Chapter 10

DAMAGES

Every personal injury lawyer knows that having “good damages” in a case is as important as having “good liability.” This chapter examines the various components of damages that may be recovered in a persona injury action. The key concepts are:

• Actual injury required:  In a negligence action, P must generally show that he suffered some sort of physical harm (so that he cannot recover damages if he suffered only mental harm with no physical symptoms, and cannot recover nominal damages). But once physical harm has been proven, a variety of damages may be recovered, including the value of any loss of bodily functions, out-of-pocket economic losses, pain and suffering, “hedonistic” damages, and more.
• The collateral source rule:  Under the “collateral source rule,” P is entitled to recover her out-of-pocket expenses, even if she was reimbursed for these losses by some third party (e.g., an insurance company).
• Mitigation:  P has a “duty to mitigate.” That is, P cannot recover for any harm which, by the exercise of reasonable care, he could have avoided (e.g., any harm caused by P’s failure to seek prompt medical assistance). Some courts also deny P recovery where he fails to take advance safety precautions that worsen his injuries (e.g., he doesn’t wear a seat belt).
• Punitive damages:  Punitive damages can be awarded to penalize a defendant whose conduct is peculiarly outrageous. In a negligence case, D’s conduct must generally be “reckless” or “willful and wanton.”
• Recovery by spouse or children:  Most states allow the spouse, parent or child of an injured person to recover for the losses that they have suffered. (For instance, a spouse of the injured person may recover for loss of companionship or loss of sex; this is called “loss of consortium.”)
• Wrongful death and survivor actions:  Most states provide that when an accident victim dies, his estate may sue for those elements of damage that the victim himself could have sued for (a “survival” action); such actions typically include the decedent’s pain and suffering before death. Most states also have “wrongful death” statutes, which allow a defined group (typically the decedent’s spouse and children, or if she has none, her parents) to recover for the losses they have sustained by virtue of the decedent’s death.