*there is no error in the court's
failure to specifically instruct the
jury on recovering for hedonic
(damages arising solely
from Arden Westcott's loss of the
enjoyment of his life)
*Relying on Nebraska law, the district
court refused to instruct the jury
that Arden Westcott's estate could
be awarded hedonic damages.
The district court concluded that
Nebraska does not allow a separate
instruction on hedonic damages,
relying on Nebraska law which says
that hedonic damages
a distinct category of damages but
are merely a component of pain and
suffering and of disability. See
Anderson v. Nebraska
Dep't of Social Services, 248 Neb.
651, 538 N.W.2d ...
damages are allowed but not in wrongful
Bailey v. Rose Care Center, Div.
of C.A.R.E., Inc., 307 Ark. 14 (1991):
*Hedonic damages are not allowed
in wrongful death actions.
*Likewise, we dismiss the appellant's
final argument that the trial court
erred in omitting provision (c) of
her proffered instruction which allowed
damages for the loss of enjoyment
and the capacity to enjoy
life suffered by John Dowdy. In short,
our law does not recognize damages
of the decedent's
enjoyment of life
death actions. See
Ann. § 16-62-102 (1987); AMI 2215.
PHILLIPS v. SUGRUE, 800 F. Supp.
*Hedonic damages are allowed in
personal injury cases.
This action was instituted
by Kimberly Phillips (plaintiff) against
Father Timothy Sugrue (Father Sugrue)
and Marist Fathers of Washington Province
(Marist Fathers) alleging that between
1976 and 1978, when plaintiff was
"a minor child of tender years
defendant, Father Sugrue, intentionally
took improper sexual liberties with,
and indecently fondled plaintiff against
her will and without her consent."
*Viewing the allegations contained
in plaintiff's complaint in a light
favorable to the plaintiff on defendants'
motion for summary judgment, the Court
is of the view that plaintiff has
suffered severe emotional distress
resulting in great mental suffering,
permanent injury and "hedonic
" stated differently,
unpleasurable states of consciousness.
damages are a part of pain and suffering.
Pouzer v. McGraw, 360 N.W.2d 748
*As a separate and independent element
of damages, the trial court submitted
plaintiff's claim of a diminished
capacity for enjoying life. We seem
never to have considered such a submission.
Swiler v. Baker's Super Market, Inc.,
203 Neb. 183, 277
N.W.2d 697, 700 (1979)
in support of the instruction. In
that case, the Nebraska court found
no error but, recognizing the instruction
might be redundant, stated it did
not recommend the practice.
*Our own opinions have assiduously
guarded against duplicate damage awards.
Inc. v. Teamco, Inc.,
271 N.W.2d 914, 925 (Iowa 1979)
("Duplicate or overlapping damages
are to be avoided"). We recognize
loss of enjoyment of life as a factor
to be considered as a part of future
pain and suffering.
Mabrier v. A.M. Servicing
161 N.W.2d 180, 183 (Iowa 1968);
Holmquist v. Volkswagen of
261 N.W.2d 516, 526 (Iowa Ct. App.
To whatever extent
recovery for such a loss should be
allowed it is already recognized,
, as a factor
in other elements of damages. It would
be plainly duplicative to allow a
separate award for loss of enjoyment
of life. Although we recognize there
is a contrary view, we join the states
which refuse to allow the submission
of loss of enjoyment of life as a
separate element of damages. See
34 A.L.R. 4th 293, 300-04 (1984).
Leonard v. Parrish, 420 N.W.2d
: No separate
jury instruction for hedonic damages
but loss of enjoyment of life may
be considered as a part of general
*The trial court rejected Leonard's
request for a specific instruction
on loss of enjoyment of life for damages
to her senses of smell and taste,
instead submitting that loss as a
general element of damages. The court
also rejected an instruction on Leonard's
future job retraining. This damage
element appears adequately covered
by the special verdict question relating
to her future earning capacity. Since
its general instructions were adequate,
the trial court did not abuse its
broad discretion by limiting Leonard's
proposed jury instructions.
Cruz v. Harris, 1999 Minn. App.
LEXIS 741 (1999)
*Hedonic damages appear to be allowed
as a part of compensatory damages
but in this case the award
was found to be excessive.
*In reviewing a compensatory damage
award, the following factors are relevant:
past and future pain, permanent disability,
life expectancy, ability of plaintiff
to follow his usual occupation, loss
of earning power, the effect on plaintiff's
of the amenities
degree of disfigurement,
and the inflationary trend of the
300 Minn. 436, 440, 220 N.W.2d 478,
*No findings were made regarding past
pain, permanent disability, life expectancy,
ability of respondent to pursue her
of the amenities
inflation. The district court's only
pertinent finding was that respondent
still suffered from a sore shoulder.
