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Articles Posted in Damages

There has been a major change in the law of damages in Kentucky for children (or others) who die as a result of negligence, and the change doesn’t help the injured person.

In Kentucky wrongful death cases, the estate of the person who died may recover damages for funeral expenses and the destruction of the dead person’s ability to earn money. W. L. Harper Co. v. Slusher, 469 S.W.2d 955 (Ky. 1971). The estate may also recover damages that the deceased person incurred before he or she died, such as pain and suffering and medical expenses. KRS 411.133. In many cases, though, especially when a death occurred suddenly, the bulk of the damages available to an estate is the loss of the ability to earn money.

Some juries have been hesitant to award damages for destruction of earning capacity when a child dies before he or she has started working. Until last Thursday, the law in Kentucky was that unless the child had some pre-existing condition that would have prevented him or her from earning money as an adult, the jury was required to award damages for destruction of earning power. In other words, as long as the child was a relatively healthy person before he or she was injured, if a jury determined a defendant was negligent and caused the child’s death but awarded $0 for destruction of earning capacity, it was an inconsistent verdict. Either the court had to order the jury to continue deliberations and determine a fair award, or the plaintiff was entitled to a new trial on the issue of damages only. That is, once liability was established in the first trial, all the jury could do in the second trial was award additional damages for destruction of earning capacity.

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