If you’re considering filing a personal injury lawsuit over a car accident, slip and fall, or any other kind of injury, you may be wondering “What is my case really worth?” The answer comes down to “damages” — figuring out what your injuries have cost you monetarily, physically, and mentally (and, in some cases, whether the defendant’s conduct should be punished).
In a personal injury case, money damages are paid to an injured person (the plaintiff) by the person or company who is found to be legally responsible for the accident (the defendant or their insurer). A damage award can be agreed upon after a negotiated settlement — among the parties, their insurance companies, and their attorneys, for example — or may be ordered by a judge or jury following a court trial.
Below you’ll find an explanation of the different kinds of damages that are common in many personal injury cases and how a personal injury damages award can be affected by the plaintiff’s action (or inaction).
Compensatory Damages in Personal Injury Cases
Most personal injury damages are classified as “compensatory,” meaning that they are intended to compensate the injured plaintiff for what was lost due to the accident or injury. A compensatory damages award is meant to make the injured plaintiff “whole” again from a monetary standpoint (to the extent that’s possible). This means trying to put a dollar figure on all the consequences of an accident. Some compensatory damages are relatively easy to quantify — like reimbursement for property damage and medical bills. But it’s harder to place a monetary value on pain and suffering or the inability to enjoy hobbies because of physical limitations caused by lingering accident-related injuries.
Here’s a rundown of the different types of compensatory damages that are common in many personal injury cases.
Medical treatment. A personal injury damages award almost always includes the cost of medical care associated with the accident — reimbursement for treatment you’ve already received and compensation for the estimated cost of medical care you’ll need in the future because of the accident.
Income. You may be entitled to compensation for the accident’s impact on your salary and wages — not just income you’ve already lost but also the money you would have been able to make in the future, were it not for the accident. In personal injury legalese, a damage award based on future income is characterized as compensation for an accident victim’s “loss of earning capacity.”
Property loss. If any vehicles, clothing, or other items were damaged as a result of the accident, you’ll likely be entitled to reimbursement for repairs or compensation for the fair market value of the property that was lost.
Pain and suffering. You may be entitled to get compensation for pain and serious discomfort you suffered during the accident and in its immediate aftermath — also for any ongoing pain that can be attributed to the accident.
Emotional distress. Usually linked to more serious accidents, emotional distress damages are meant to compensate a personal injury plaintiff for the psychological impact of an injury — including fear, anxiety, and sleep loss. Some states consider emotional distress as part of any “pain and suffering” damage that is awarded to a personal injury plaintiff.
Loss of enjoyment. When injuries caused by an accident keep you from enjoying day-to-day pursuits like hobbies, exercise, and other recreational activities, you may be entitled to receive “loss of enjoyment” damages.
Loss of consortium. In personal injury cases, “loss of consortium” damages typically relate to the impact the injuries have on the plaintiff’s relationship with their spouse — the loss of companionship or the inability to maintain a sexual relationship, for example. Some states also consider the separate impact on the relationship between a parent and their child when one is injured. In some cases, loss of consortium damages are awarded directly to the affected family member rather than to the injured plaintiff.
Punitive Damages in Personal Injury Cases
In cases where the defendant’s conduct is deemed particularly egregious or outrageously careless, a personal injury plaintiff may be awarded punitive damages on top of any compensatory damages award. Punitive damages stem from a rationale that is quite different from the justification tied to compensatory damages, which attempt to “make someone whole.”
Punitive damages are awarded to the injured plaintiff, but the real goal of these kinds of damages is to punish the defendant for its conduct — to “hit them in the pocketbook,” so to speak — and to act as a deterrent. Since it isn’t unusual for punitive damage awards to top tens of millions of dollars, most states have set some type of cap on punitive damage awards in personal injury cases.
How Plaintiff’s Actions (or Inaction) Can Affect a Damages Award
In some cases, an injured person’s role in causing an accident — or their inaction after being injured — can diminish the amount of damages available in a personal injury case.
Comparative negligence. If you’re at fault (even partially) for the accident that caused your injuries, chances are that any damage award will reflect that. That’s because most states adhere to a “comparative negligence” standard that links damages to degree of fault in a personal injury case.
Contributory negligence. In the small handful of states that follow the concept of “contributory negligence” for personal injury lawsuits, you may not be able to recover any compensation at all if you’re deemed partially to blame for the accident.
After the accident: failure to mitigate damages. The law in most states expects plaintiffs in personal injury cases to take reasonable steps to minimize or “mitigate” the financial impact of the harm caused by the accident. If an injured plaintiff just sits back and rests on their proverbial laurels when it isn’t reasonable to do so (by failing to get necessary medical treatment after an accident, and making their injuries much worse, for example) a damages award might be significantly reduced.
Republished with Permission © 2014 Nolo.com