Appellant urges that this finding
does not support its conclusion that
respondent is entitled to $ 100,000
*Appropriate action may be taken where
the evidence does not justify the
award of damages. We have stated that
we are reluctant to disturb a verdict
as excessive in a case where the amount
has the approval of the trial court,
but that it does not follow from such
reluctance that we should permit all
verdicts to stand.
Fifer v. Nelson,
295 Minn. 313,
318, 204 N.W.2d 422, 425 (1973).
Here, the findings of fact do not
support the district court's conclusion
that respondent suffered $ 100,000
in compensatory damages. We reverse
the award of compensatory damages.
Polyak v. Reus, Inc., 1990 Minn.
App. LEXIS 815
: Hedonic damages
are a part of general damages. This
case is also interesting b/c expert
testimony on hedonic damages was denied.
However, this case does not really
make it clear that expert testimony
would be disallowed if the factual
circumstances were different.
*Polyak argues that the trial court
erred in failing to include on the
special verdict form and to instruct
on the issue of loss of enjoyment
Minnesota courts have
never recognized loss of enjoyment
as a separate element
of damages. See
Anunti v. Payette,
268 N.W.2d 52, 55 (Minn. 1978);
Leonard v. Parrish, 420 N.W.2d 629,
(Minn. App. 1988).
the standard Minnesota jury instruction
on future bodily and mental harm states
that a jury can compensate a victim
for loss of enjoyment of life
under the term "disability."
4 Minnesota Practice, Civ. JIG 158
(1986). There is no Minnesota authority
for a specially worded instruction
on loss of enjoyment of life
and we decline to impose such a requirement
*Polyak also argues that the trial
court abused its discretion in excluding
the testimony of expert Stanley Smith.
Generally, the exclusion of expert
testimony lies within the sound discretion
of the trial court and its ruling
will not be reversed unless it is
based on an erroneous view of the
law or it constitutes an abuse of
Reinhardt v. Colton,
88, 93 (Minn. 1983).
expert's opinion must be based on
facts sufficient to form an adequate
foundation for the opinion and should
not be speculation. See
Hudson v. Snyder Body, Inc., 326 N.W.2d
149, 155 (Minn. 1982).
*Dr. Smith would have testified about
how to calculate damages for loss
of enjoyment of life.
Polyak's evidence consisted of his
emotional reaction to the shooting
and not loss of enjoyment of life
there was no foundation for Dr. Smith's
Hudson, 328 N.W.2d at 155.
Therefore, the trial court's exclusion
of Smith's testimony was proper.
damages allowed as a part of general
damages but the question of expert
testimony is still undecided.
Schumann v. Missouri Highway and
*Facts: Schumann was driving his
combine on a highway and pulled over
to the defective shoulder
of the road which sunk and sent him
crashing into a ravine injuring him.
The Commission does
not contest the concept that lost
enjoyment of life is a compensable
element of general damages in a personal
injury case. Rather, it contends the
use of an expert witness to calculate
these damages is improper.
*While, as indicated, we do not decide
whether expert testimony on hedonic
is admissible, we observe
that most jurisdictions addressing
the issue have rejected such testimony.
*there was ample evidence to support
the verdict, without regard to Dr.
Ward's testimony on hedonic damages.
Thus, even if admission of Dr. Ward's
testimony was error, it did not materially
affect the merits of the action. Rule
84.13(b). Point denied.
damages are not a category w/n themselves
they fall w/n pain and suffering (i.e.
no hedonic damages)
Anderson v. Nebraska Dept. of Social
Neb. 813 (1998):
*We wrote in Anderson/Couvillon
that "while consideration
of loss of the enjoyment of life may
properly be considered as it relates
to pain and suffering, and to disability,
it is improper to treat it as a separate
category of nonpecuniary damages."
at 664, 538 N.W.2d at
741. Thus, the district court's judgment
in Anderson/Couvillon I.
was reversed because it was predicated
in part on the existence of hedonic
appears that South Dakota allows hedonic
damages and allows them to stand alone
(i.e not as a part of pain and suffering,
etc.) However, hedonic damages not
allowed in PEPL funds.
E.P. v. Riley 1999 SD 163
*The PEPL fund provides "payment
of valid tort claims against all member
public entities of the state and their
officers and employees for all liability
they may incur based upon negligence
in the operation of motor vehicles
or negligence in performing other
acts within an employee's scope of
employment." SDCL 3-22-1. Under
the current statutory scheme, unless
a claim falls within PEPL fund coverage,
the doctrine of sovereign immunity
applies to abrogate that claim.
