I. Introduction
Assessing non-economic damages in negligence cases can be difficult, which is especially true for loss of society and companionship claims in wrongful death cases. While “loss of society and companionship” is a simple phrase, its definition is nebulous in the case law, and is best defined in terms of what it is not. This article seeks to give the definition a more robust shape and outlines the contours of the doctrine as best as possible.
Of course, nothing in this article should be construed as legal advice. Each situation is different and unique and requires a thorough evaluation of specific facts. For example, situations involving the death of the parent of a minor child implicate additional statutory schemes, and as such should be treated with care. This article’s purpose is much narrower, in that it is solely focused on the definition of “loss of society and companionship” in wrongful death cases.
II. Statutory Guidelines on Wrongful Death Damages
The starting point to evaluate damages in wrongful death cases begins by reading Wis. Stat. §§ 895.03 and 895.04. The Wisconsin Supreme Court has considered these sections to be “inextricably intertwined” and therefore must be read together.[1] Interestingly, these two Sections are some of the oldest statutes in Wisconsin, having been enacted in 1857.[2] Together, they codify the cause of action for wrongful death.[3] Wis. Stat. § 895.03 defines the cause of action for death by wrongful act in Wisconsin. Section 895.04 details who may be a plaintiff in a wrongful death action, and what specific damages they may recover. In a wrongful death action, the plaintiff is not seeking recovery for the injuries suffered by the deceased but is seeking recovery for the loss sustained by themselves as a beneficiary or relative of the deceased.[4] Notably, a wrongful death claim is not a separate cause of action but is an additional element of damages recoverable in the cause of action for wrongful death.[5]
Subsection (4) of Wis. Stat. § 895.04 limits how much a party can recover in a wrongful death action.[6] Additional damages for post-death “loss of society and companionship” are capped at $500,000 per occurrence in the case of a deceased minor, and $350,000 per occurrence of a deceased adult. The Wisconsin Supreme Court has noted that the statutory cap on post-death damages cannot be waived by counsel.[7]
In terms of who can bring an action for loss of society and companionship in a wrongful death action, the statute generally says that an action may be brought by “the personal representative of the deceased person or by the person to whom the amount recovered belongs.”[8] To determine “the person to whom the amount recovered belongs” requires cross-reference to Wis. Stat. § 895.04(4). There, it notes that damages may be claimed only by the “spouse, children or parents of the deceased, or to the siblings of the deceased, if the siblings were minors at the time of the death.”[9]
III. Wisconsin Civil Jury Instructions 1895 and 1897
Wisconsin Civil Jury Instructions 1895 and 1897 are the model instructions for “loss of society and companionship.”[10] Jury Instruction 1895 relates to the death of a minor child, while 1897 relates to the death of a parent. Both are essentially the same instruction with respect to defining “loss of society and companionship.” Both state that society and companionship include “the love, affection, care, protection, [and] guidance” the surviving party would have received from the deceased.
