Redressing the Harm of Death

Sean Hannon Williams, Lost Life and Life Projects, 87 Indiana L.J. 1745 (2012).

Sean Hannon Williams’ Lost Life and Life Projects tackles “wrongful death damages from the perspective of individual justice accounts of tort law.” Wrongful death damages—or, more accurately, their inadequacy—have long troubled tort scholars. Lately, as Williams shows, their shortcomings have been a particular sore point for economically oriented tort scholars.

The early common law of torts did not recognize any damages at all for wrongful death. Tort actions were personal and they died with the victim. Legislatures soon responded to this gap by passing two different kinds of statutes. One kind—survival statutes—enabled the estates of those wrongfully killed to recover the damages to which the dead would have been entitled had they not died (e.g., damages for medical treatment prior to death). The other kind—wrongful death statutes—addressed relational harm. Wrongful death statutes permit intimate relatives of the victim to recover for harm that they have suffered from her death (e.g., loss of financial support). Neither statute addressed the harm to the victim of her own premature, wrongful death. Only recently has there been any movement to remedy this gap by awarding damages for the victim’s lost “enjoyment of life.” Williams’ project is to bolster the case for such damages, in the name of justice to those who have lost their lives.

Williams is right to think that the absence of such damages is an issue of significance to the law of torts. Tort is the common law institution that protects against and redresses harm wrongly suffered at the hands of others. Premature death is normally the harm we fear most. But the law of torts provides no redress for that harm. Legal economists have found this particularly disturbing. The economic theory of torts holds that the deterrence of excessively risky activities—not redress or repair—is the raison d’être of the law of torts. On an economic view, tort deters by pricing the costs of avoiding harms and the costs of bearing those harms that should not be avoided so that rational actors take those costs into account in their decision-making. Death, like other costs, needs to be priced.

The absence of damages redressing the loss to the victim of her own death makes the tort system an incomplete pricing system and an imperfect form of deterrence. Tort economists have responded to this predicament by calling for the award of damages for the value to the victims of wrongful death of the lives that they have lost. This proposal may have merit as law reform, but the common law of torts has shown little inclination to evolve in this direction. Tort law’s resistance appears deep. The premise that damages are remedial is entrenched. Damages for the value to the victim of the life she has lost do not undo her death. The result of this internal logic, however, is an institution which ought to trouble all of us. Tort provides poor redress for, and little protection against, the worst harm that we can suffer.

Professor Williams finds both the present state of the law and the legal economists’ response to it unsatisfying. The law as it stands, he complains, values the death of the victim only insofar as she was useful to others. It values her only as a means, and not as an end in herself. Williams finds the economic solution unsatisfying for more complicated reasons. First, Williams finds corrective justice and civil recourse accounts of tort more descriptively accurate than economic accounts. Second, his deepest instincts are not welfarist. He thinks that tort protects, and death destroys, human agency—the exercise of will in the world for ends set by human subjects. Third, the economic view itself may be charged with not treating victims as ends-in-themselves. It awards damages in order to achieve optimal deterrence, not to vindicate the rights and repair the wrongs done to those who are wrongfully killed. Treating the victims of wrongful death as ends requires vindicating their rights, not just realizing a state of the world in which only cost-justified deaths occur.

To this end, Williams proposes awarding damages whose guiding aim is to effect the “life projects” that the dead held dear during their lives. This is a plausible proposal and most likely an improvement on the status quo. But it is a pale effectuation of personal autonomy. Exercising autonomy, like exercising, is not the kind of thing that others can really do for you. One wonders, therefore, if the problem of wrongful death is more intractable than Williams allows. Death is a unique harm. Other harms take place within lives. Their severity is measured by what they do to those lives. Tort remedies attempt to repair and rebuild damaged lives. Death happens not in a life but to a life, and it is this fact that robs tort remedies of their power. Death ends human agency and tort does not possess the God-like power to revive that agency. Wrongful death damages can further the unfinished projects of the dead, and that is no small thing. They may also be able to give public expression to the value of the lives lost and the rights violated. And they may provide a measure of deterrence. But they cannot give back to the dead the agency that has been taken from them. The only real “cure” for the harm of having one’s agency ended prematurely is avoiding that harm.

This suggests a possibility that Professor Williams does not consider. When harms cannot be repaired, an institution which responds to harm by enabling its repair may not be the institution of choice. What we need is an institution which enables us to double down on precaution. Health, safety, and environmental regulations which enjoin, variously, that our air and water be made safe, or that all feasible precautions be taken against some irreparable injuries may point the way to a more adequate response.