§78.8 Reduction for Personal Maintenance Expenses

The Case : Wallace v. Couch, 642 S.W.2d 141 (Tenn. 1982).

The Basic Facts: Father of deceased motorist brought a wrongful death action against the defendant motorist. Issue is whether or not a jury may deduct future living expenses from the verdict rendered in the plaintiff's favor.

The Bottom Line:

• "This is a wrongful death case in which the issue is whether the trial judge erred in giving the jury the following instruction:

  You are charged that when determining the amount of damages based upon life expectancy and earning capacity there should be a deduction of the deceased's probable living expenses had the deceased lived. These living expenses are those that under the standard of living followed by the deceased would have been reasonably necessary for him to incur in order to keep himself in such a condition of health and well being that he could maintain his capacity to earn money.

  The jury returned judgment for plaintiff in the amount of $65,534. On motion for a new trial, the trial judge made an additur to the judgment, in the amount of $9,466, and final judgment was entered in plaintiff's favor in the amount of $75,000." 642 S.W.2d at 141.
• "Capsulated, plaintiff-appellant's contention is that the only elements for the jury's consideration in a case like this, where death is instantaneous, are those set out in Davidson Benedict Co. v. Severson, [72 S.W. 967, 977 (Tenn. 1902)], as follows:

  his [the deceased's] expectancy of life, his age, condition of health and strength [citations omitted], capacity for labor, and for earning money through skill in any art, trade, profession, occupation or business [citations omitted], and his personal habits as to sobriety and industry [citations omitted]; all modified, however, by the fact that the expectation of life is at most only a probability, based upon experience, and also by the fact that the earnings of the same individual are not always uniform [citations omitted]."

  Id . at 142.
• "The fault in this argument is that Davidson Benedict did not consider the question of deducting probable living expenses nor was the question considered in any of the other cases cited in connection with this argument. Apparently it was not brought to the attention of the Court by the parties and so went undecided and uncommented on." Id.
• "As an award for death to the beneficiaries, without a reduction of the deceased's living expenses, would include an amount which the beneficiaries could not possibly receive, the overwhelming majority rule has evolved as stated in [76 A.L.R.3d 125 (1977)], as follows:

  Once it has been held that damages for a decedent's lost future earnings can be recovered in a survival action, the next question is how such damages are to be measured. The current position in all of the jurisdictions in which this question has been considered is that the recovery for a decedent's lost future earnings is not to be measured by the decedent's gross earnings, but by his net earnings, which consist of gross earnings minus personal maintenance expenses.

  Id. at 131." Id. at 143.
• "As we have noticed, in Calfee v. O'Neal Steel, Inc., supra, the Court of Appeals said that an instruction along this line would be proper in a case where the subject has been dealt with as an issue and evidence directed toward it. In support of that statement that Court cited [22 Am. Jur. 2d Death § 153 (1965)], which we adopt to this extent:

  Consideration of the decedent's living expenses seems clearly proper in determining the pecuniary loss suffered by the beneficiary as a result of his wrongful death. And consideration of these expenses has also been held to be proper in an action under a statute authorizing a recovery for the injury to the person and the 'estate' of the wrongfully killed person.
  
  In estimating damages, the deduction of the decedent's living expenses, had he lived, should extend to those personal expenses which, under the standard of living followed by him, would have been reasonably necessary for him to incur in order to keep himself in such a condition of health and well-being that he could maintain his capacity to enjoy life's activities, including the capacity to earn money."

  Id .
• "In a wrongful death case, where there is evidence as to life expectancy, health and habits, present living conditions and standards, all bearing on the manner and nature of decedent's present scale of living, it is not unreasonable to permit a jury to use this information in projecting future living expenses in order to reach a verdict. It is not inevitable that decedent would have lived to join the work force, nor that he would have enjoyed health enough to join the work force, nor that he would have entertained the attitude to join the work force. However, it was inevitable that, if the decedent had lived and worked and earned an income, he would have had living expenses. This puts it within the category of those matters of which jurors may to some degree rely on their everyday experience and knowledge, especially when this is bolstered by such evidence as if found in this case." Id. at 144.

Other Sources of Note: Reed v. PST Vans , Inc, 156 F.3d 1231 (6th Cir. 1998) (court properly allowed defendant to introduce evidence of credit card debt as evidence of decedent's "habits," "present living conditions" and "scale of living"); Thurmon v. Sellers, 62 S.W.3d 145 (Tenn. Ct. App. 2001) (recommending use of an expert in child-death cases and that deduction should be made for the cost of raising the child).