Damages for Loss of Enjoyment of Life in Personal Injury Cases

Damages for Loss of Enjoyment of Life in Personal Injury Cases

By

Mark A. Abramson and Jared R. Green

 

I.          Introduction:

            On February 9, 1999, our Supreme Court ruled that damages for loss of enjoyment of life are properly recoverable as a separate element of damages under New Hampshire’s wrongful death act.[1]  On September 29, 1999, the Court heard oral arguments in Bennett v. Lembo, a case presenting the question whether such damages were available in common law personal injury cases.[1]  We filed an amicus brief in that case.  In this article we present the arguments in favor of loss of enjoyment of life damages in non-death cases.

 

II.        Bennett v. Lembo:     

           The Bennett case was a run of the mill rear end collision case.  Mr. Bennett, who was retired at the time of the accident, suffered soft tissue injuries to his neck and upper back.  At trial, Judge Sullivan instructed the jury that it could award damages for medical expenses, physical pain and emotional distress, permanent impairment, and loss of enjoyment of life.  The pertinent instructions read as follows:

 

                        Two, reasonable compensation for any pain, discomfort,

                        fears, anxiety or other mental or emotional distress suffered

                        by the plaintiff Edward Bennett and any similar suffering that

                        would probably be experienced in the future.

 

                        Three, a permanent impairment; a sum to fairly and reasonably

                        compensate the plaintiff for the loss of bodily functions and

                        permanent physical disability to his body and to his limbs which

                        he has sustained and is likely to sustain in the future.

                        . . .

                        In addition, in a case in which the plaintiff has established

                        permanent injuries, the jury is entitled to award such

                        compensation as it determines would fairly and fully

                        compensate the plaintiff for any loss of enjoyment of life

                        which he has sustained as a result of the defendant’s legal

                        fault.  This element is separate and distinct from the claim

                        of economic loss and conscious pain and suffering.  It

                        concerns the inability, . . .  if any, you find from the evidence,

                        of the plaintiff to carry on and enjoy a life in a manner had

                        the accident not occurred.[1]

 

            The jury returned a verdict for the plaintiff in the amount of $75,000.  His wife was awarded $25,000 for her consortium claim.  The defendant appealed, arguing that the trial court erred in giving the loss of enjoyment of life instruction and that the verdict was conclusively against the weight of the evidence.  We filed an amicus brief in support of the loss of enjoyment instruction on behalf of a client of ours who has been rendered a pentaplegic, paralyzed from the ears down, in an automobile accident.  Our argument went as follows.            

 

III.       Damages for Loss of Enjoyment of Life Are Available in Personal Injury

           Cases Under New Hampshire Law:

            In 1776, the United States Continental Congress wrote that the pursuit of happiness was an inalienable right.[1]   It is not surprising, therefore, that, eight years later, when this state’s founding father’s articulated the fundamental rights belonging to the state’s citizens, one of the rights deemed worthy of inclusion in the state constitution was the right of every member of the community “to be protected by it, in the enjoyment of his life, . . .”[1]

            Another fundamental right included in the constitution was the right of every citizen to a certain remedy “for all injuries he may receive in his person, property, or character, . . .”[1]   Indeed, it has been the rule in this state since the earliest reported cases that a personal injury plaintiff is entitled to recover “compensation for all his injuries, past and prospective, in consequence of the defendants’ wrongful or negligent acts.” [1]

            Thus, “[t]he usual rule of compensatory damages in tort cases requires that the person wronged receive a sum of money that will restore him as nearly as possible to the position he would have been in if the wrong had not been committed.”[1]   Put another way, “[t]he injured plaintiff has a right to be made whole - not just party whole . . .”[1]

            Since the right to enjoy one’s life is recognized in the state constitution, the tortious deprivation of that right is a cognizable loss or harm.  Damages for loss of enjoyment of life are therefore necessary to make an injured person whole.  In fact, one commentator, Trent Webb, has observed that “our system’s principle of compensation would be gravely incomplete without awards for lost enjoyment of life.”[1]  Using the example of a paralyzed plaintiff, Webb added,

 

                        [w]hile the negative effects of such an injury may be easily seen

                        with x-ray, that person’s inability to feel the cool dew under [his]

                        bare feet or walk down the aisle at [his] wedding can only be

                        experienced by that person.  Our present compensatory system

                        needs hedonic damages to fulfill its definitive goal - to make a

                        person whole.  A person cannot be made whole if he or she is

                        foreclosed from experiencing all of life’s positive stimuli and

                        pleasure.  Therefore, the universal need for hedonic damages

                        mandates their recognition across the board.[1]

            Not surprisingly, damages for loss of enjoyment of life are recognized across the board in personal injury cases.  We have found forty jurisdictions which permit injured persons to recover such damages[1], and none that do not. 

