The “Enlightened Barbarity” of Inclusive Fitness and Wrongful Death: Biological Justifications for an Investment Theory of Loss in Wycko v. Gnodtke

Wrongful death laws should permit and encourage courts and juries to consider the survivors’ investment in decedents when determining wrongful death damages, given new biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan’s courts in the early 1 960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and sociobiology, the investment theory of recovery accords with the goals of corrective justice as it restores plaintiffs to the resource state they were in prior to making an investment in the decedent and enables plaintiffs to reinvest those same resources in other relatives to recoup lost fitness.