Establishing Damages for Lost Household Services

By: Brian Piper, PhD

Lost household services are frequently an element of economic damages in personal injury and wrongful death cases.

Attorneys on both sides of a case may benefit from asking the injured party or the survivors questions to obtain facts an economist needs to calculate lost household services. It is necessary to know what household services the plaintiff provided before the event and what services he or she can still provide with or without accommodations. RPC has prepared a questionnaire. If the attorney asks the right questions about household services, the economist can provide a more reasonable and defensible damage calculation.

The Dollar Value of a Day

When lost household services are alleged, economists retained by the plaintiff often rely on The Dollar Value of a Day, to calculate the replacement value of lost services. The Dollar Value of a Day is published annually by Expectancy Data.[1] It uses data from the U.S. Census Bureau’s American Time Use Survey[2] to calculate the average hours per week spent on various household services. The publication reports hours spent on specific services separately for persons of different genders, marital statuses, employment statuses, and numbers of children. It then uses the Bureau of Labor Statistic’s Occupational Employment Statistics (“OES”)[3] to estimate an hourly replacement cost for each category of service.

The service categories in The Dollar Value of a Day are:

• Household Production
• Caring and Helping
• Personal Time
• Leisure
• Work and Education

The categories usually related to calculating household services are Household Production and Caring and Helping, which consist of these sub-categories:

• Household Production:
  • Inside Housework
  • Food Cooking & Clean-up
  • Pets, Home & Vehicles
  • Household Management
  • Shopping
  • Obtaining Services
  • Travel for Household Activity
• Caring and Helping:
  • Household Children
  • Household Adults
  • Non-Household Members
  • Travel for Household Members
  • Travel for Non-Household Members

Finally, each sub-category consists of the specific tasks recorded in the American Time Use Survey. For example, the subcategory Inside Housework includes these specific tasks:

• Household Production:
  • Inside Housework
    • Interior cleaning
    • Laundry
    • Sewing, repairing, & maintaining textiles
    • Storing interior household items, including food
    • Housework, not elsewhere classified

If the plaintiff claims damages for lost household services, questions should be asked about specific tasks the plaintiff performed pre-event and post-event, rather than a broader categories of services. RPC supplies attorneys with a questionnaire to aid in this interview. It is adapted from the The Dollar Value of a Day tasks and can be found here. It is unnecessary for a plaintiff to have participated in every task within a category.  It is, however, important, to determine whether a plaintiff regularly engaged in each subcategory of household services.  Questions should be phrased to determine the tasks within a subcategory that the plaintiff provides or provided and the frequency those tasks were performed.  For reasons discussed below, it is not important usually to get estimates of how much time the plaintiff spent on those tasks.

The Dollar Value of a Day reports average values of time spent on tasks for each demographic group. These averages, calculated from a time diary survey, are generally more reliable than personal recollections of how much time individuals spent on tasks, reported in direct questions. Direct question surveys tend to have higher time estimates than time diary surveys. Both survey methods are more accurate when questions are about specific, detailed tasks rather than broader categories of tasks.[4]

Because of the documented over-reporting of time in direct question surveys, RPC’s default position is to calculate lost household services based on average time spent for a demographic group rather than reported time spent by the individual unless only a few specific services (e.g. lawncare and home cleaning) were impacted. RPC only adjusts average time spent when there is a reasonable basis to think an individual spent significantly more or less time than average on a category of tasks.

If the plaintiff spent much more time than average on certain tasks, it is important to ask why. For example, did the plaintiff have a child with special needs requiring additional care? Did the plaintiff have elderly or infirm relatives living in the household requiring additional services? Was the plaintiff an auto mechanic who did car maintenance and repairs for which the average person might use an outside mechanic?

If the injured person spent significantly less time than average on certain services, it is also important to ask why. For example, an oil field worker who spends two weeks away from home at a time cannot provide household services during those periods. An individual living in an apartment who does not own a car probably does not drive others around or maintain a car or house. Facts specific to an individual take precedence over group averages, but only when there is a reasonable basis to deviate from standard assumptions. It is not reasonable to assume more or fewer hours of household services simply because a plaintiff or their family members report it in answers to direct questions.

