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Andrew Bergh
Andrew Bergh

October 5, 2000

Auto accident leads to grim calculations

By ANDREW BERGH
Special to the Journal

The crash killed Marcus May instantly.

He was 8 years old.

But Marcus’ two siblings who also died on impact were even younger. Sumone was only 3 years old, while Nicholas had seen just one birthday.

To compound the tragedy, the children’s mother was likewise dead at the scene.

But unlike her kids, Cheryl May was no innocent victim. If the Mississippi woman had obeyed a simple rule of the road the night of Jan. 22, 1995, her family would still be alive. Instead, while driving on Old Hebron Road in Jefferson Davis County, Cheryl ran a stop sign and smashed into a greyhound bus traveling north on State Highway 13. The collision was so violent that even the bus driver and several passengers were injured.

Like most states, Mississippi allows parents to be sued by their children.

So shortly after the accident, a wrongful death action was filed against Cheryl’s estate. The bus company, too, got sued, as there was credible evidence that its driver was speeding and never saw the Mays’ car before the impact.

Liability was hotly contested when the case went to trial in February 1997.

But the parties also brawled over damages. The key issue? The net income Marcus, Sumone and Nicholas would have earned in their lifetimes.

Except for the Shirley Temples of the world, most pre-teen kids have virtually no work history. That was certainly true of Marcus, Sumone and Nicholas, who together had lived less than 13 years.

So the parties relied on experts – economists, to be exact – to prove their claims.

Talk about an astounding disparity in numbers!

According to the plaintiffs’ expert, the economic loss to Marcus’s estate was over $613,000. In reaching this number, the economist assumed at the outset that Marcus would have graduated from high school.

Relying on governmental statistics, the expert then multiplied the average annual earnings of a high school graduate by the number of years Marcus likely would have been in the workforce. He next deducted 30 percent for Marcus’s personal living expenses, and then discounted the remainder to its present value.

Using this same methodology for the other two children, the plaintiffs’ expert fixed the economic loss to Nicholas’s estate at $589,000, and the economic loss to Sumone’s estate at $334,000.

(Although Sumone was the second oldest child, her losses were the lowest because, statistically speaking, a female child earns less money and works less time during her lifetime.)

But Greyhound’s economist said “No way!”

Instead of using the average earnings of a high school graduate, the bus company’s expert assumed Marcus would have made the same as his mom – about $8,000 per year. He also used a lot higher consumption rate, since low wage earners have almost no discretionary income.

So after likewise discounting his calculation to its present value, the defense economist said the loss to Marcus’s estate was a measly $1,753.04. Nicholas and Sumone were close behind at $1,602.67 and $520.30, respectively.

But as it turned out, Greyhound took a bath at trial.

First of all, the judge said the bus driver was 10 percent at fault. That finding sunk Greyhound’s ship, as under Mississippi law, a defendant only partly to blame – even just 1 percent – remains liable for 100 percent of an innocent plaintiff’s damages.

To make things worse, the judge rejected the testimony from Greyhound’s economist and instead awarded $1.1 million to each child’s estate. (There were other recoverable damages besides future income loss.) So since mom had died with no assets, the bus company found itself on the hook for $3.3 million.

An appeal soon followed. And to everyone’s surprise, a Mississippi appeals court later ruled that both economists’ calculations were flawed.

Instead of using either mom’s income or that of a high school graduate, the court said, damages should have been based on the average income of the community in which the May children lived. And since neither party had presented any evidence on that point, the court said damages should be retried.

But just six weeks ago, the Mississippi Supreme Court issued the final word. And once again, the bus company got bad news.

As the justices noted, today’s society is a lot more mobile, with greater educational and job-training opportunities available to children as a whole. It therefore makes no sense, said the court, to base a child’s future earnings potential on the wealth or affluence (or lack thereof) of either his parents or the community in which he lives.

Instead, said the court, a deceased child’s projected future income should be based on national averages.

And since that’s precisely what the trial judge used to assess the estates’ damages, the court ultimately affirmed the $3.3 million award.

Hmm. In cases involving the wrongful death of a young child, economic terms like projected work life expectancy, consumption rate and present value seem out of place.

But on the other hand, it’s not as if Marcus, Sumone or Nicholas May picked their fate.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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