            Courts in this state, including the Supreme Court, have recognized that loss of enjoyment of life is an element of damages in a personal injury case.  For instance, the Supreme Court implicitly authorized such damages in Weldy v. Town of Kingston.[1]  In Weldy, the Court rejected the defendant’s argument that the jury verdict was exorbitant.  Key to the Court’s conclusion was evidence in the record that the plaintiff suffered injuries which “caused her pain and limited her enjoyment of her daily activities.”[1]

            Similarly, in Mankoski v. Briley[1], the Court noted that “Mankoski and her daughter each testified that Mankoski’s enjoyment of life had decreased since the accident and that her disposition had changed for the worse.”[1]

            Federal courts applying New Hampshire law have also permitted recovery for loss of enjoyment of life.  Judge McAuliffe, sitting as the trier of fact in a Federal Tort Claims Act case, recently awarded a plaintiff $500,000 to compensate her for her lost capacity to enjoy life.[1]

            In addition, as our Supreme Court recently recognized, the New Hampshire General Court is one of the few state legislatures that has expressly authorized damages for loss of enjoyment of life under the wrongful death statute.[1]   As one commentator, Kyle Crowe, has emphasized, the Legislature’s declaration of public policy regarding damages for loss of enjoyment of life, as it is set forth in the wrongful death statute, is an important consideration in determining how such damages should be treated under the common law.  “In the absence of an express legislative directive [pertaining to personal injury damages], a court should look to its wrongful death act for guidance in determining what types of objective loss the legislature deems appropriate to compensate.”[1]

            The Court’s conclusion in Marcotte that hedonic damages are available under the wrongful death statute adds a constitutional dimension to the present issue.  Under the state’s equal protection provisions, denial of such damages in personal injury cases while permitting them in death cases would be an impermissible arbitrary distinction. 

            The state constitution guarantees equal protection under the law.[1]   In addition to the general equal protection guarantee in Part I, Articles 2 and 12, equal protection is also explicitly extended to New Hampshire tort victims.  The constitution’s guarantee of a right to a remedy in Part I, Article 14 has been described as “basically an equal protection clause because it implies that all litigants similarly situated may appeal to the courts both for relief and for defense under like conditions and with like protection and without discrimination.”[1]

            Equal protection analysis generally requires only that a classification created by a statute be rationally related to a legitimate legislative purpose.  However, because the right to recover for personal injuries guaranteed by the state constitution is an important substantive right, the constitutionality of any restriction on a New Hampshire resident’s right to recover is subject to the significantly more rigorous middle-tier scrutiny.[1]  

            Under middle-tier scrutiny, where similarly situated persons are treated differently, the classification created by the statute must be reasonable, it must not be arbitrary, and it must differentiate in a manner having a fair and substantial relation to the object of the statute.[1]

If the Court does not recognize damages for loss of enjoyment of life in personal injury cases, this would create a classification, between individuals who are injured and individuals who are killed, which does not pass middle-tier scrutiny.

            There is no legitimate distinction between the loss of enjoyment of life suffered by a pentaplegic and the loss of enjoyment of life suffered by a deceased person.  While a jury would no doubt analyze the amount of damages to which each is entitled differently, there is no basis in law or fact for saying that one suffered a compensable loss while the other did not.  Once the Legislature determined that a decedent’s loss was compensable, it essentially mandated that a personal injury plaintiff’s loss was also compensable.  To hold otherwise would be to create the type of arbitrary distinction that the state constitution’s equal protection provisions forbid.