It is important to consider how the household services a person provides will change and diminish as they reach and exceed healthy life expectancy. Services change as children age and leave home. Services also change as the plaintiff ages.

Plaintiff. The plaintiff attorney should support a loss of household services claim by interviewing the plaintiff to establish the difference between the tasks the plaintiff could perform before and after the event. While it may seem tedious to ask questions about each task, doing so will allow an economist to accurately calculate the replacement cost of each task. The RPC Questionnaire will facilitate this interview.

The plaintiff’s attorney should interview the plaintiff or survivors early in the case and document the answers. These answers should be updated if the plaintiff’s condition changes before trial. The responses should be shared with the plaintiff’s expert witnesses: economist, life care planner and vocational expert. The injured party or survivors may benefit from reviewing their responses before giving their depositions.

Defense. The defense attorney should ensure that the plaintiff is not credited for lost household services not performed before the event, lost household services which can still be performed in part or in whole, or lost household services which can be replaced for less time than the plaintiff spent. The RPC Questionnaire will also help the defense attorney obtain the information need to evaluate the plaintiff’s claim for lost household services. The questions can be asked in interrogatories and at the depositions of the injured person or survivors, of treating and consulting physicians, and of the plaintiff’s damages experts.

Deposition questions should particularly focus on the tasks with the most hours for the injured person’s demographic group. Review The Dollar Value of a Day to see which tasks these are for a specific case. For example, for most male plaintiffs, the subcategory of Household Production with the greatest hours spent is Pets, Home, and Vehicles, while for most female plaintiffs, the subcategory with the greatest hours spent is Inside Housework. It makes sense then to focus questions on tasks like lawn work or sweeping the garage for male plaintiffs, and on tasks like doing the laundry and sweeping the interior of the home for female plaintiffs.

When an injured person says he or she can no longer perform certain household services, detailed questions may show there are tasks they can still perform with or without accommodations. For example, a person who can no longer walk around a grocery store due to an orthopedic injury, may be able to shop with a motorized scooter. An injured person may not play sports with his or her children as they did pre-event, but they can still supervise their children and help with homework. A plaintiff with a traumatic brain injury may be unable to safely use a stove or oven, but may be able to cook using a microwave. An individual with difficulty bending, squatting, or stooping may be unable to load a dishwasher or put dishes away, but may be able to wash dishes by hand. Establishing these facts in deposition allows a defense economist or life care planner make more reasonable estimates of lost household services.

When a plaintiff cannot perform a task, the cost of a purchased service does not require the same number of hours the injured party spent. If the injured party spent five hours per week cleaning, a professional cleaning service may take much less time to complete the same task.  This is especially true for retired persons, where The Dollar Value of a Day may reflect large time expenditures for simple tasks such as routine lawn care. Questions about the task performed and how frequently it was performed generate much better estimates of replacement costs than questions about how many hours the plaintiff recalls spending on the task. For retired individuals, some household services, such as gardening, may become hobbies more than household services. For these reasons, RPC does not rely on time estimates for retired persons from The Dollar Value of a Day. Instead, RPC assumes a continuation of the time spent on activities before retirement unless there is a reliable reason to assume otherwise.

A few questions about the injured person’s post-event condition are the most useful in accurately calculating lost household services if longer, detailed questioning is impossible. These key questions are:

• What activity restrictions has a physician given the injured person?
• Is the plaintiff able to drive?
• Is the plaintiff able to supervise children (if applicable)?
• Does the plaintiff require supervision around dangerous objects, like a stove?

Summary

Often, loss of household services can be a significant element of damages. Getting as much information as possible from the plaintiff will allow for more accurate calculations, and a stronger argument for the loss actually incurred. The RPC Questionnaire on lost household services can assist plaintiff and defense attorneys to gather the necessary facts.

[1] Expectancy Data, The Dollar Value of a Day: 2017 Dollar Valuation. Shawnee Mission, Kansas, 2018.

[2] Bureau of Labor Statistics, American Time Use Survey, available from www.bls.gov/tus

[3] Bureau of Labor Statistics, Occupational Employment Statistics, available from www.bls.gov/oes

[4] Expectancy Data, p. 5-6.