In a personal injury lawsuit, an injured party (plaintiff) is entitled to recover all the damages caused by the negligent act, provided that the plaintiff establishes, by preponderance of evidence, a causal relation between the injury and the physical condition, which he claims resulted from it. Under the law of damages, insofar as money can do it, the plaintiff is entitled to receive fair, just and reasonable compensation for all injuries and losses, past and future, which are proximately caused by the defendant’s proven negligence. Negligence is a proximate cause of a loss or injury if it is a substantial factor in bringing that loss or injury about.
The law imposes certain rules to govern the award of damages in any case where liability is proven. Just as the plaintiff has the burden of proving liability by preponderance of the evidence, he has the burden of proving his entitlement to recover damages by preponderance of the evidence. Thus, the plaintiff must prove (1) the nature and extent of each particular loss or injury for which he seeks to recover damages and (2) that the loss or injury in question was proximately caused by the defendant’s negligence.
Once the plaintiff has proved the nature and extent of his compensable injuries and losses, it becomes the jury’s job (or the court’s if there is no jury) to determine what is fair, just and reasonable compensation for those injuries and losses. There is often no mathematical formula in making this determination. Instead, the jury (or the judge) must use human experience and apply sound common sense in determining the amount of the verdict.
In a personal injury action, there are two general types of damages: economic and noneconomic damages. Economic damages are monies awarded as compensation for monetary losses and expenses, which the plaintiff has incurred, or is reasonably likely to incur in the future, as a result of the defendant’s negligence. They are awarded for such things as the cost of reasonable and necessary medical care and lost earnings. Noneconomic damages are monies awarded as compensation for non-monetary losses and injuries, which the plaintiff has suffered, or is reasonably likely to suffer in the future, as a result of the defendant’s negligence. They are awarded for such things as physical pain and suffering, mental and emotional pain and suffering, and loss of diminution of the ability to enjoy life’s pleasures.
Following are recoverable economic and noneconomic damages in a personal injury case:
Medical Care and Expenses
The plaintiff is entitled to recover the reasonable value of medical care and expenses incurred for the treatment of injuries sustained as a result of the defendant’s negligence. The plaintiff must prove that the expenses he claims were reasonably necessary and proximately caused by the defendant’s negligence.
Loss of Earnings or Earning Capacity
The plaintiff is also entitled to recover any lost earnings that he proves to have been proximately caused by the defendant’s negligence. With respect to lost earnings up to the present time, the plaintiff must prove that the defendant’s negligence has prevented him from receiving the earnings for which he seeks compensation. He must do so by establishing a reasonable probability that his injury brought about a loss of earnings. The evidence must establish a basis for a reasonable estimate of that loss.
Loss of Earning Capacity
The plaintiff is also entitled to damages for the loss of future earnings based upon the evidence as to what he probably could have earned but for the harm caused by the defendant’s negligence and as to what the plaintiff can now earn through the earning period of his life.
Mental Distress and Suffering
A plaintiff who is injured by the negligence of another is entitled to be compensated for mental suffering caused by the defendant’s negligence for the results that proximately flow from it in the same manner as he is for physical suffering. Included within this class of damages is the fear that death will result from an injury, if the jury concludes the plaintiff honestly had this fear.
Loss of the Ability to Enjoy Life’s Pleasures
The jury must consider, as a separate category for awarding damages in this case, the length of time the plaintiff was, or will probably be, disabled from engaging in activities which he enjoys.
Permanent Impairment or Loss of Function
If the jury finds that it is reasonably probable that the plaintiff has suffered permanent physical harm, loss of function or disfigurement, he is entitled to be compensated for that category of injury. The award should be in accordance with the nature and extent of such physical impairment, loss of function, or disfigurement and the length of time he is reasonably expected to endure its negative consequences. Evidence such as age, health, habits, and physical condition may also be considered.
The jury may also assess fair compensation for any disfigurement such as scaring. It must take into consideration any reasonable probability that the disfigurement will be less noticeable as time goes on and also taking into consideration any mortification and anguish the plaintiff has suffered and will in the future suffer.
The plaintiff is entitled to full compensation for all injuries and losses proximately caused by the defendant’s negligence even though those injuries and losses are more serious than they otherwise would have been because of a pre-existing condition. The jury may not compensate the plaintiff for the pre-existing injury itself. But, the aggravation of such an injury, proximately caused by the defendant’s negligence, is a proper item of noneconomic damages.
Damages for Death
Damages for death are allowed as compensation for the destruction of the decedent’s capacity to carry on life’s activities, including his capacity to earn money. It is the sum that would have compensated the deceased so far as money could do for the destruction of his capacity to carry on life’s activities, as he would have done had he not been killed, including the destruction of his earning capacity.
Loss of Consortium
The law allows damages for the loss of consortium. These are damages due a spouse because of injuries to the other spouse. “Consortium” encompasses the services of the spouse and the variety of intangible relations that exist between spouses living together in marriage. These intangibles are generally described in terms of affection, society, companionship, and sexual relations. They have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid, that are legally recognizable, protected rights arising out of he civil contract of marriage.