THIS OPINION HAS BEEN VACATED

This holds that a wrongful-death award of zero can be proper.

Mr. Walsh died in defendant’s care. His wife and adult children sued. The jury awarded the wife one million dollars and, for no apparent reason, the children zero. After the jury was discharged they moved for new trial. The trial court ruled that they had waived the issue since you must move to correct a defective verdict when the jury is still seated. (Though zeros happen not infrequently too many lawyers have no clue; ask the judge to remind the jury of the instructions or instruct it appropriately and have it deliberate some more – the idea is that you have to give that judge and jury a chance to fix it.)

The Court of Appeals says that the waiver issue is “moot” because it decides that a wrongful-death zero isn’t defective. That puts the cart before the horse. The court reaches the zero issue because it wants to.

At common law damages are an element of the cause of action — if you have none then there is no liability, thus a plaintiff’s verdict for zero dollars is contradictory. But a wrongful-death action is statutory. (The court says that the result is the same even if wrongful-death has some common-law tie, in deference to a strange case suggesting that called Summerfield.) Wrongful-death damages are not the result of a negligent act; they are the result of the result of a negligent act. The statute lets the jury award what is  “fair and just”; it doesn’t’ say that “fair and just” can’t be zero. The jury was free to decide that the children weren’t really damaged despite their protestations to the contrary.

Two cases from Division Two hold that a wrongful-death zero is defective. There were dissents in both cases, with which this court agrees.

The court declines the children’s request to make this holding prospective only. That can be done where an opinion overrules “clear and reliable precedent.” The court tells us that  the Division Two precedent wasn’t because those cases had “strong dissents”  Well, there are other reasons to deny this sort of request and maybe they were valid here. But to say that two clear cases weren’t “clear” because these judges agree with their dissents – which thereby become “strong dissents,” as opposed to a dissent they didn’t agree with, which would presumably become a “weak” dissent – is little more than an insult. If there had been a dissent in this case, how would the majority have characterized it? The same, presumably, as the majority in the two other cases would have characterized theirs. Maybe there’s something after all to the idea that Division One looks down on Division Two.

Given the dissent between the divisions, of course, this one could go further.

(What, you ask, about a zero in a contract action? Maybe defective and maybe not; the safe course is to assume so.)

(link to opinion)