535 N.W.2d at 900.
*However, the PEPL fund does not cover
"non-economic damages, including,
but not limited to, damages for pain,
suffering, inconvenience, physical
impairment, disfigurement, loss of
society and companionship, and hedonic
quoting The Public Entity Pool for
Liability, Memorandum of Liability
Coverage to the Employees
of the State of South Dakota,
Apr. 4, 1990.
Jurgensen v. Smith, 2000 SD 73
*This case was an appeal by the
for a reduction of the jury's damage
award. The court affirmed the
jury's decision. Mention of loss of
enjoyment of life was made, without
dispute, in the jury instruction
which I include below.
*Instruction 34 (based upon South
Dakota Pattern Jury Instruction Numbers
30-04 and 30-06) includes loss
of enjoyment of life.
*Jury Instruction number thirteen
provided: Your award of actual damages
must be in an amount which will reasonably
and fairly compensate Mike Jurgensen
for all injuries or losses caused
by Ms Smith, whether the loss or harm
could have been anticipated or not,
1) The nature, extent, and duration
of Mike Jurgensen's injury.
2) The disfigurement and disability
of Mike Jurgensen.
3) The pain and suffering mental anguish
of capacity of the
enjoyment of life
in the past and reasonably certain
to be experienced in the future as
a result of the injury.
4) The reasonable expense of necessary
medical care, treatment, and services
received as a result of the January
23, 1996 accident;
5) The time Mike Jurgensen has lost
for employment since the injury because
he was unable to pursue his occupation
or other income-producing activities.
In determining this amount, you should
consider evidence of Mike Jurgensen's
earning capacity, past, earnings,
and the manner in which he ordinarily
occupied his time before the injury
and find that Mike Jurgensen was reasonably
certain to have earned in the time
lost had he not been disabled.
6) The loss of future earning capacity
of Mike Jurgensen because of his not
being able to pursue his occupation
or other income-producing activities.
The factors to be considered in determining
the measure of damages for loss of
earning capacity included what Mike
Jurgensen earned before the injury
and what he is capable of earning
after the injury, his prior ability
and the extent to which his injuries
affect his power to earn, his age,
his life expectancy, his physical
condition, his occupation, his skill
and habits of industry.
Whether any of these elements of damages
have been proved by the evidence is
for you to determine. Your decision
must be based on evidence and not
upon speculation, guesswork, or conjecture.
BAKKER v. IRVINE, 519 N.W.2d 41
*Here the jury tabulated the loss
of enjoyment of life separately from
other damages and the court
upheld their award.
*Finally, of the non-economic damages,
the value of which are necessarily
subject to the subjective consensus
of the jury, Ronald Bakker received
$ 1,000.00 or one-tenth of what he
claimed for his permanent disability
and Marlys Bakker received $6,000.00
or one-fifth of what she claimed.
As to past and future pain and suffering/loss
of enjoyment of life,
$ 1,250.00 of the $ 28,500.00 claimed
and Marlys received $ 6,500.00 of
the $ 90,000.00 claimed. Ronald also
made a total claim of $ 2,500.00 for
past and future loss of spousal services
and consortium for which the jury
did not award him anything. In respect
to the loss of spousal service, he
complained that since the accident
he had helped with certain household
chores such as vacuuming. There was
no evidence, however, as to what the
cost of replacement would be. As to
the loss of consortium, there was
evidence that the parties were not
as intimate as usual for the first
three or four weeks following the
accident. There was some disagreement
between Mr. and Mrs. Bakker whether,
as of time of trial, they were as
intimate as they always had been.
*Of the total damages sought by Ronald
Bakker of $ 57,667.34, some $ 41,000.00
constituted non-economic damages.
Of the total sought by Marlys Bakker
of $134,469.22, some $ 115,000.00
constituted non-economic damages.
*Accepting the fact that both Bakker's
are permanently and partially disabled
(Mrs. Bakker to a far greater extent
that Mr. Bakker); and accepting the
fact that both Bakkers will most likely
experience physical pain as the result
of their disabilities for the rest
of their lives (again Mrs. Bakker
to a far greater extent than Mr. Bakker);
and having considered the nature,
intensity, and extent of the Bakkers'
physical pain and disabilities as
shown by their evidence; and accepting
the fact that the quality of their
lives is affected
by the physical pain they suffer and
by their disabilities; we are of the
opinion that the non-economic damages
as well as the other damages awarded
by the jury are not facially or manifestly
inadequate. While the jury's awards
for these damages may have been affected
somewhat by the Irvine's personal
background evidence, there are no
objective factors by which this supposition
can be measured. Instead, the evidence
supports the actions of the jury.