Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
[A] lawyer, Alan L. Fuchsberg, was estimating the value of a case involving
another man who died on Sept. 11. He was 42 and earned $54,000 as a clerk in a
financial firm in the World Trade Center. Mr. Fuchsberg said the clerk’s case might
bring a substantial award for pain and suffering. The office he worked for was on
the 90th floor of the second tower to be hit, where there were announcements
encouraging people to return to their desks while the first tower burned.
The clerk, Mr. Fuchsberg said, would have had plenty of time to understand his
circumstances. “Obviously,” the lawyer said, “it got very smoky and hot and
unbearable.” But Mr. Fuchsberg said he told the clerk’s father to expect a
comparatively small award for economic damages, especially if it was difficult to
prove that the clerk, who was single, provided substantial support to his aging
parents. Mr. Fuchsberg said some claims for single people with no dependents
could be worth as little as $100,000.
The clerk’s father, who asked not to be named, said he was stunned to learn the role
a person’s income played in lawyers’ math. “The value of a life is certainly not
determined based on earnings,” he said, his voice breaking. “We’re talking about
my son.”
William Glaberson, Lawyer Math in Sept. 11 Deaths Shows Varying Values for a Life,
N.Y. TIMES, Nov. 11, 2001.
5. Wages versus wealth. Of course the income-tracking effect of tort damages does not
perfectly reflect wealth per se: it reflects income. Tort damages doctrine treats people with high
income and low wealth, for example, very differently from people with low income and high
wealth. A retired person with no wages but significant retirement savings will often receive little
in pecuniary damages if she suffers no lost income. At the same time, a working person with high
wages but no savings will receive a significantly higher award. The assets of the retiree would not
be taken into account, because those assets would still be available to the plaintiff or the plaintiff’s
estate after the tort. In practice, wealth and income are extremely correlated. Low-income
households are unlikely to have significant net worth and most low-wealth households do not
have high incomes. See CONGRESSIONAL RESEARCH SERVICE, AN ANALYSIS OF THE DISTRIBUTION
OF WEALTH ACROSS HOUSEHOLDS, 1989-2010 (2012).
6. Wage differentials. The Pew Foundation has produced the following chart depicting wage
differentials by race and gender. What does it mean for tort damages?
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