McDougald v. Garber

Brief Fact Summary.

Garber’s malpractice left McDougald permanently comatose.

Synopsis of Rule of Law.

Cognitive awareness is a prerequisite to recovery for loss of enjoyment of life.

Facts.

Garber’s malpractice left McDougald permanently comatose.

Issue.

Does an award of damages for loss of enjoyment of life to a person whose injuries preclude any awareness of the loss serve a compensatory purpose?

Should loss of enjoyment of life be considered a category of damages separate from pain and suffering?

Held.

Reversed with a new trial ordered as to non-pecuniary damages.

No, an award of damages for loss of enjoyment of life to a person whose injuries preclude any awareness of the loss does not serve a compensatory purpose.

No, loss of enjoyment of life should not be considered a category of damages separate from pain and suffering.

Dissent.

Justice Titone

Loss of enjoyment of life is an objective damage item distinct from conscious pain and suffering.

Tort damages compensate the wronged party for the actual loss sustained. Loss of enjoyment of life is at least as serious an impairment as loss of limb, which has always been treated as a compensable item under traditional tort principles.

Awareness should not be required, as the impairment exists independent of the victim’s ability to apprehend it, and it is totally acceptable for third parties to receive the compensation on behalf of the plaintiff who can no longer experience any enjoyment of life. It is grossly unfair to deny recovery to plaintiffs rendered completely without cognitive capacity but allow recovery to plaintiffs with a mere spark of awareness.

Damages for pain and suffering include a victim’s emotional responses, like frustration and anguish. In contrast, damages for loss of enjoyment of life covers the victim’s limitation of life’s activities and inability to participate in activities. Arguing that separation of the two damage items would be confusing and difficult to do is insulting to the jury.

Discussion.

I. Does an award of damages for loss of enjoyment of life to a person whose injuries preclude any awareness of the loss serve a compensatory purpose?

In cases of negligence, damages serve to restore the victim to the position they would have been in but for the injury. Purely punitive damages in cases of negligence are prohibited unless the harmful conduct is intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence.

Although pain and suffering do not come with a quantifiable economic value, we recognize that non-pecuniary damages are the best we can do to right the wrong and create a measure of solace.

But awarding non-pecuniary damages in this case does nothing to better compensate McDougald for her loss. Instead, it is a temptation to punish Garber in proportion to the harm inflicted. This retributive symmetry is prohibited in the context of civil damages, though it could be pursued under criminal law.

The correct standard is to require “some level” of awareness, leaving room for interpretation on the phrase.

II. Should loss of enjoyment of life be considered a category of damages separate from pain and suffering?

Traditionally, courts have viewed loss of enjoyment of life as one, permissible factor of many in assessing pain and suffering. Loss of enjoyment of life should be distinguished from pain and suffering only if doing so would lead to a more accurate evaluation of the compensation due to a plaintiff, but non-pecuniary damages by nature can never be precise enough to validate such a distinction.