and moved it toward the left pocket of his jacket. At that, Berry
pulled the trigger of his pistol, shooting Ronald Sherrod in the
left temple, killing him instantly. When his body was examined by
Berry, Klepfer, and other Joliet police officers, Ronald Sherrod
had a cigarette lighter in the left pocket of his jacket; in the
right-hand pocket was his driver's license. No weapon of any kind
was found either in or near the car, or on Duckworth. The news
report of the killing stated that the police suspected Ronald of
being a robber. A coroner's death certificate that was issued
later recorded that Ronald Sherrod was suspected by the police of
having been a robber. There was no factual basis for these
Because of this fact, Sandra Sherrod, accompanied by a friend
of long standing, went to the office of Frederick Breen, the
Joliet Chief of Police, asking that "the name of my son be
cleared" by removing the insinuation that Ronald Sherrod was
suspected by the police of having been a robber, and that
disciplinary action be taken against Berry. Her request was
refused; she went to Breen's office a number of times later,
always with the same friend, and always insisting that "the name
of my son" be cleared by Breen in his capacity as Chief of Police
Berry, at the time of this incident, had been a Joliet
policeman a little more than six years. Breen knew him; he had
evaluated Berry as an average or above average police officer.
Breen had been Joliet's police chief for thirteen years. Sandra
Sherrod's complaint was not the first time a citizen had
complained to Breen about Berry using excessive force in the
discharge of his official duties. In fact, on at least three
earlier occasions, a citizen had been abused by Berry. In none of
the incidents did Breen impose serious sanctions on Berry. This
suit was filed by Lucien Sherrod, individually, and in his
capacity as administrator of the estate of his son, after he and
his wife, Sandra, could not obtain the redress they sought from
Breen and the City of Joliet.
At the trial, in order to prove the damages he suffered from
the death of his son, Lucien Sherrod called as an expert witness,
Stanley Smith, an economist, holder of a master's degree in
economics from the University of Chicago. Defendants did not
question Smith's qualifications; instead, they filed a motion in
limine asking that his testimony concerning the hedonic value of
life be excluded from the jury on the ground that it was
speculative. The motion was denied, this court ruling that such
testimony was not speculative; that it was relevant and material
and would aid the jury in determining the proper amount of
damages in the event it found in favor of the plaintiff.
Accordingly, Smith, after explaining what he did and the
information he used, testified to the amount of loss Lucien
Sherrod suffered when he was deprived of his son's association
and companionship. Smith described and explained how he had
calculated the economic loss which Ronald Sherrod's estate
incurred from his death. Smith told the jury the basis of his
opinions, and the economic theories which supported his
Apart from his testimony concerning the economic value of life,
he gave the jury some "insight into the guidelines that
economists use in looking at how society values what we call the
hedonic aspect, the hedonic value of life, separate from economic
productive value of an individual." He said there had been
studies by economists which "indicate that a human life has value
separate from the economic productive value that a human being
would have." Of course, Smith said, the economic aspect of life
valuation presents what may appear to be imponderable
difficulties in those cases when the individual, because of
infancy, old age, or physical incapacity, has no measurable
economic productivity. These difficulties, however, did not apply
to the case before the jury because Ronald Sherrod was gainfully
employed up to the day he was killed by Berry.
Smith told the jury that in the last 10 years economic
literature showed some 15 studies "with respect to the value of
life." There "was a study by Blomquist here in Illinois" which in
turn considered all the other studies and found that there was a
relationship somewhere in the dimension of three times up to 30
times their economic productive income. Smith expressed agreement
with Blomquist's conclusions, considering him an authoritative
source of knowledge on the subject of the hedonic value of life.
At the end of Smith's testimony, which included extensive direct
and intensive cross-examination, this court asked Smith to define
for the jury the word "hedonic" as it is used in the expression
"the hedonic value of life." Smith said:
It derives from the word pleasing or pleasure. I
believe it is a Greek word. It is distinct from the
word economic. So it refers to the larger value of
life, the life at the pleasure of society, if you
will, the life — the value including economic,
including moral, including philosophical, including
all the value with which you might hold life, is the
meaning of the expression "hedonic value".
This testimony was given to the jury that was considering the
claims which Lucien Sherrod was asserting under 42 U.S.C. § 1983
as administrator of his son's estate. A § 1983 action is a suit
for tort damages, even though the duty a defendant is alleged to
have breached is created by the Constitution or federal law.
Benson v. Cady, 761 F.2d 335, 339 (7th Cir. 1985). This section
was enacted by Congress to protect individuals against invasions
of federally guaranteed rights through the misuse or abuse of
powers derived from the state, Luker v. Nelson, 341 F. Supp. 111,
120 (N.D.Ill. 1972); and to furnish a damages remedy, where proof
is made, to those whose civil rights are violated but who cannot
get relief in the courts or agencies of their state. Monroe v.
Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 480, 5 L.Ed.2d 492 (1961).
