Damages For Physical Harm
Edward J.Kionka,Torts in a Nutshell,1992 (Excerpt)
Compensatory Damages
When defendant’s tort injures plaintiff’s person or property,his basic remedy is compensatory money damages.In almost all cases,this will also be his only remedy.
The common law rules of damages for physical harm reflect three fundamental ideas:
1.Justice requires that plaintiff be restored to his pre-injury condition,so far as it is possible to do so with money.Thus,he should be reimbursed not only for his economic (“out-of-pocket”) losses,but also for his noneconomic damage (loss of physical and mental well-being).
2.Most noneconomic losses are capable of being translated into dollars.
3.When plaintiff sues in tort for any injury which he has sustained,he must recover all of his damages arising from that injury,past and future,in a lump sum and in a single lawsuit.
General vs.Special Damages
For purposes of pleading and proof,there is a distinction between general damages and special damages.General damages are those awarded for harms and losses which are a natural and usual consequence of the tort and injury asserted.These harms and losses may be proved even though plaintiff did not specifically allege them in his complaint.For example,a battery which causes bodily harm normally results in physical pain,and so “pain and suffering” may be proved under a complaint for a battery which alleges only that plaintiff suffered “great bodily harm” or a “broken leg.” Special damages are those awarded for all other compensable harms and losses.Such harms or losses must be specifically pleaded so that defendant will be on notice that damages for them will be claimed.Medical expenses,lost wages,and damages for any unusual effects of the injury (e.g.traumatic neurosis) are illustrations of special damages in a personal injury case.
Which items of damages are general and which are special depends,of course,on (1) the tort and (2) the general or specific injuries alleged.No hard and fast rules can be laid down,nor are they necessary for our purposes.Note,however,that in personal injury cases it has become common usage to refer to all plaintiff’s economic or out-of-pocket losses as “special damages” or simply “specials,” and to his noneconomic losses (such as pain and suffering) as his “general damages,”irrespective of the allegations in the pleadings.Although technically inaccurate,this usage sometimes appears in judicial decisions and other legal writing.Nominal Damages.
If plaintiff establishes defendant’s liability for some tort but is unable to prove any actual damages,nominal damages may be awarded.As the name implies,they are damages in name only,usually one cent or six cents or one dollar.Such awards are largely confined to the intentional torts (e.g.,trespass to land)where actual damages need not be alleged or proved.Occasionally they may be given in other cases where plaintiff proves that he sustained some actual damage but is unable to establish the amount.Damages for Personal Injury.
As a general proposition,when plaintiff proves a compensable injury to his person,he may recover for all adverse physical and mental consequences of that injury.While the specific elements of damage for which recovery may be had vary somewhat among the torts,and will differ a little from one jurisdiction to the next even for a particular tort,the following types of harms are commonly compensable.
(1) Economic Loss.Past and future pecuniary losses and out-of-pocket expenses proximately caused by the injury are recoverable,including (a) reasonable medical expenses (doctor,hospital,nursing,tests,medicines,devices,physical therapy,and travel to obtain these services);(b) lost wages,earnings or profits;(c) the cost of substitute labor hired to do work which plaintiff cannot perform because of his injury;and (d) the cost of custodial care,if any,required because the injury has left plaintiff more or less incapable of caring for himself.
Future losses and expenses need not be established to a certainty,either as to their incidence or amount.The jury need only find it more probable than not that they will be incurred and have some reasonable basis beyond sheer speculation for their computation.Thus,where the injury impairs plaintiff’s earning capacity,she may recover for future lost earnings even though not employed at the time of her injury if the jury can find that more probably than not she would be employed in the future and can determine the probable type of employment and rate of earnings.It may take into account probable future wage increases.In the case of a child,it may even find that she probably would have gone to college and obtained skilled employment,if such a finding is supported by some evidence.
Impaired earning capacity is frequently a subject of expert testimony by an economist or actuary.
(2) Physical Pain.Past and future physical pain – commonly referred to as“pain and suffering” – is compensable.Within broad limits,its valuation is left largely to the jury’s discretion.
An oft-debated question is whether plaintiff should be permitted to use the so-called “per diem” argument to the jury in which he suggests that his past and future pain be valued in units of time (e.g.,$20 per day,$2 per hour) or whether he should be limited to suggesting a lump sum for such damages.The authorities are split,with a substantial minority refusing to allow the “per diem” argument on the ground that it enhances the effects of sympathy and lends a spurious sense of accuracy to what is fundamentally sheer speculation.