            The defendant in Bennett argued that the Supreme Court rejected damages for loss of enjoyment of life as an element of recovery in personal injury cases in Ham v. Maine-New Hampshire Interstate Bridge Authority.[1]  Ham was a case in which a man filed suit against a public authority and a private utility for trespass.  He claimed that he suffered mental distress and loss of health when the utility constructed a transmission line on his property.  Prior to trial, the man died and his executrix appeared to prosecute the case.  She moved to amend the declaration the man had filed to seek damages from the defendants for causing his death.[1]   In an interlocutory appeal, the Court rejected the executrix’s amendments because  that “the law gives no recovery for causing death in an action brought before death.”[1]

            What the Court rejected in Ham were damages for loss of continued life (i.e., premature death) in a case originally instituted by a person prior to his death.  It did not address whether a living person -- who, by virtue of his tortiously caused injuries, is unable to do the things that he had previously done -- is entitled to recover damages for the losses he has experienced.[1]  

            There is a subtle, yet critical, distinction between the use of the phrase “loss of life” in the context of a survival suit like Ham and the use of the phrase “loss of enjoyment of life” in the context of a personal injury case.  “Loss of enjoyment of life” has nothing to do with the loss of life itself (i.e., death).  It is merely a shorthand description for a set of well-defined pleasurable experiences which, but for the injuries caused by the defendant’s misconduct, a specific plaintiff would probably have experienced.  The damages the executrix in Ham was seeking for “loss of life,” on the other hand, were undefined, amorphous, and unheard of at the time.  The Ham Court was appropriately concerned about permitting the jury to consider loss of life as an element of damages.

            No one is arguing that juries in personal injury cases should be instructed to award damages for “loss of life” and left to do so without further explanation.  That, however, is the only thing that the Court rejected in Ham.  In any event, Ham is distinguishable on its odd facts.  The application of its reasoning is further eroded by the fact that it was decided in an era when damages for loss of enjoyment of life had not yet been widely recognized, and by the fact that it is now clear that the Legislature has authorized loss of life damages in death cases.  In addition, to the extent that Ham can be read to deny hedonic damages on the ground that they are speculative, this concern has been squarely rejected in the modern cases.  As one author put it,

 

                        there does not seem to be any serious question about

                        allowing recovery under proper circumstances for loss

                        of enjoyment of life.  In view of our increasing societal

                        emphasis on leisure, hobbies, recreation and so on, it

                        seems unlikely that this will change in the future.  While

                        one must admit that it is often difficult to put a monetary

                        price tag on loss of enjoyment of life, that should be no

                        more a deterrent to recovery here than it is in other areas

                        of the law of damages.  Courts have repeatedly admitted

                        that “physical pain,” “mental suffering” or “mental anguish”

                        cannot be accurately measured in money; those same courts,

                        however, do not hesitate to award damages as approximate

                        compensation for the loss sustained.[1]

 

This observation is consistent with our Supreme Court’s recognition in Witte v. Desmarais[1] that

 

                        [t]he test of whether damages are remote or speculative

                        has nothing to do with the difficulty in calculating the

                        amount, but rather the more basic question of whether

                        there are identifiable damages . . . .  Thus, damages are

                        speculative only if the uncertainty concerns the fact of

                        whether there are any damages rather than the amount.[1]

 

            At least forty other states have had no difficulty concluding that the various items included under the rubric of “loss of enjoyment of life” are real losses that cause compensable harm to the injured party.[1]   Our Supreme Court arrived at the same conclusion, implicitly, in  Weldy, and explicitly in Marcotte.  And the General Court, in authorizing such damages under the wrongful death act, has necessarily  determined that a compensable loss occurs when a person is tortiously deprived of the ability to enjoy the positive experiences he had previously enjoyed.

            In sum, an individual’s right to enjoyment of life is a fundamental constitutional right dating back to the very birth of this nation.  When a tort victim suffers injuries which meaningfully interfere with his ability to enjoy the activities he enjoyed prior to the accident, he must be awarded compensatory damages for that loss if he is to be truly made whole.  This conclusion is supported by the fact that such damages are recognized in every state that has addressed the issue; they have been awarded in this state for years; they have been implicitly approved in decisions of our Supreme Court; they have been expressly authorized by the General Court; and they are mandated as a matter of equal protection.

