September 18, 2017
Damages: The Fourth Element in a Personal Injury Case
In the previous four blogs we discussed the 3 parts of a personal injury case: 1) duty, 2) breach of duty and 3) causation of a harm. This brings us to #4: DAMAGES. Obviously, without damages there is no point in filing a personal injury lawsuit in the first place.
If you weren’t harmed by the other person’s negligence, then there is no point in pursuing the matter further. For example, in theory someone might want to sue another person for negligently driving and cutting him off and almost causing an accident, but there is no “almost” when it comes to damages. The fact that someone could have been hurt, a car could have been wrecked or someone could have died isn’t a damage. We are just glad it didn’t happen.
In order to have a personal injury claim you must have an actual harm and in the legal profession this is referred to as damages. There are common types of damage claims arising from a personal injury and there are less common claims. Damages are divided into two broad categories: Compensatory Damages and Punitive Damages.
Most claims for personal injuries are for compensatory damages. These are damages meant to make a party whole or put the injury victim in the place he was prior to the injury happened. For example, when there has been a car accident, it is common to claim property damage, car repair costs, replacement of a child safety seat, rental car costs, and loss of use of a motor vehicle after a wreck. Other common claims for personal injury accidents are medical bills, mental anguish, pain and suffering, loss of enjoyment of life and lost wages. These damages arise in almost every personal injury claim.
There can also be less common claims for damages. These may be claims like loss of consortium (loss of a relationship of some type) and wrongful death (where the injury victim dies due to negligence). There are also claims for future medical bills and future pain and suffering, scarring and disfigurement or funeral or burial expenses.
The second class of damages are punitive damages. These are less common than compensatory damages but are becoming more common. Punitive damages arise when the damages or harm is caused by the reckless or intentional conduct of another person. These are damages designed to punish the person who caused the damages or to send a message to the people who act recklessly in an attempt to deter future behavior of this type. This is commonly seen in DWI car accidents. It is black letter law in New Mexico that a drunk driver who causes a crash is liable for punitive damages arising from his reckless conduct.
Determining damages in any particular lawsuit is complex and determined by many factors. It is probably the most difficult aspect of most personal injury cases. Some damages are often intangible and can only be determined after a careful examination of all of the different aspects of an individual case.
The purpose of compensatory damages is to place the injured victim in the position that with the help of an economic expert, a judge or jury in a personal injury case can assign a value to such intangible and in some sense irreplaceable forms of loss.
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