(3) Mental Distress.In addition to physical pain,most courts will permit plaintiff to claim damages for some or all of the following mental harms: (a) fright and shock;(b) anxiety about the future,both physical (e.g.,premature death,physical disability,illness,the effect on plaintiff’s unborn child) and economic(whether for himself or others),unless plaintiff’s fears are clearly unfounded and unreasonable;(c) loss of peace of mind,happiness,or mental health,ranging from depression through neuroses and psychoses;(d) humiliation,loss of dignity or embarrassment caused by the physical injury,disability or disfigurement;(e)mental distress resulting from loss of the ability to enjoy a normal life;(f) inconvenience caused by the injury.
(4) Physical Impairment.In lieu of compensation for the mental distress caused by a physical impairment of plaintiff’s body,some jurisdictions purport to base compensation on the physical impairment itself.In other words,where the injury impairs (temporarily or permanently,partially or totally) his eyesight,hearing,use of an extremity,consciousness,ability to conceive or bear children,or any other bodily function,or where plaintiff is disfigured,the jury is told to value and compensate that loss as such and not merely its mental consequences.(Such compensation is,of course,in addition to that awarded for any economic loss and pain resulting from that injury.) Of course,as a practical matter it probably makes little difference whether the jury is instructed to base compensation on the physical impairment or its mental effects,since in either case it is in reality the latter which is being valued.Pre-existing Conditions.
As previously discussed,defendant’s liability for damages is not mitigated by the fact that some pre-existing physical infirmity of the plaintiff was responsible for all or part of the consequences of plaintiff’s injury by defendant.If plaintiff is especially predisposed or vulnerable to some illness or injury,defendant whose tort precipitates it is liable for the harm it causes even though under the same circumstances a normal person would not have suffered that illness or injury.The same is true where the injury re-activates a previous condition which had been brought under control,or aggravates an existing condition.
A corollary rule is that defendant is liable for the aggravation during treatment of plaintiff’s injuries,even where such aggravation is due to the negligence of another,so long as plaintiff exercised reasonable care in selecting those in whose care he placed himself.
Present Value.
If plaintiff is awarded damages for losses which he will incur in the future,he will be overcompensated unless these damages are figured at their present value,due to the fact that (1) they are received by him in a lump sum at the conclusion of the trial,and (2) money will earn interest.For example,assume that plaintiff is awarded $1,000 to compensate him for lost income which,but for his injury,he would have earned ten years in the future.Presumably he can now take that $1,000 and invest it at,say,six per cent interest.Thus,ten years hence he will have not$1,000 but $1,791.Therefore,in order to provide him with $1,000 ten years from today,that $1,000 must be discounted to its present value – a sum which together with the interest (compounded) which it will earn,will equal $1,000 in ten years.At a discount rate of six per cent,this would be about $558.
Inflation.
Today,as we have realized,the interest rates include an inflation factor,and therefore it would be inequitable to reduce future damages to present cash value while denying the benefits of that same inflation to the plaintiff.Thus,courts will allow inflation to be the subject of evidence and argument.It is held that inflation may offset the discount rate they cancel each other out,so that plaintiff’s future economic loss is simply not reduced to its present value.
Collateral Source Rule.
As a general rule,plaintiff may recover the reasonable value of the expenses,services and lost time from work attributable to his injury (e.g.,doctors’ fees,hospital and other medical expenses,his wages while absent from his employment),even though he did not in fact pay for them (as where they were furnished as a gift or as a matter of professional courtesy) or he was reimbursed for such expenses from a collateral source (that is,a source other than defendan t or which defendant did not fund).Examples of these collateral sources include private health and accident insurance,workers’ compensation,social security,disability insurance,wage continuation plans,sick leave,veterans’ benefits,and public aid.(Distinguish payments received from or on behalf of a joint tortfeasors in settlement of his potential tort liability to plaintiff for the same injury;defendant is credited with these payments.) The justification for the rule is that it would be more unjust to give defendant the benefit of these payments than to permit an innocent plaintiff to recover them twice,especially since in most cases plaintiff himself arranged for the collateral benefits and paid for them.(There is,of course,no double recovery where plaintiff must repay the collateral source out of the judgment he obtains from defendant,as in the case of benefits received from the workers’ compensation,public aid,and the military services.)
Some courts even allow the recovery of the value of nursing services gratuitously furnished plaintiff by friends and relatives,on the ground that defendant is not entitled to the benefit of these services.
The collateral source rule is not without its critics,and courts occasionally allow exceptions to it,but in general it appears too well established and accepted to be changed except by statute.Some automobile accident compensation acts modify or abolish it,but otherwise there is as yet no discernible movement to do so by statutes of general application.(https://www.daowen.com)
Mitigation.