 

 

IV.       Loss of Enjoyment of Life in a Personal Injury Case is a Separate Element of Damages:

            All of the injuries in a personal injury case can be placed in one of two categories: The harm is either a burden that has been imposed on the plaintiff or something of value that has been taken away.  Burdens imposed include medical expenses, physical pain, and emotional suffering.  Benefits taken away, on the other hand, include lost wages, lost earning capacity, permanent impairment, and loss of enjoyment of life.[1]

            When money damages are awarded for an element from the first category, the award is intended to take away the burden that has been imposed.  And, when compensation is awarded for an element of harm from the second category, the award is intended to fill the void by replacing what has been lost.  Viewed in this way, it becomes clear that loss of enjoyment of life is an element of damages that is distinct from physical pain, mental suffering, and permanent impairment.  

            Physical pain and mental suffering, while immediately distinguishable from each other, constitute burdens imposed on the plaintiff.  Compensation for physical pain is intended to take an uncomfortable physical sensation away.  Similarly, compensation for mental suffering is intended to take away a negative cognitive feeling.

            An award for permanent impairment, on the other hand, is intended to compensate a plaintiff for “the loss of bodily functions and permanent physical disability to his body and to his limbs.”  This is a very narrow element of damages.  It applies only when a plaintiff has permanently lost the use of a part of his body, such as an organ or a limb.  The award under this element is intended to replace the use of the organ or limb.  It is similar to the scheduled permanent impairment award in workers’ compensation, which compensates the injured worker for the permanent loss of use of a body part.[1]

            An award for loss of enjoyment of life is not intended to take away the plaintiff’s physical pain or mental distress, and it is not intended to replace the permanent loss of his ability to use a body part.  It is intended to replace the positive experiences that have been taken away from the plaintiff. 

            Much of the discussion in reported cases and in law review articles is centered on the distinction between loss of enjoyment of life on the one hand and physical pain and emotional suffering on the other.  Kyle Crowe has explained the distinction this way:

 

                        Hedonic damage is comprised of two elements: subjective

                        and objective.  Courts that allow hedonic damages under

                        the rubric of general pain and suffering apparently recognized

                        only the subjective part, i.e., that hedonic loss is the suffering

                        due to the knowledge that one will not be able to engage in

                        everyday activities. . . .  Courts adhering to this line of thought

                        apparently conclude that hedonic loss is not what one has lost

                        per se, but rather, the damage one suffers from knowing what

                        one has lost.  In contrast, courts that are willing to recognize

                        hedonic loss as a separate element of compensatory relief

                        apparently see the loss as having both subjective and objective

                        components -- i.e., that hedonic loss is not only the “suffering”

                        (subjective component) of knowing one can no longer enjoy

                        life’s pursuits, but also the “actual” loss (objective component)

                        of not being able to engage in those pursuits.[1]

                       

            One judge of the New York Court of Appeals made the same point in a dissenting opinion.  Rejecting the majority’s argument that a separate award for loss of enjoyment of life would lead to a double recovery since the same damages would have already been awarded under the pain and suffering element, Judge Titone explained that

 

                        the overlap the majority perceives exists only if one assumes,

                        as the majority evidently has, that the “loss of enjoyment”

                        category of damages is designed to compensate only for

                        “the emotional response caused by the limitation of life’s

                        activities” and “the frustration and anguish caused by the

                        inability to participate in activities that once brought pleasure,”

                        both of which are highly subjective concepts. . . .  [W]hile the

                        victim’s “emotional response” and “frustration and anguish”

                        are elements of the award for pain and suffering, the “limitation

                        of life’s activities” and the “inability to participate in activities”

                        that the majority identifies are recoverable under the “loss of

                        enjoyment of life” rubric.  Thus, there is no real overlap, and

                        no real basis for concern about potentially duplicative awards

                        where, as here, there is a properly instructed jury.[1]

 

            The distinction between pain and suffering and loss of enjoyment of life has been recognized in a number of jurisdictions[1], and in several law review articles.[1]

            Just as some courts have inexplicably equated loss of enjoyment of life with physical pain and mental suffering, others have held that separate instructions should not be given for loss of enjoyment of life and permanent impairment.  In fact, the defendant in Bennett v. Lembo argued that “there is no difference between damages for permanent impairment and damages for loss of enjoyment of life.”[1]  The truth is that there is no connection between an award for permanent impairment and an award for loss of enjoyment of life.

            As an initial matter, a plaintiff’s injury need not be permanent for him to have suffered a compensable loss of enjoyment of life.  Consider the example of an avid skier who suffers a knee injury in a car crash that forces him to miss an entire season of skiing.  Should he be denied compensation for loss of enjoyment of life when the injury heals completely six months later?  Of course not.  The duration of the injury does not affect the right to compensation; it only affects the amount of compensation properly awarded.  Nevertheless, if the jury gets only the permanent impairment instruction, it could not award compensation for the skier’s significant loss.