The basic purpose of a § 1983 damages award should be to
compensate persons for injuries caused by the deprivation of
constitutional rights. Carey v. Piphus, 435 U.S. 247, 254, 98
S.Ct. 1042, 1047, 55 L.Ed.2d 252 (1978); Kincaid v. Rusk,
670 F.2d 737, 745-46 (7th Cir. 1982).
In this case, Ronald Sherrod's death was caused by the
constitutional deprivation for which compensation was sought.
Section 1983, and the applicable provisions of the Fourteenth
Amendment, protect life. It is well established in this and other
circuits that on the facts alleged, and on the evidence the jury
heard, the estate of Ronald Sherrod could sue and recover damages
for the loss of his life. Bell v. City of Milwaukee,
746 F.2d 1205, 1236 (7th Cir. 1984); O'Connor v. Several Unknown
Correctional Officers, 523 F. Supp. 1345, 1348 (E.D.Va. 1981); cf.
Guyton v. Phillips, 532 F. Supp. 1154, 1166 (N.D.Calif. 1981).
"Life," Blackstone has reminded us, "is the immediate gift of
God, a right inherent by nature in every individual. . . ." 1 W.
Blackstone, COMMENTARIES *129; Evans v. The People, 1 Cow.Cr.R.
494, 501 (N.Y. 1872) (Grover, J., dissenting). The deprivation of
life that is prohibited by the Fourteenth Amendment includes "not
only of life [itself], but of whatever God has given to everyone
with life for its growth and enjoyment. . . ." Munn v. Illinois,
4 Otto 113, 142, 94 U.S. 113, 142, 24 L.Ed. 77 (1876) (Field, J.,
dissenting). In other words, the loss of life means more than
being deprived of the right to exist, or of the ability to earn a
living; it includes deprivation of the pleasures of life.
This is the point that Smith discussed with the jury when he
told them about "the hedonic value of life." As he explained to
them, "hedonic" refers "to the larger value of life. . . ." This
includes the pleasure of living which is destroyed by the blow
that is lethal; in this case, the fatal pistol shot that Berry
fired into the temple of Ronald Sherrod, a mere youth; and thus
taking from him what all the wealth in the world could never
purchase. Smith's expert testimony enabled the jury to consider
this important aspect of injury which the estate of
Ronald Sherrod suffered, an aspect they should have considered in
the event they determined that Lucien Sherrod, as administrator,
was entitled to a judgment against the defendants.
All competent evidence tending to establish a legitimate item
of damage is, under proper pleadings, relevant and admissible. In
re Air Crash Disaster Near Chicago, Ill., 701 F.2d 1189, 1195
(7th Cir. 1983); see Har-Pen Truck Lines, Inc. v. Mills,
378 F.2d 705, 711 (5th Cir. 1967); De Koven Drug Co. v. First National
Bank of Evergreen Park, 27 Ill. App.3d 798, 802, 327 N.E.2d 378,
380-81 (1st Dist. 1975). Evidence of all the facts and
circumstances of the case having any legitimate tendency to show
the damages, or their probable amount, may be admitted for the
purpose of enabling the jury to make the most accurate and
probable estimate that the nature of the case permits. The fact
that the hedonic value of a human life is difficult to measure
did not make either Smith's testimony or the damages speculative.
Damages are speculative when the probability that a circumstance
as an element of compensation is conjectural. The rule against
recovery of "speculative damages" is generally directed against
uncertainty as to cause rather than uncertainty as to measure or
extent. That is, if it is uncertain whether the defendant caused
the damages, or whether the damages proved flowed from his act,
there may be no recovery of such uncertain damages; whereas,
uncertainty which affects merely the measure or extent of the
injury suffered does not bar a recovery. Crichfield v. Julia, 147
F. 65, 70-71 (2d Cir. 1906); see Calkins v. F.W. Woolworth Co.,
27 F.2d 314, 319 (8th Cir. 1928); Shannon v. Shaffer Oil &
Refining Co., 51 F.2d 878, 881 (10th Cir. 1931).
Contrary to what may be the popular view, the idea that an
estate can recover for the hedonic value of the life of the
person killed is not new in Anglo-American law. In England, for
example, hedonic damage awards have been allowed since 1976.
Section 1 of the Law Reform (Miscellaneous Provisions) Act of
1934 has been construed by English judges so that the estate of a
person killed can recover for "loss of expectation of life."
Prichard, Personal Injury Litigation, 137-142 (London 1976); see
also McCann v. Sheppard, 1 W.L.R. 540 (Ct. of App.Eng. 1973). In
this country, legal scholars, economists, and social scientists
have grappled with the task of formulating a method by which the
value of a human life can be measured in terms understood by a
jury. See Speiser, Recovery for Wrongful Death 2d, Economic
Handbook, Section 12.5; Broome, Trying to Value a Life, 9 Journal
of Public Economics 91 (1978); Dardis, The Value of Life: New
Evidence from the Marketplace, 70 American Economic Review 1077
(1980); Linnerooth, The Value of Human Life: A Review of Models,
17 Economic Inquiry 52 (1979). Therefore, the concept, although
novel, is not unknown. The testimony of Stanley Smith as an
expert in economics enabled the jury to perform its function in
determining the proper measure of damages in this case. This
court's ruling allowing him to testify concerning "the hedonic
value of life" was not error.
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