Under the doctrine of avoidable consequences,plaintiff is required to make reasonable efforts to mitigate the consequences of his injury and to take steps to prevent further harm,and defendant is not liable to the extent that he fails to do so.For example,absent some legitimate reason for not doing so,plaintiff is required to make a reasonable effort to seek medical treatment for his injuries.
In some jurisdictions,this is extended to include safety precautions required or available prior to the injury,such as the wearing of seat belts or safety helmets,and defendant is not liable for those damages attributable to plaintiff’s failure to make use of them.However,the majority rule is to the contrary.
Mere negligence in failing to mitigate damages is no defense to an intentional or reckless tort.
Of course,plaintiff may recover as an item of damages any expenses reasonably incurred in attempting to mitigate his harm,whether or not his efforts were successful,and also damages for further harm sustained as a result of reasonable efforts to mitigate his harm.
Conversely,where defendant’s tort caused harm but also conferred some benefit on plaintiff,that benefit may be considered in mitigation of plaintiff’s damages if it is equitable to do so.
Attorneys’ Fees and Litigation Costs.
The universal American rule (with exceptions not pertinent here) is that the prevailing party in litigation may not recover as damages his attorneys’ fees or other litigation costs in the absence of a statute expressly authorizing them.Statutes typically provide for the recovery of minor litigation expenses,such as filing and service fees,but little else.
This fact is often used to bolster arguments in favor of certain damages rules,such as the collateral source rule,the rule against a deduction for tax benefits,and damages for pain and suffering.It is said that any windfall which plaintiff receives as a result of these rules is more than offset by the fact that plaintiff must pay his own attorneys’ fees and most other expenses of litigation out of the award he receives.
Consequential Damages
Where defendant causes injury to the person of A,that injury will often cause damage to B.Such indirect or consequential damage to third persons will sometimes give rise to a separate cause of action.Such actions have generally been limited to spouses,parents,and the employer of the injured person,absent an intent to cause an injury to the third person.
Spouse.
At Common law,a husband was entitled to the domestic services of his wife,and to the earning from her employment outside the home.Accordingly,when defendant’s tort physically injured or incapacitated the wife so that she was unable(temporarily or permanently) to perform them,the husband was given a cause of action for loss of her services.In time the measure of damages was broadened to include his loss of “consortium,” which consists of her society,companionship,affection,and sexual relations.
The wife,however,had no corresponding right to the services of her husband.She was entitled only to his support,and only he could recover for an injury which impaired his earnings or earning capacity.Hence,she had no action for loss of his services or by extension his consortium.
Beginning in 1844,Married Women’s Acts or Emancipation Acts were passed in all American jurisdictions giving married women a legal identity separate from their husbands.For a long time this had little effect on either the husband’s action or the denial of the wife’s action,except that (1) the wife alone could not recover for her lost earnings and (2) a few courts abolished the husband’s action,interpre-t ing the act to mean that the husband was no longer entitled to an action for loss of his wife’s services and throwing out with it his action for loss of consortium.
Most courts,however,continued to allow the husband’s action for loss of consortium and also for loss of domestic services actually performed.As the recognition of equal rights for women increased,so did criticism of the denial of a similar cause of action for the wife.A few courts yielded in the case of certain intentional torts.Finally,Hitaffer v.Argonne Co. (D.C.Cir.1950) overthrew the ban and recognized the wife’s action for harm to the marital relation caused by a negligent injury to her husband,and almost all jurisdictions have since followed suit,some with the aid of recent interpretations of the various constitutional prov-i sions on equal protection and equal rights.
Ordinarily either spouse may recover medical expenses which he paid or incurred as a result of a tortious injury to the other,to the extent that the injured spouse does not recover them in his own action.
Punitive Damages
If defendant’s wrongful conduct is sufficiently serious,tort law permits the trier of fact to impose a civil fine to punish him and to deter him and others from similar conduct in the future.Punitive damages – also called exemplary or vindictive damages or “smart money” – are not really damages at all (even though they are usually paid to the plaintiff) since presumably plaintiff has been made whole by the compensatory damages awarded in the same action.They are justified as(1) an incentive or reward for bringing defendant to justice,especially where plaintiff’s actual damages are so small that suit would otherwise be prohibitively expensive;(2) punishment for criminal or quasi-criminal offenses which often escape or are beyond the reach of the criminal law;(3) compensation for damages not normally compensable,such as wounded feelings and attorney’s fees and other expenses of litigation;and (4) the only effective means to force conscienceless defendants to cease practices known to be dangerous or tortious and which they would otherwise continue because it is more profitable to pay (or insure)compensatory damages for the harm they cause and continue them.