            Moreover, the permanent impairment instruction in New Hampshire, as evidenced by the instruction given in the Bennett case, does not inform the jury that it can award loss of enjoyment of life damages.  The instruction expressly limits the award to “a sum to fairly and reasonably

compensate the plaintiff for the loss of bodily functions and permanent physical disability to his body and to his limbs which he has sustained and is likely to sustain in the future.”  No reasonable juror could conclude from this instruction that he was permitted to award damages for the pleasurable experiences that were taken away from the plaintiff.  The permanent impairment instruction only tells the jury that it should award damages for the plaintiff’s inability to use a part of his body.    

            In light of the fundamental principle that New Hampshire citizens are entitled to be compensated for all losses caused by another’s misconduct[1], personal injury plaintiffs must be awarded damages for loss of enjoyment of life.  A separate instruction is necessary to ensure that he receives “a sum of money that will restore him as nearly as possible to the position he would have been in if the wrong had not been committed.”[1]  Simply put,

 

                        [t]he inability of the jury to consider loss of enjoyment of life as

                        a separate element of damages contravenes the primary purpose

                        for awarding damages in a personal injury action –  restoration of

                        the plaintiff to the position occupied prior to the tortious act of the

                        defendant.[1]

 

            It is no secret that New Hampshire juries are rarely awarding adequate damages in personal injury cases.  Juries are notoriously hard on personal injury plaintiffs in this state, frequently failing to award any non-economic damages.  If the right to full and fair compensation    is to have any meaning, jurors must be instructed to award damages for physical pain, mental suffering, permanent impairment, and loss of enjoyment of life.  And they must be carefully instructed as to the elements of each, and to the distinctions between them.

            Contrary to the assertions of some, a separate instruction on loss of enjoyment of life would not result in duplicative damages, but instead would enhance the accuracy of the jury’s verdict.  Jury instructions must “fully and correctly” inform the jury “in clear and intelligible language the rules of law applicable to the issues of fact upon which their verdict is to be based.”[1]  Once that is done, it has long been the rule in this state that “[t]he jury is presumed to have understood and followed the instructions of the court.”[1]   In fact, “[o]ur system of justice is premised upon the belief that jurors will follow the court’s instructions.”[1]

            By instructing the jury that there are four distinct elements of non-economic damages – physical pain, mental suffering, permanent impairment, and loss of enjoyment of life – the trial court would fulfill its duty to fully and correctly advise the jury regarding the applicable law.  Explaining the contours of these distinct elements, and emphasizing the fact that they do not overlap, would eliminate the threat that the jury would award duplicative damages. 

            A jury instructed in this way would not be placed in a position where the jurors would have to speculate about what is and what is not compensable under each element.  Thus, unless the jurors intentionally disregarded the instructions, they would not award duplicative damages.  In contrast, an instruction which lumps loss of enjoyment of life together with pain and suffering or permanent impairment increases the danger of the jury mistakenly awarding duplicative damages, as well as the equally troublesome danger of the jury failing to award damages for all of the plaintiff’s losses.

            Both the New Hampshire Legislature and the Supreme Court have reached the same conclusion in the wrongful death context.[1]   In light of the fact that the Legislature has seen fit to permit loss of enjoyment of life “as a separate element of damages under the wrongful death statute,”[1] it follows that individuals suffering precisely the same type of loss, but who do not die, are entitled to the same treatment.  The state constitution mandates as much.[1]

 

V.        Conclusion:

            Damages for loss of enjoyment of life are properly awarded in New Hampshire personal injury cases.  Such damages are separate and distinct from damages for physical pain, mental suffering, and permanent impairment.  As a result, if an injured person is to be made truly whole each of these elements should be separately explained to the jury and the jury should be directed to award a separate sum of money for each.  

