Folz v. State

MONTGOMERY, Justice (specially concurring).

I join in the Court’s opinion dealing with the single-occurrence and emotional-distress issues. In addition, I concur in the Court’s reversal of the court of appeals on the compensatory-damage instruction issue because, as intimated by the majority, the defendants have not shown that they were prejudiced by the trial court’s instructions —that, in other words, the jury included, as part of the damage awards to the petitioners for their respective decedents’ wrongful deaths, amounts representing punitive or exemplary damages. I disagree, however, that the instruction given in this case, and the Uniform Jury Instruction on wrongful death generally, represent a correct statement of the law. In an appropriate case I would vote to reverse a damage verdict based on that instruction.

UJI 13-1830 instructs the jury that in fixing the amount of damages which it deems fair and just it shall include compensation for the following elements of damages proved by the plaintiff: (1) reasonable expenses of necessary medical care and treatment (including funeral and burial expenses);. (2) pain and suffering experienced by the decedent between the time of injury and death; (3) the monetary worth the decedent’s life; and (4) the mitigating or aggravating circumstances attending the (defendant’s) wrongful act, neglect or default. This is an incorrect statement of the law. The plaintiff in a wrongful death case is entitled to compensation for the losses resulting from the defendant’s acts or omissions; the plaintiff is not entitled to compensation for any mitigating or aggravating circumstances attending those acts or omissions, unless such “compensation” is awarded by way of punitive or exemplary damages. The whole theory of our tort law is to compensate the victim for his or her losses, not (unless punitive damages are awarded) to punish the tortfeasor. See Restatement (Second) of Torts § 903 (1977) (damages represent compensation for harm sustained by victim); cf. Fredenburgh v. Allied Van Lines, 79 N.M. 593, 596 , 446 P.2d 868, 871 (1968) (measure of compensatory damages is that which fully and fairly compensates for injuries received). This is, or should be, as true for wrongful death actions as it is for other actions founded on negligence, with respect to all of which (not just “sui generis” claims for wrongful death) our tort law has the dual objectives of compensating victims and deterring negligence. See Restatement (Second) of Torts, supra, § 901; W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on Torts § 4, at 25 (5th ed. 1984). When compensatory damages are assessed these objectives are achieved by measuring the extent of the victim’s losses and imposing liability on the tortfeasor for those losses, not by assessing the culpability of the tortfeasor’s conduct and adjusting damages up or down depending upon the degree of the tortfeasor’s fault.

The purpose of punitive damages, on the other hand, is only to punish the wrongdoer. Montoya v. Moore, 77 N.M. 326, 330-31 , 422 P.2d 363, 366 (1967); cf. Fredenburgh, 79 N.M. at 598 , 446 P.2d at 873 . This purpose is achieved, in an appropriate case (when there has been the requisite proof of opprobrious conduct — malicious or willful, wanton, etc., behavior — and when punitive damages may lawfully be recovered from the tortfeasor), by making it clear that in addition to the sum necessary to compensate the victim for the losses resulting from the tortfeasor’s conduct, a separate amount is being assessed by way of punishment and as an example to deter others from such conduct. When there is an appropriate case, the trial judge must determine whether the jury should be permitted to award punitive damages and, if so, he or she must instruct the jury under UJI 13-1827. .

In fixing an award of compensatory damages, it makes no sense for the jury to consider the “mitigating circumstances” of the tortfeasor’s conduct. The jury’s task is to determine the amount of money necessary to make the plaintiff whole (insofar as that can be done by an award of money) and to fix the compensatory damages accordingly. It does not matter, under our scheme of tort law, that the defendant’s conduct is serious or trivial; if the plaintiff has been harmed and the defendant is legally responsible, at least in part, for that harm, the plaintiff is entitled to recover his or her damages. (Of course, if the defendant’s conduct is not the sole cause of the harm, his or her liability may be reduced under principles of comparative fault.) The same is true of “aggravating circumstances” attending the tortfeasor’s conduct. The plaintiff is entitled to, and required to accept, a determination of the amount of his or her loss; and the aggravation, or lack of it, attending the defendant’s conduct is relevant, if at all, only in determining comparative fault and in assessing punitive damages if the trial judge so permits.

I therefore believe UJI 13-1830 should be revised to delete the defendant’s “mitigating or aggravating circumstances” ■ as an element of the damages for which a wrongful-death plaintiff is entitled to compensation. Nor should the jury be allowed to “consider” such circumstances in fixing the otherwise proper elements of compensatory damages, as it was in this case. The circumstances surrounding the defendant’s conduct, whether mitigating or aggravating, have no place in fixing the amount of the plaintiff’s loss.

Our wrongful death act, Section 41-2-3, does not require a different conclusion. Since 1891, the statute has authorized both compensatory and exemplary damages in a wrongful death case. (The legislature made an exception, for wrongful death claims against the state, when it passed the Tort Claims Act and decreed in Section 41-4-19(B) that there could be no exemplary or punitive damages against a governmental entity.) In Cerrillos Coal R.R. v. Deserant, 9 N.M. 49 , 49 P. 807 (1897), this Court construed the act as follows:

Neither does the question of mitigating or aggravating circumstances have any weight so far as the damages denominated by our statute “compensatory” are concerned. If there should be a recovery full compensation should be awarded, mitigating or aggravating circumstances having effect only on the question of allowing or not allowing exemplary damages in addition to full compensation.

Our statute appears tó mean, that if there are “aggravating circumstances attending the wrongful act, neglect or default” for which the defendant is responsible, then exemplary damages should be added to those which are merely compensatory.