Notably, the damage cap that is described by Wis Stat. § 895.04(4) only relates to the loss of society and companionship that occurs due to the death of the deceased.[11] Pre-death loss of society and companionship damages are otherwise uncapped by statute.[12] Thus, care should be taken when evaluating cases where a party claims loss of society and companionship. Defendants should be aware that the claimed damages for the period of time when the injured party was still living are not subject to the statutory cap that post-death loss of society and companionship damages are. To be clear, a plaintiff can bring both a pre-death and post-death claim for loss of society and companionship. Only the loss that occurs due to death is capped by statute.[13]
IV. Interpretation of Loss of Society and Companionship Damages in Caselaw
Both Jury Instruction 1895 and 1897, state that society and companionship does not include “loss of monetary support or the grief and mental suffering caused by the parent’s death.” Unsurprisingly case law is in conformity with this instruction. In Pierce v. Physicians Ins. Co. of Wisconsin, the plaintiff’s child was stillborn due to a cascade of alleged medical errors.[14] The Wisconsin Supreme Court noted that the “wrongful death claim does not and cannot compensate the mother for the pain and anguish that she suffered associated with the stillbirth of her child[.]”[15] The Wisconsin Supreme Court approvingly cited to the 1995 version of Civil Jury Instruction 1895, which states that society and companionship does not include “grief and mental suffering.”[16]
In Olson v. Berg, the parents of a deceased child sought to introduce evidence of the mental anguish they experienced due to the death of their son.[17] The trial court only allowed them to introduce evidence that the mother persistently cried and did not want to leave the house, but denied her request to introduce evidence that she suffered from clinical depression, was prescribed medication, and prohibited argument attempting to make a causal connection between the accident and her job change.[18]
The court of appeals upheld the exclusion of the evidence in Olson, finding that emotional distress, (defined as “… mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea.”) is only compensable under either an intentional infliction of emotional distress or negligent infliction of emotional distress theory.[19]
The court of appeals noted that Wisconsin courts have been reluctant to compensate plaintiffs for emotional harm.[20] It is reversable error when juries are not instructed to exclude damages for sorrow and grief.[21] Awards have been reduced when the jury includes compensation for grief.[22]
When a minor dies, the unique parent-child relationship plays an important part in determining whether loss of society and companionship exists. In Estate of Hegarty v. Beauchaine, a 12-year-old child was misdiagnosed at a hospital in Milwaukee and developed severe complications which ultimately caused the child to undergo 89 surgeries before her death at 17.[23] There was a laundry list of issues on appeal, but one involved an analysis of “society and companionship.”[24] Specifically, one of the defendants challenged the award for loss of society and companionship because they believed the jury considered improper factors.[25] Both the trial court and court of appeals disagreed.[26] Noting that while the child was alive, she never lived a normal life, being addicted to morphine, and unable to eat solid foods, the jury properly concluded that the ”love, affection, care, protection, and guidance” the child would have given to her parents was drastically limited due to her condition.[27]
An interesting unpublished Wisconsin Court of Appeals decision suggests that if the parent-child relationship is closer to an “adult friendship,” then no recovery is possible under a “society and companionship” theory. In King v. Pietz, the court of appeals was tasked with reviewing a wrongful death lawsuit brought by an adult child for the death of her father.[28] At trial, evidence was presented that the daughter’s relationship with her father did not begin until after she reached adulthood, as her father was largely absent from her life.[29] Her father and mother had ended their relationship when she was only two years old and she lived with her mother exclusively during childhood.[30] The plaintiff saw her father only once when she was nine years old and only for a single day when they got pizza together.[31] The plaintiff reached out to her father when she was 20 and they communicated every few months thereafter.[32]
The jury awarded nothing for her loss of society and companionship claim.[33] She appealed this verdict on the theory that the jury’s finding of zero damages was unsupported by the evidence.[34] She requested a new trial which the trial court denied.[35] The court of appeals affirmed, noting that the relationship lacked a degree of “love, affection, care, and protection” one would expect to have from a parent-child relationship.[36] The court of appeals found that it was plausible for the jury to find there was no parent-child relationship between the deceased and the plaintiff.[37] Rather, the plaintiff and the deceased relationship was one of adult friends not of parent and child.[38]
The emphasis on the uniqueness of the parent-child relationship, as noted in Hegarty, was extended to a relationship in which the parent had perished in King. The caselaw seems to suggest that the loss of society and companionship inquiry is a narrow one and is predicated on the unique relationship between parent and child. This appears to be a high bar if an adult friendship between child and parent does not fulfil the requirements of “loss of society and companionship” because the foundation of that relationship it is not based on “love, affection, care, protection, and guidance” that a parent would give a child during their upbringing. To be clear, adult children can recover under a theory of loss of society and companionship, but the factual underpinnings of a claim must be examined closely. This has implications when children and parents are estranged. For example, if a couple were to divorce, and one parent is largely absent from the child’s life while the other parent maintains an active role in the child’s life then a jury ought to consider the differences in the parent-child relationship when determining damages.