 

                                                                   ENDNOTES

 



            1.   See Marcotte v. Timberlane/Hampstead School District, No. 94-061 (N.H., February 9, 1999).

            2.   Bennett v. Lembo, No. 97-087.

            3.   Brief for the Defendant-Appellant at 3-4.

            4.   See The Declaration of Independence para. 2 (1776).

            5.   N.H.Const. Part I, Art. 12.

            6.   N.H.Const. Part I, Art. 14 (emphasis added).

            7.   Holyoke v. Grand Trunk Railway, 48 N.H. 541, 545 (1869).  See also Kimball v. Holmes, 60 N.H. 163, 164 (1880) (injured person “is entitled to full compensation for all the injury sustained”).

            8.   Smith v. Cote,128 N.H. 231, 243 (1986).

            9.   Estabrook v. American Hoist & Derrick, 127 N.H. 162, 178 (1985) (quoting A. LARSON, WORKMEN’S COMPENSATION, § 72.50 (Desk ed.)).

            10.  Trent Webb, Hedonic Damages: An Alternative Approach, 61 UMKC L. Rev. 121, 137 (1992).

            11.  Id., 61 UMKC L. Rev. at 138.

            12.  See Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 441 (Alaska 1989); Loth v. Truck-A-Way Corporation, 60 Cal.App.4th 757, 70 Cal.Rptr.2d 571, 575 (1998); Hildyard v. Western Fasteners, Inc., 522 P.2d 596, 601 (Colo.App. 1974); Katsetos v. Nolan, 170 Conn. 637, 368 A.2d 172, 184 (1976); Winter v. Pennsylvania Railroad Company, 45 Del. 108, 68 A.2d 513, 515 (Del.Super. 1949) Standard Jury Instructions, 711 So.2d 1 (Fla. 1998) (Instruction 6.2a); Underwood v. Atlanta & West Point Railroad Company, 105 Ga.App. 340, 124 S.E.2d 758, 768 (1962); Montalvo v. Lapez, 77 Hawai’i 282, 884 P.2d 345, 364 (Hawai’i 1994); Moeller v. Harshbarger, 118 Idaho 92, 794 P.2d 1148, 1149 (Idaho.App. 1990); Smith v. The City of Evanston, 260 Ill.App.3d 925, 197 Ill.Dec. 810, 631 N.E.2d.1269, 1279, cert. denied, 642 N.E.2d 1304 (Ill. 1994); Canfield v. Sandock, 563 N.E.2d 1279, 1281-83 (Ind. 1990); Poyzer v. McGraw, 360 N.W.2d 748, 752-53 (Iowa 1985); Leiker v. Gafford, 245 Kan. 325, 778 P.2d 823, 834-35 (1989); Adams v. Miller, 908 S.W.2d 112, 116 (Ky. 1995); Varnell v. Louisiana Tech University, 709 So.2d 890, 896 (La.App. 1998); Hall v. Goldman, 1 Mass.L.Rptr. 128, 1993 WL 818908 at *4 (Mass.Super. 1993); McAlister v. Carl, 233 Md. 446, 197 A.2d 140, 146 (1964); Kopenga v. Davric Maine Corporation, 727 A.2d 906, 910 (Me. 1999); Peterson v. Department of Transportation, 154 Mich.App. 790, 399 N.W.2d 414, 419 (1986), appeal denied (August 26, 1987); Leonard v. Parrish, 420 N.W.2d 629, 634 (Minn.App. 1988); Thomas v. Hilburn, 654 So.2d 898, 903 (Miss. 1995); Wright v. Long, 954 S.W.2d 470, 472-73 (Mo.App. 1997); Hunt v. K-Mart Corporation, 981 P.2d 275, 277 (Mont. 1999); First Trust Company of North Dakota v. Scheels Hardware & Sports Shop, Inc., 429 N.W.2d 5, 13 (N.D. 1988); Anderson v. Nebraska Department of Social Services, 248 Neb. 651, 538 N.W.2d 732, 741 (1995); Eyoma v. Falco, 247 N.J.Super. 435, 589 A.2d 653, 662 (1991); Sena v. New Mexico State Police, 119 N.M. 471, 892 P.2d 604, 610-11 (N.M.App. 1995), cert. denied, 119 N.M. 389, 890 P.2d 1321 (N.M. 1995); McDougald v. Garber, 73 N.Y.2d 246, 536 N.E.2d 372, 374-77 (1989); Fantozzi v. Sandusky Cement Products Company, 64 Ohio St.3d 601, 597 N.E.2d 474, 481-87 (l992); Coward v. Owens-Corning Fiberglass Corporation, 729 A.2d 614, 627 (Pa.Super. 1999); Stroud v. Stroud, 299 S.C. 394, 385 S.E.2d 205, 206 (S.C.App. 1989); Lawrence v. Town of Brighton, 1998 WL 749418 at *5 (Tenn.App. October 28, 1998); Brookshire Brothers, Inc. v. Wagnon 979 S.W.2d 343, 353 (Tex.App, 1998); Judd v. Rowley’s Cherry Hill Orchards, Inc., 611 P.2d 1216, 1221 (Utah 1980); Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670, 677 (1990); Debus v. Grand Union Stores of Vermont, 159 Vt. 537, 621 A.2d 1288 (1993); Kirk v. Washington State University, 109 Wash.2d 448, 746 P.2d 285, 292-93 (1987); Wisc. St. 893.55(4)(a); Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433, 436-39 (1982); Mariner v. Marsden, 610 P.2d 6, 10-12 (Wyo. 1980).  See also Molzof v. United States 502 U.S. 30l (l992) (permitting damages for loss of enjoyment of life in Federal Tort Claims Act cases); Havinga v. Crowley Towing and Transportation Company, 24 F.3d 1480, 1486 (1stCir. 1994) (admiralty law); Rufino v. United States, 829 F.2d 354, 358-62 (2ndCir. 1987) (predicting New York law); Thompson v. National Railroad Passenger Corporation, 621 F.2d 814, 823-25 (6thCir.), cert. denied, 449 U.S. 1035 (1980) (Tennessee law).

