. In fact, in this writer’s opinion, it was the belief that putting a value on a life was simply too difficult that delayed this area of the law from developing for over a century. But today, and since the late 1980’s, our lawmakers have determined, essentially: “to heck with the difficulties – the loss of the love of a child is worth something and not nothing – so let’s trust juries to do the right thing.”
Interestingly, it was the Indiana Supreme Court who brought attention to this seeming vacuum in the law of wrongful death. In a decision in 1987 (Miller v. Mayberry, 506 N.E.2d 7 (Ind. 1987), the justices wrote an opinion calling the Legislature to task for failing to address this issue. Trial courts and appellate courts had been noting for years that juries and judges had to work to avoid awarding non-pecuniary losses to survivors of those negligently killed. Often an award would be deemed “too large” and it was assumed that passion or sympathy had resulted in the damage awards being inflated to account, in part, for the loss of love and affection – and not just for loss of the child’s services. Such awards were not permitted under the contemporary laws at the time.
Finally, enough was enough, and the Legislature eventually passed the Indiana Child Wrongful Death Act, which now included a right to recover damages for loss of a child’s love and affection. Moreover, the damages available for such a loss are calculated over a longer period of time than mere pecuniary losses. When awarding damages for the loss of a child’s services, those damages end when
- the child turns twenty years old;
- The child turns twenty-three years old if enrolled in college or vocational education; and,
- The date of the death of the child’s last surviving parent;
Whichever occurs first.
On the other hand, damages are available for the loss of love and affection for the period of time from the date of the child’s death until the date of the death of the child’s last surviving parent. One can readily see that this latter time period can be decades long, whereas the time period for pecuniary losses is strictly limited.
While it remains difficult, and frankly nearly impossible, to place a value on the loss of a child’s love and affection, at least now our courts trust our juries to do the right thing – to carefully and thoughtfully consider the loss and what it means to the parents – and in that way at least provide some relief, where any relief will forever and always seem somehow inadequate.
What is the value of a child’s life? Thankfully, most of us will never have to even ask that question, let alone try to answer it. But the law in Indiana has evolved to the point where parents who suffered this unimaginable loss can at least seek some relief under the law. And that is a very good thing.