Wrongful death in North Carolina is a creature of statute. As such, when a claim is being evaluated by an insurance company or a jury, the statute controls what damages are available to the beneficiaries of a wrongful death claim. North Carolina General Statute section 28A-18-2(b) states as follows:

Damages recoverable for death by wrongful act include:

• Expenses for care, treatment and hospitalization incident to the injury resulting in death;

• Compensation for pain and suffering of the decedent;

• the reasonable funeral expenses of the decedent;

• The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of reasonably expected;

a. Net income of the decedent,

• Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered, (emphasis added)

c. Society, companionship, comfort, guidance, kindly office and advise of the decedent to the persons entitled to the damages recovered;

• Such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had he survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in G.S. 1D-5;

• Nominal damages when the jury finds so.

A. PLAINTIFF IS ENTITLED TO RECOVER FOR PAIN AND SUFFERING

BOTH BEFORE AND AFTER THE MORTAL WOUND OCCURRED

[N.C.-G.S. SECTION 28A-18-2(b)(2)]

When the decedent is aware of the imminent threat of danger prior to the mortal wound, his estate is entitled to collect damages for pre-injury pain and suffering. Livingston v. United States , 817 F. Supp. 601(1993). When the decedent is conscious after the mortal wound, and thus after infliction of the mortal injuries, his estate is likewise entitled to compensation for said pain and suffering. Brendle v. General Tire & Rubber Co. 408 F.2d 116 (4 th Cir. 1969).

B. PLAINTIFF IS ENTITLED TO RECOVER REASONABLE BURIAL EXPENSES

[N.C.-G.S. SECTION 28A-18-2(b)(3)

The beneficiaries are entitled to recover the reasonable burial expenses.

C. PLAINTIFF IS ENTITLED TO RECOVER THE PRESENT MONETARY VALUE OF DECEDENT [N.C.-G.S. SECTION 28A-18-2(b)(4)]

The statute governing damages in wrongful death actions, G.S. section 28A-18-2(b), allows for the estate to recover the present monetary value of the decedent. The present monetary value is not set, but rather gleaned by expert testimony from the evidence available and submitted into evidence at trial, and from statistical data which, in and of itself, may not be admissible into evidence. Thorpe v. Wilson , 58 N.C.App. 292, 293 S.E.2d 675 (1982). The court acknowledged in Thorpe that expert testimony is practically the only evidence available to prove future earnings. Further, it is acknowledged that the present monetary value of the decedent to the persons entitled to receive the damages recovered will usually defy any precise mathematical computation. The plaintiff’s expert will testify as to the decedent’s life expectancy, his expected lifetime earnings based, and the cost of living in North Carolina .

D. PLAINTIFF IS ENTITLED TO RECOVER PUNITIVE DAMAGES [N.C.-G.S. SECTION 1D-5]

The North Carolina Court of Appeals recently addressed this issue in Byrd v. Adams 568 S.E.2d 640 (2002). There the court stated that, “To prevail on a claim for punitive damages, plaintiff must show that defendant’s established negligence which proximately caused his injury reached a higher level than ordinary negligence; that it amounted to wantonness, willfulness, or evidenced a reckless indifference to the consequences of the act. In actions involving motor vehicle accidents, this “higher level than ordinary negligence” (hereinafter “gross negligence”) can be established where at least one of three rather dynamic factors is present: (1) defendant is intoxicated …; (2) defendant is driving at excessive speeds …; or (3) defendant is engaged in a racing competition.” Id. at 642

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