• David Omer

Damages: Not Just A Fantastic TV Show

This article builds off of the last article on Personal Injury Basics. If you haven't read that article yet, then this one is going to leave you confused and possibly depressed. Don't risk it. Read the Basics article first.

If you love litigation and you're looking for a new show to binge-watch, this one might be just the ticket. Glenn Close is great and it's just a really entertaining show. The more you know!

Anyway, I digress. We know from previous articles that a good personal injury case will possess some degree of (i) liability, (ii) damages, and (iii) coverage. Remember the PI stool and how it falls over if one of the legs is weak or missing? Well, one of those legs is damages, and it's just as important as the other two. Your claim can have crystal-clear liability and astronomical policy limits, but none of that will matter if you don't have calculable damages.

So what are damages? In an action for negligence, which is almost universally what a personal injury claim will be, the plaintiff's damages are going to be whatever amount is necessary to place him in the position he was in the moment before he was harmed by the defendant's negligent act or omission. Way back in 1966, the North Carolina Supreme Court aptly described personal injury damages as follows:

In cases of personal injuries resulting from defendant’s negligence, the plaintiff is entitled to recover the present worth of all damages naturally and proximately resulting from defendant’s tort. The plaintiff, inter alia (that means “among other things”), is to have a reasonable satisfaction for actual suffering, physical and mental, which are the immediate and necessary consequences of the injury. The award is to be made on the basis of a cash settlement of the plaintiff’s injuries, past, present, and prospective. In assessing prospective damages, only the present cash value or present worth of such damages is to be awarded as the plaintiff is to be paid in advance for future losses.

As you can see, "damages" is a really broad term. For our purposes it can include everything from medical bills to lost wages to the costs of fuel and wear and tear on your car from going back and forth to the physical therapist. We generally split damages into two distinct groups: "special" damages and "general" damages.

Special damages (or "economic" damages) are the objective side of the equation. This is going to encompass expenses that you can put on paper; medical bills, co-pays, prescriptions, lost wages, fuel and wear and tear, et cetera. Because you only get one "bite at the apple" when you're seeking to recover, it's highly important that your special damages calculation include every penny that you've spent as a direct (or proximate) result of the at-fault party's negligence.

By way of example, let's say that your car was rear-ended at a stop sign, resulting in a neck strain, broken collarbone, and a concussion. You missed the next three days at work, where you earn an average of $100 per day. You also incurred a total of $12,000 in medical bills, paid $500 in co-pays and $300 in prescription costs, and spent $60 in fuel while you were going to your various doctor appointments. Your special damages calculation should include all of those expenses, for a total of $13,160. *Note that you'll need a lost wage verification in order to recover your lost wages. I'll cover this in a later article.

General damages, the other side of coin, are subjective and somewhat speculative. This measure of damages will generally encompass things like physical pain, emotional suffering, mental anguish, and decreased quality of life. If your spouse were to bring a claim for loss of consortium, that would fall under a general damages theory as well, and you can also look at things like permanent injuries and lost earning capacity. Obviously the value of these types of damages are harder to pinpoint, because they don't exist on paper the way that special damages do. So how do you go about calculating general damages?

In 1962, the North Carolina Supreme Court gave us some valuable guidance in the case of Dunlap v. Lee. In that case, the Court said that "[t]he question in any given case is not what sum of money would be sufficient to induce a person to undergo voluntarily the pain and suffering for which recovery is sought or what it would cost to hire someone to undergo such suffering." The proper question, instead, is "what, under all the circumstances, should be allowed the plaintiff in addition to the other items of damage to which he is entitled, in reasonable consideration of the suffering necessarily endured." In other words, the jury needs to look at every relevant fact and make a decision as to what the plaintiff is entitled to, rather than playing the fanciful game of trying to guess how much they would have to pay someone to go through the same pain and suffering. This can and does turn into a crapshoot, and there isn't a cap on pain and suffering judgments in North Carolina, but courts are vested with the authority to overturn grossly excessive awards.

Some states use a system called "multipliers" to calculate general damages. This system is fairly self-explanatory; you take the special damages award, multiply it by anything from two to five based on the severity of your injuries, and call the result your general damages award. So let's assume that your special damages amount is $10,000. If somebody tapped your rear bumper in the Drive-Thru and you were all better after a week, you might multiply by two to arrive at a general damages award of $20,000. If you got run over by a log truck and still had debilitating pain a year later, you might multiply by five to arrive at a general damages award of $50,000. North Carolina doesn't recognize the use of multipliers, but they can still be a handy tool in settlement negotiations, or for trying to predict what a jury might do with your particular fact pattern.

So now you know. Damages is a good show, and it's also a vitally important part of your personal injury claim. If you have any questions, give me a shout!

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