            13.  128 N.H. 325 (1986).

            14.  Id., 128 N.H. at 334.

            15.  137 N.H. 308 (1993).

            16.  Id., 137 N.H. at 311.

            17.  See Irving v. United States, 942 F.Supp. 1483, 1512 (D.N.H. 1996), rev. on other grounds, 162 F.3d 154 (1stCir. 1998), cert. denied, October 4, 1999.  See also Maxwell v. Hitchcock Clinic, Inc., Civ. No. 88-480-SD (D.N.H., March 12, 1993) (Devine, J.); Hayhurst v. Timberlake, Civ. No. 94-199-SD (D.N.H., December 22, 1994) (Devine, J.).

            18.  See Marcotte, supra note 1, slip op. at 14.

            19.  Kyle R. Crowe, The Semantical Bifurcation of Nonecomonic Loss:  Should Hedonic Damage Be Recognized Independently of Pain and Suffering Damage?, 75 Iowa L. Rev. 1275, 1293 (1990).

            20.  See N.H.Const. Part I, Articles 2 and 12.

            21.  Trovato v. Deveau, No. 97-748, slip op. at 2 (N.H. April 21, 1999) (quotations and brackets omitted).

            22.  See Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 682 (1996).

            23.  See id.

            24.  92 N.H. 268 (1943).

            25.  See Id., 92 N.H. at 269.

            26.  Id., 92 N.H. at 275.

            27.  See Marcotte, supra note 1, slip op. at 11.

            28.  John Dwight Ingram, Damages for Loss of the Enjoyment of Life, 24 J. Marshall L. Rev.423, 429 (1991) (footnote omitted).

            29.  136 N.H. 178 (1992).

            30.  Id., 136 N.H. at 188 (quoting 1 R. MALLEN & J. SMITH, LEGAL MALPRACTICE § 16.3, at 894-95 (3d ed. 1989)).  See also Smith, supra note 8, 128 N.H. at 242 (“We have long held that difficulty in calculating damages is not a sufficient reason to deny recovery to an injured party.”).

            31.  See note 12.

            32.  This state has always recognized that the loss of positive experiences is a compensable loss.  Loss of consortium, for example, is an established element of damages which compensates a person for the loss of “love, companionship, affection, society, sexual relations, services [and] solace." LaBonte v. National Gypsum Company, 110 N.H. 314, 318 (1970).  When a person is tortiously deprived of such normally available pleasures, he is entitled to compensation to be made whole.  Such damages are not based on the emotional distress he suffers as a result of these deprivations, but instead are based on the absence of these positive physical and mental experiences.

            32.  See R.S.A. 281-A:32.

            33.  Crowe, supra note 19, 75 Iowa L. Rev. at 1291(footnotes omitted).

            34.  McDougald v. Garber, 73 N.Y.2d 246, 536 N.E.2d 372, 379 (1989) (Titone, J. dissenting) (citations omitted, emphasis in original).

