Brief Fact Summary.
Nelson was driving his motorcycle with his friend on the back when they notice Defendant was following them in Defendant’s vehicle. Nelson tried to lose Defendant, but Defendant simply sped up more and followed the motorcycle closer. At one point, it appeared that Defendant was slowly down, but Defendant against sped up and struck the motorcycle. Due to the impact of the strike, the two vehicles were locked until the motorcycle hit a light post and fell beneath Defendant’s vehicle. Nelson died instantly. Nelson’s mother, Plaintiff, brought a wrongful death and survival action on behalf of Nelson’s estate. The trial judge sustained Defendant’s motion in limine to preclude Plaintiff from offering evidence of pain and suffering. Nonetheless, the jury held in Plaintiff’s favor, but Plaintiff appealed the trial court’s finding on the motion in limine.
Synopsis of Rule of Law.
Pursuant to Nebraska law, one may not recover for pain and suffering in a wrongful-death suit, but may recover pain and suffering in a survival action.
Robert James Nelson, a seventeen year old, was driving a motorcycle while Kevin Coffin was on the back. At that time, Paul Dolan, Defendant, began following them in his vehicle. Nelson tried to lose Defendant, but Defendant simply sped up more and followed the motorcycle closer. There was a moment in which Defendant merely one or two feet behind the motorcycle. Once Coffin slapped the hood of Defendant’s vehicle, Defendant began to slow down. Nonetheless, the Defendant then sped up and struck the motorcycle, causing the two vehicles to become locked upon impact. The parties moved in tandem for about five seconds until the motorcycle hit a light post and fell beneath Defendant’s car. Nelson was killed instantly. His mother, Phyllis Nelson, Plaintiff, brought a wrongful-death action on behalf of Nelson’s next of kin and a separate survival action on behalf of Nelson’s estate. Before trial, the judge sustained Defendant’s motion in limine to preclude Plaintiff from offering into evidence: (1) the mental anguish suffered by Nelson in the moments before his death and (2) the mental pain and suffering sustained by Phyllis on account of Robert’s death. Defendant admitted that his negligent conduct caused Robert’s death. Thereafter, a jury awarded Plaintiff $37,968.26. Plaintiff appealed the trial court’s preclusion of evidence of pain and suffering.
Whether, pursuant to Nebraska law, one may not recover for pain and suffering in a wrongful-death suit, but may recover pain and suffering in a survival action.
Yes, pursuant to Nebraska law, one may not recover for pain and suffering in a wrongful-death suit, but may recover pain and suffering in a survival action.
It is fundamental that the plaintiff's burden to prove the nature and amount of damages cannot be sustained by evidence which is speculative and conjectural.View Full Point of Law
Plaintiff may recover for Nelson’s pre-death mental anguish under her survival action , but may not recover for pain and suffering under her survival claim. Under Nebraska’s wrongful-death statute, a decedent’s next of kin may only recover “pecuniary loss” endured on account of the decedent’s death. This court has interpreted this statute to notallow recovery for bereavement or pain and suffering because permitting such damages would contravene legislative intent. Consequently, Plaintiff’s wrongful-death suit does not allow for any the pain and suffering damages. Additionally, the statute does not allow pain and suffering damages for the pain and suffering of Nelson because the statute clearly limits recovery to losses suffered only by the decedent’s family, not the decedent. Nonetheless, Plaintiff is entitled to recover these damages in the survival action because that claim allows Nelson’s estate to recover damages that Robert himself would have been entitled to seek if he had not died.In this case, the court concludes that Nebraska should also allow for recovery in survival actions for the decedent’s conscious pain and suffering in the moments in anticipation of impending death. Nebraska law already allows such recovery for the mental anguish of a decedent between the time of injury and resulting death. Hence, it reasonably follows that such recovery should be allowed for pre-impact mental anguish preceding imminent death. Thus, since a jury could have found that Nelson suffered fear and apprehension in the moments before his death, the trial court improperly decided to preclude such evidence. Therefore, the judgment is affirmed as to Plaintiff’s wrongful-death suit and reversed and remanded for a new trial as to the survival action.