Hedonic Damages for Wrongful Death: Are Tortfeasors Getting Away with Murder?
O'Connor, Erin O'Hara, 1965-
This note argues that to deter negligent behavior adequately, tortfeasors should be held liable for what may be the most substantial cost they impose on accident victims-"hedonic damages," or the loss of the value of life that results from premature death. Part I argues that courts should assess hedonic damages against tortfeasors to provide enough incentives for the tortfeasor to take the proper amount of precautions to prevent future accidents and losses. Part II argues that courts can closely approximate the appropriate measure of hedonic damages by using economic empirical studies that seek to ascertain the value of a life through a willingness to pay method of valuation. This method computes the value of a human life by observing what that individual would be willing to pay to avoid marginal increases in his risk of death. To minimize litigation costs while still creating efficient incentives, Part III proposes that the amount of a hedonic damages award should be based on the average value of the life of the population put at risk by the tortfeasor's activity. Part IV then addresses some of the traditional arguments against imposing hedonic damages upon tortfeasors. Finally, Part V explores the implications of the proposed damages awards for various subgroups of our population. This note concludes that the proposed method of calculation would not only improve efficiency, but would also satisfy a fairness or equality criterion. Because it reduces the present disparity in incomebased damages awards, it can reduce incentives for tortfeasors to impose a higher risk of death upon groups of individuals with lower future incomes.