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.
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
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.
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
2. If funeral expenses could be part of the
"compensatory damages" award, the jury must be
viewed as having included ...