            35.  See Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 441 (Alaska 1989); Hildyard v. Western Fasteners, Inc., 522 P.2d 596, 601 (Colo.App. 1974); Katsetos v. Nolan, 170 Conn. 637, 368 A.2d 172, 184 (1976); Montalvo v. Lapez, 77 Hawai’i 282, 884 P.2d 345, 364 (Hawai’i 1994); Moeller v. Harshbarger, 118 Idaho 92, 794 P.2d 1148, 1149 (Idaho.App. 1990); Smith v. The City of Evanston, 260 Ill.App.3d 925, 197 Ill.Dec. 810, 631 N.E.2d.1269, 1279, cert. denied, 642 N.E.2d 1304 (Ill. 1994); Varnell v. Louisiana Tech University, 709 So.2d 890, 896 (La.App. 1998); McAlister v. Carl, 233 Md. 446, 197 A.2d 140, 146 (1964); Kopenga v. Davric Maine Corporation, 727 A.2d 906, 910 (Me. 1999); Thomas v. Hilburn, 654 So.2d 898, 903 (Miss. 1995); Wright v. Long, 954 S.W.2d 470, 472-73 (Mo.App. 1997); Hunt v. K-Mart Corporation,  981 P.2d 275, 277 (Mont. 1999); Eyoma v. Falco, 247 N.J.Super. 435, 589 A.2d 653, 662 (1991); Fantozzi v. Sandusky Cement Products Company, 64 Ohio St.3d 601, 597 N.E.2d 474, 485 (l992); Coward v. Owens-Corning Fiberglass Corporation, 729 A.2d 614, 627 (Pa.Super. 1999); Lawrence v. Town of Brighton, 1998 WL 749418 at *5 (Tenn.App., October 28, 1998); Kirk v. Washington State University, 109 Wash.2d 448, 746 P.2d 285, 292-93 (1987); Wisc. St. 893.55(4)(a); Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433, 437 (1982); Mariner v. Marsden, 610 P.2d 6, 12 (Wyo. 1980).  See also Rufino v. United States, 829 F.2d 354, 361 (2ndCir. 1987); Thompson v. National Railroad Passenger Corporation, 621 F.2d 814, 824 (6thCir.), cert. den,, 449 U.S. 1035 (1980).

            36.  See Carleton Robert Cramer, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac. L.J. 965, 972 (1981) (“loss of enjoyment of life injuries are clearly distinguishable from those injuries compensated under the more commonly recognized categories of loss of earning capacity and pain and suffering.”); John Dwight Ingram, Damages for Loss of the Enjoyment of Life, 24 J. Marshall L. Rev. 423, 431 (1991) (“The enjoyment of life is a very personal and important aspect of a person, and courts should treat it as such.  To fully compensate for loss of enjoyment of life, courts should treat it separately from pain and suffering.”); Pamela J. Hermes, Loss of Enjoyment of Life - Duplication of Damages Versus Full Compensation, 63 N.D. L. Rev. 562, 599 (1987) (“A jury should be free to consider all the effects of a plaintiff’s injury in order to assure that full compensation is awarded.”).

            37.  Brief for the Defendant-Appellant at 20.

            38.  See Emery v. Tilo Roofing Company, 89 N.H. 165, 170 (1937) (“damages in a given case should give full compensation for the loss sustained); N.H.Const. Part I, Art. 14.

            39.  Smith, supra note 8, 128 N.H. at 243. 

            40.  Cramer, supra note 36,12 Pac. L.J. at 977.  See also Thompson v. National Railroad Passenger Corporation, 621 F.2d at 824.

            41.  Rawson v. Bradshaw,125 N.H. 94, 99-100 (1984) (emphasis in original).

            42.  Watkins v. Boston & Maine Railroad, 84 N.H. 124, 128 (1929).  See also Wendell v. Moulton, 26 N.H. 41, 63 (1852) (“It is to be presumed that the jury understand the instructions given to them by the court”).

            43.  State v. Smart, 136 N.H. 639, 650 (1993) (quoting State v. Novosel, 120 N.H. 176, 186 (1980)).

            44.  See Marcotte, supra note 1, slip op. at 7.

            45.  Id., slip op. at 14.

            46.  See Nutbrown, supra note 22, 140 N.H. at 682.