Kentucky Supreme Court reverses longstanding law protecting victims of wrongful death

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.

That all changed last Thursday. In a case titled Louisville W Hotel, LLC, et ux. v Charlestine Lindsey, et al., No. 2019-SC-0539-DG, ___ S.W. 3d ___ (Ky. Dec. 16, 2021) the Kentucky Supreme Court called the existing law an “anomaly in our jurisprudence” and overruled it. The Supreme Court held that it is not an inconsistent verdict and there no right to a new trial when a jury determines an otherwise healthy child had no loss of earning capacity and awards $0 for that claim.

This does not mean a child’s estate can no longer recover for lost earning power. If the jury awards it after hearing the evidence, the victim’s beneficiaries still recover those damages. What it does means is that there are no second chances under the new law announced last week. If a jury finds there is negligence but fails to award lost earning capacity – even if there is no evidence supporting that decision – the Plaintiff is stuck with the award and has no further recourse. Thus it becomes even more important that the Plaintiff’s lawyer puts on the most effective possible case for damages. Lost earing capacity can no longer be an after-thought, because there is no longer any safety valve, even if the jury’s verdict is contrary to the evidence.

This decision is not yet final, but will go into effect 30 days after the decision unless any party asks for a rehearing. However, rehearings are rarely sought and even less frequently granted under Kentucky law.

As always, a blog post is not legal advice. If you have a legal question, you should consult with a lawyer experienced in the field in which you need representation.

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