9 N.M. at 68 , 49 P. at 813. Contrary to the majority’s reading of the subsequent case law concerning the “mitigating or aggravating circumstances” language in the statute, nothing establishes that this early interpretation of the act was incorrect.

In Kilkenny v. Kenney, the only reference to the statutory phrase in question was the following:

[W]e are of the opinion that the provision in § [41-2-3], which allows a consideration of the mitigating or aggravating circumstances attending the wrongful act, when considered with the language contained in § [41-2-1], warrants the allowance to the administrator of the decedent’s damages prior to death, provided they are not the same as those for which the husband, individually, has a right of recovery.

68 N.M. at 270, 361 P.2d at 152. The only issue in Kilkenny addressed in this connection, then, was whether or not damages sustained by the decedent between the date of injury and the date of death were recoverable. The Court gave no indication of why or how the statutory phrase “mitigating or aggravating circumstances” bore any relationship to this question; the reference to that phrase in the opinion seems to have been dictum of the purest sort.

Similarly, when the court of appeals said in Stang v. Hertz Corp., 81 N.M. at 78, 463 P.2d at 54, that Kilkenny and Cerrillos cannot be reconciled in the effect given to the statutory phrase, the court was referring to a conflict that does not exist. Kilkenny had indeed held that damages prior to death might be recovered and this did indeed conflict with the holding in Cerrillos that damages for the decedent’s pain and suffering could not be recovered. To that extent Kilkenny overruled Cerrillos sub silentio, and that disavowal was made express by this Court on appeal in Stang v. Hertz Corp., 81 N.M. at 352, 467 P.2d at 18. But in construing the statutory phrase “mitigating or aggravating circumstances” as superfluous if limited to the conditions for awarding punitive damages, the court of appeals in Stang went much further than necessary; its statements on this score are dicta like those in Kilkenny, and they were not approved by this Court (except by very oblique inference) on the appeal in Stang.

This reading of our wrongful death act is consistent with that in Missouri, where the courts have held that an increase in damages by reason of aggravating circumstances is punitive in nature. See Wiseman v. Missouri Pac. R.R., 575 S.W.2d 742 (Mo.App.1978); Williams v. Excavating & Foundation Co., 230 Mo.App. 973 , 93 S.W.2d 123 (1936). As this Court has noted a number of times, our wrongful death act was taken from Missouri, and the views of the Missouri courts are persuasive in interpreting the act. See Langham v. Beech Aircraft Corp., 88 N.M. 516, 520 , 543 P.2d 484, 488 (1975) (citing cases); Cain v. Bowlby, 114 F.2d 519, 523 (10th Cir.), cert. denied, 311 U.S. 710 , 61 S.Ct. 319 , 35 L.Ed. 462 (1940).

I would thus hold, in an appropriate case, that it is error to permit the jury, in effect, to award punitive damages against the state by considering any aggravating circumstances attending the state’s conduct. However, there is no showing that the jury did this in the present case. On the contrary, the instructions the court gave informed the jury with reasonable clarity that it was not to award punitive damages against the state, and there is no indication on this record that the jury nonetheless did so by burying a punitive-damage award in its compensatory-damage determination.

In the first place, the trial court’s compensatory-damage instructions modified UJI 13-1830 by authorizing only indisputably permissible damage elements: (1) reasonable medical and funeral expenses, (2) pain and suffering of the decedent, and (3) the monetary worth the decedent’s life. It is true that the court’s instructions went on, incorrectly in my view, to permit the jury to consider the aggravating or mitigating circumstances attending the conduct which resulted in the decedent’s death. Whether the jury did so or not is purely a matter of conjecture. It was, in any event, instructed that the only allowable elements of damage were those intended to compensate for losses suffered by the decedent or his family. In addition, as the majority opinion notes, the jury was admonished not to award punitive damages against the state. It is presumed that the jury properly followed the court’s instructions. See Ranchers Exploration & Dev. Corp. v. Miles, 102 N.M. 387, 390 , 696 P.2d 475, 478 (1985).

This Court has said that the appellant has the burden of showing he has been prejudiced by an erroneous instruction— that the Court does not correct harmless error. Jewell v. Seidenberg, 82 N.M. 120, 124 , 477 P.2d 296, 300 (1970); see also Johnson v. Nickels, 66 N.M. 181, 183-84 , 344 P.2d 697, 699 (1959) (errors not shown to be prejudicial to a substantial right of complaining party will be disregarded). While this rule might not operate unfailingly in all cases, in this case the defendants are asking us to speculate on the effect of the trial court’s wrongful-death instruction. The evidence at trial included the following amounts for lost earnings: (1) Sylvester Folz, $390,458.00; (2) Steven Folz, $225,-501.00; and (3) Leo Garcia, $263,173.00. The damage awards were, respectively: (1) $206,203.00, (2) $329,107.00, and (3) $500,-000.00. In the case of Sylvester Folz, the award was less than the evidence as to loss of earnings. In the cases of Stéven Folz and Leo Garcia, while the damage awards exceeded the amounts claimed as lost earnings, significant sums could well have been awarded for other components of each decedent’s monetary worth and for the pain and suffering experienced by each, as well as for Steven’s medical expenses. We cannot say from the figures alone that the damage awards exceeded the amounts reasonably allowable as compensation under the court’s instructions; we might speculate just as easily that the jury reduced its determination of compensatory damages on account of mitigating circumstances. In any event, the defendants have not even attempted to carry their burden to show that the awards were excessive or, if they were, that such excessiveness represented punitive damages.

I therefore conclude that reversible error by the trial court has not been shown and that it was error for the court of appeals to reverse on this ground.