Punitive damages are of common law origin,but may be expressly allowed,prohibited,or regulated by statute.Generally they are not recoverable as a matter of right,but only in the discretion of the jury when justice and the public good will be served.
The common law of four states (Louisiana,Massachusetts,Nebraska and Washington) does not permit them.They may be recovered,however,even in those states if allowed by statute (e.g.,under the Massachusetts wrongful death act).A few states permit them primarily on the theory that they serve compensatory functions;in connecticut they are limited to the expenses of litigation.
To justify an award of punitive damages,defendant must have acted from a wrongful motive,or at least with gross or knowing indifference to the rights or safety of another.His conduct must have an element of outrage,similar to that which is a crime.An intentional tort usually will suffice.Most jurisdictions also allow them in cases of reckless or “willful and wanton” misconduct.Of these,some courts permit them whenever such conduct is found;others require,in addition,a finding of a kind of “malice,” which in this case means a conscious and deliberate disregard of a high probability of harm.Negligence,even gross negligence,is not enough,although some courts have defined the latter as synonymous with willful and wanton misconduct and as so defined sufficient to support punitive damages.A fortiori,strict liability in any form will not do.
In most cases,the fact that defendant’s conduct also happens to be a crime does not prevent the assessment of punitive damages in a civil tort action.The double jeopardy argument has totally failed,and so has the contention that such damages can violate constitutional due process guarantees because they impose quasi-criminal punishment without the accompanying safeguards and standards of proof required by criminal law and procedure.[3] But courts will occasionally look to the criminal fines for similar misconduct as guidelines when reviewing the excessiveness of punitive damages.
Plaintiff must ordinarily prove some actual damages as a prerequisite to an award of punitive damages.But proof is usually all that is required,and a verdict for compensatory damages is not an absolute necessity.An award of nominal damages will often support a verdict for substantial punitive damages,as where the tort is particularly offensive or outrageous but no substantial damage resulted from it.On the other hand,the courts will often (especially in personal injury or property damage cases) use the amount of the compensatory damages as a guideline in judging the excessiveness of the punitive damages,and sometimes require that there be a reasonable relation between their amounts,or at least between the character of the harm and the amount of the punitive damages.
Since the function of punitive damages is ordinarily punishment and deterrence,evidence of defendant’s financial circumstances is usually admissible as bearing on the amount of such damages which will be necessary to accomplish this purpose.The whole concept of punitive damages has always had its critics,and courts frequently state that such damages are not a favorite of the law and will be scrutinized with care.Until recently,however,such awards were relatively rare and were not ordinarily affirmed.But lately plaintiffs have been seeking such damages,and juries have been awarding them,with increasing frequency and sometimes in very large amounts.Thus,there is some indication that the courts are becoming increasingly watchful and may begin to place new limits on them.
One lively controversy concerns vicarious liability situations.A majority of jurisdictions have held that punitive damages may be assessed against an employer for any tort committed by his employee (within the course of the employment) for which punitive damages against the employee would be justified.But a substantial minority supported by the Restatement of Tort (§ 909) and Agency (§217C) do not allow punitive damages to be awarded against an employer based upon the acts of his employee,except where (1) the employer authorized the do-ing and the manner of the act,or (2) the employee was unfit and the employer was reckless in employing him,or (3) the employee was working in a “managerial capacity,” or (4) the employer or one of his managerial agents ratified or approved the act.These rules have particular significance in the case of corporations,which act exclusively through agents and employees.
Another problem arises where tortious conduct give rise to multiple claims,as where many items of the same product sold to the public have the same defect which causes injury to a number of persons.If there is no class action and all the claims are brought separately,it may be appropriate to limit or deny punitive damages in each case (and especially the later ones) in order to prevent astronomical liability.[4]
Another question of lively current interest is whether punitive damages are insurable.Assuming that the language of defendant’s liability insurance policy may fairly be read to cover them,is such coverage contrary to public policy and therefore void? On the one hand,it would be easy enough for the insurer to expressly exclude them,and its failure to do so may well have misled the insured.On the other hand,punitive damages are to punish and deter,and that purpose is substantially impaired (if not defeated) by permitting the wrongdoer to shift his punishment to his insurance company.There seems to be general agreement that where the liability for punitive damages is vicarious,as in the case of a corporate defendant,punitive damages are a business risk which may be insured,at least where the tort is not that of management and where the conduct was merely reckless and not an intentional wrong.There is a split of authority as to whether one may insure his own personal liability for punitive damages.The majority view seems to be that he may not,but a substantial minority of courts hold that he can if the tort was not willful.