V. Conclusion
Determining “loss of society and companionship” is a fact intensive inquiry. The more information available about the contours of the child’s or parents’ relationship the better. Applicable case law seems to place the relationships on a sort of sliding scale, where the more loving the relationship, the greater an award is due. Essentially, the more “normal” a parent-child relationship is the greater the potential award.
Author Biography:
Robert A. Maniak is an associate at Everson, Whitney, Everson, and Brehm S.C. He focuses his practice on civil litigation, insurance defense, personal injury defense, and criminal defense. Prior to joining the Everson Law Firm, Robert served in the United States Marine Corps before attending Marquette University Law School. In law school, Robert performed 120 hours of Pro Bono work for low-income clients in the Milwaukee area and received the Jon Allen Pace Setter award in 2020 and 2021 from the Milwaukee Justice Center as recognition for his volunteer work. Robert also served as the managing editor of the Marquette Benefits and Social Welfare Law Review, where he was in charge of editing the work of fellow students. He also received a CALI award for having the highest score in one of his law school classes. Robert held internships at the Wisconsin Court of Appeals, where he researched and analyzed party briefings. He also worked with the City of Muskego to prosecute municipal violations and perform research.
[1] Waranka v. Wadena Ins. Co., 2014 WI 28, ¶ 20, 353 Wis. 2d 619, 847 N.W.2d 324.
[2] Id.
[3] Id.
[4] Day v. Allstate Indem. Co., 2011 WI 24, ¶ 61, 332 Wis. 2d 571, 798 N.W.2d 199.
[5] Nichols v. U.S. Fid. & Guar. Co., 13 Wis. 2d 491, 497, 109 N.W.2d 131 (1961).
[6] Importantly Wis. JI Civil 1880 misstates the law in the comments following the instruction, by stating that loss of society and companionship is limited to “spouse, unemancipated or dependent children, or parents of the deceased.” This is incorrect as Pierce v. American Family Insurance Co., 2007 WI APP 152, 303 Wis. 2d 726, 736 N.W.2d 247, allows for adult children to recover for loss of society and companionship.
[7] Austin v. Ford Motor Co., 86 Wis. 2d 628, 647, 273 N.W.2d 233 (1979).
[8] Wis. Stat. § 895.04(1).
[9] Wis. Stat. § 895.04(4).
[10] Both instructions were most recently updated in 2019.
[11] Estate of Hegarty v. Beauchaine, 2006 WI App 248, 297 Wis. 2d 70, 727 N.W.2d 857.
[12] Id. ¶ 138.
[13] Id.
[14] Pierce v. Physicians Ins. Co. of Wisconsin, 2005 WI 14, 278 Wis. 2d 82, 692 N.W.2d 558.
[15] Id. ¶ 23.
[16] Id.
[17] Olson v. Berg, 2001 WI App 121, 244 Wis. 2d 287, 628 N.W.2d 437 (unpublished decision).
[18] Id. ¶ 10 n.5.
[19] Id. ¶ 8 (quoting Alsteen v. Gehl, 21 Wis. 2d 349, 356–57, 124 N.W.2d 312 (1963) and Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 660, 517 N.W.2d 432 (1994)).
[20] See Bowen, 183 Wis. 2d at 638.
[21] Prange v. Rognstad, 205 Wis. 62, 65, 236 N.W. 650 (1931).
[22] Crossman v. Gipp, 17 Wis. 2d 54, 60, 115 N.W. 547 (1962).
[23] Hegarty, 297 Wis. 2d 70.
[24] Id. ¶ 6.
[25] Id. ¶ 142.
[26] Id. ¶ 148.
[27] Id. ¶ 144.
[28] King v. Pietz, 2013 WI App 41, 346 Wis. 2d 731, 828 N.W.2d 593 (unpublished decision).
[29] Id. ¶¶ 8-9.
[30] Id. ¶ 8.
[31] Id.
[32] Id. ¶ 9.
[33] Id. ¶ 10.
[34] Id. ¶ 6.
[35] Id. ¶ 4.
[36] Id.
[37] Id. ¶ 10
[38] Id.
