By Joshua Michael Robles | 33 U. ARK. LITTLE ROCK L. REV. 299 (2010).
Most wrongful-death statutes create new causes of action that survivors may use to recover damages for personal losses sustained as a result of a decedent’s death. Survival statutes, on the other hand, limit causes of action to a victim’s claims that arose before his or her death. A survival statute merely permits recovery for those damages that a decedent would have had had he or she lived. Hedonic damages comprise a subset of non-economic damages. They compensate plaintiffs for intangible losses that are not derived from readily calculable pecuniary amounts. They exist to compensate injured parties for their loss of life or less of enjoyment of life’s pleasures. Hedonic theory conceptualizes life’s worth as intrinsically and objectively valuable. In recent decades, American courts have seen an increase in the size and availability of both non-economic and hedonic-damage awards.
In 2001, the Arkansas General Assembly amended Arkansas’s survival statute by adding language that permits an estate or a survivor to recover a decedent’s loss-of-life damages as an “independent element of damages.” The Arkansas Supreme Court has held that loss-of-life damages compensate “for the loss of the value that the decedent would have placed on his or her own life.” The author asserts that the Arkansas loss-of-life statute has two fatal flaws. First, the author asserts that because there is no true connection between a survivor’s claims and a loss-of life injury, the statute cannot be legally justified based on the historical purpose behind survival statutes which was to maintain those claims that a decedent would have been entitled to had he or she lived. The author suggests the solution to this problem should be to move the 2001 amendment language to the text of Arkansas’s wrongful-death statute.
Next, the author asserts that Arkansas’s loss-of-life jurisprudence infringes on defendants’ due process rights because of the difficulty in determining the value that an individual “would have placed on his or her own life.” The lack of guidance on this issue leaves Arkansas jurors with too much discretion and may lead to an arbitrary deprivation of property. The author further recommends that revisions to the statute should be made to impose safeguards in keeping with limitations placed on punitive damages by the United States Supreme Court. The recommended safeguards are (1) informing jurors of a range of non-economic awards given in factually similar cases, and (1) a two-tiered standard of appellate review.