Legal Memorandum: Damages in Survival of Claims in NJ

Issue: What is the measure of damages for conscious pain and suffering in survivorship actions in New Jersey?

N.J. Stat. Ann. § 2A:15-3 (“In those actions based upon the wrongful act, neglect, or default of another, where death resulted from injuries for which the deceased would have had a cause of action if he had lived, the executor or administrator may recover all reasonable funeral and burial expenses in addition to damages accrued during the lifetime of the deceased.”)

Jablonowska v. Suther, 390 N.J. Super. 395, 915 A.2d 617, 621, 622-23 (App. Div. 2007) (decedent, a great grandmother who immigrated from Poland, suffered blunt-force trauma, multiple rib and vertebrae fractures, and “partial transaction of the aorta” in motor-vehicle accident, but no evidence she lost consciousness; evidence tended to show blood quickly accumulated in decedent’s chest and caused lung to collapse, preventing decedent from breathing and that accumulation of blood in chest would cause pain; decedent probably went into shock as well; damages awarded for pain and suffering—$350,000—and wrongful death—$200,000; appellate court concluded awards were not excessive), rev’d on other grounds, 195 N.J. 91, 948 A.2d 610 (2008) (opinion reverses lower court’s dismissal of driver/daughter’s emotional-distress claim; court noted that decedent died within minutes of “exsanguination caused by the transected thoracic aorta,” see id. at 612)

Clark v. Univ. Hosp.–UMDNJ, 390 N.J. Super. 108, 914 A.2d 838, 842-44 (App. Div. 2006) (medical malpractice action in which jury awarded $2 million for decedent’s pain and suffering and $1 million for wrongful death; decedent, married but age not […]