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CHESNY v. MAREK

September 3, 1982

ALFRED W. CHESNY, ETC., PLAINTIFF,
v.
J. MAREK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Alfred W. Chesny ("Chesny"), individually and as administrator of the estate of his deceased son Steven, sued defendants under 42 U.S.C. § 1983 ("Section 1983") and a number of state tort laws based on the allegedly unlawful fatal shooting of Steven. After trial on the merits a jury found in part for Chesny and awarded a total of $60,000 against defendants Marek, Wadycki and Rhode. Chesny now moves for an additur to the judgment as well as an award of attorneys' fees. Defendants move for judgment n.o.v. as well as an award of attorneys' fees. For the reasons stated in this memorandum opinion and order Chesny's motions are granted in part and denied in part and defendants' motions are denied.

Additur

Loss of Future Earnings

Though the jury failed to award Chesny any amount as compensation for the loss of Steven's future earnings, Chesny claims he is entitled to such recovery as a matter of law.*fn1 Chesny's expert economist testified that based on Steven's wage rate at the time of his death ($5.50 an hour), less a 30% deduction for personal consumption, the present value of his future lost earnings amounted to $504,859.

But a plaintiff is not absolutely entitled to recover such future earnings in a death action. Recovery is limited to the damage suffered by the next of kin. That damage can take two forms:

    1. what amount decedent would have spent on
  next of kin during his lifetime, and
    2. what amount would have accumulated in
  decedent's estate by the time of his death.

Keel v. Compton, 120 Ill. App.2d 248, 256 N.E.2d 848 (3d Dist. 1970); Denton v. Midwest Dairy Products Corp., 284 Ill. App. 279, 1 N.E.2d 807 (4th Dist. 1936).

As to the first of those elements, there was ample evidence from which a jury could conclude Steven was not supporting anyone and his entire future earnings would have gone either into savings or personal consumption. Thus a jury could reasonably have limited its award to the amount (if any) Steven would have left in an estate at the time of his death (assuming a normal life expectancy).

As for the second factor, this Court also finds the jury could reasonably conclude Steven would not have left any money in his estate. It is true the testimony of Chesny's expert was that Steven would personally consume only 30% of his total future earnings and the remaining 70% would be left as an estate. Defendants offered no expert testimony on that score. But a plaintiff carries the burden of proof as to all damages, and the jury was entitled to reject the expert's testimony and draw its own conclusions.*fn2 This Court cannot overturn the jury's implicit determination that Steven would have left no estate at his death.

Funeral Expenses

Under the circumstances Chesny cannot prevail:

    1. If funeral expenses could not be within the
  "compensatory damages" awarded by the jury, Chesny
  effectively waived his right to their recovery by
  failing to provide a separate instruction for such
  an award.
    2. If funeral expenses could be part of the
  "compensatory damages" award, the jury must be
  viewed as having included ...

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