Additional Parties Who Can
Recover Damages

Bystanders/Consortium
Claims

Calculating the
Amount of Damages

Collateral
Sources

Economic v.
Noneconomic Damages

Excessive
Awards

Litigation
Costs

Medical Expenses

Pain
and Suffering

Permissible
Jury Arguments

Property
Damage

Punitive
Damages

Special
damages

Types of Recoverable Damages

Wrongful
Death

Wrongful
Birth / Wrongful Life

Additional Parties Who Can Recover
Damages

Most
tort suits involve a claim by the person who was directly injured by the
defendant's negligence:  in an
intersection collision case, the person struck and injured by the defendant
will seek recovery for her injuries.
In addition to the party directly injured, other parties may claim
damages as a result of the defendant's negligence.  The need to recognize such claims is
most apparent in wrongful death cases, where the direct victim is incapable of
being compensated.  In addition,
however, tort law has tried to strike an appropriate balance between
compensating real injuries on the one hand and avoiding the extension of tort
liability beyond manageable limits.
For example, most jurisdictions recognize the right of a spouse to
recover for loss of consortium--the society and companionship of the spouse,
along with the economic and social costs that are associated.  On the other hand, to extend the came
right of recovery to any member of the immediate victim's family would greatly
multiply the number of lawsuits handled by the system.

Bystanders/Consortium
Claims

Bystanders.  Those who were are present at a gruesome
accident and are emotionally traumatized often claim damages even if they
themselves were not physically hurt.
These claims are sometimes called "parasitic" because they
depend upon the existence of a valid claim by the direct victim of the
accident.  Over time the law for
bystanders has evolved from an impact rule (requiring the plaintiff to be
touched in order to be eligible to recover) to a zone of danger rule (allowing
a recovery to those who could have been injured by the defendant's negligence)
to one which weighs the factual circumstances to determine foreseeability
(e.g., Dillon v. Legg).  However,
the law in this area is unsettled.

Consortium.  Most jurisdictions permit recovery by a
spouse for loss of "consortium"--literally, the society (and
companionship) with the direct victim.
Claims for loss of consortium have also been brought by other family
members, but with less success in most jurisdictions.  Claims by family members other than
spouses are often tied in with bystander claims; the family member can recover
if they were present at the accident scene.

Calculating
the Amount of Damages

Even
where the categories of recoverable damages have been determined, and the eligible
parties have been identified, it remains to set an actual dollar amount.  Several factors come into play to affect
this calculation.

Collateral
Sources

If
the plaintiff is compensated from a source other than a tortfeasor, the
traditional rule in most jurisdictions was that the defendants should not be
allowed to reduce their liability by such amounts.  For example, if the plaintiff received
health insurance benefits to pay for the medical costs following an accident,
the defendant would still be required to pay as though they had never been
received.  This sounds like
"double dipping," but in most cases the insurer was able to recover
(through subrogation) whatever they had advanced.  Reform statutes often altered that rule,
allowing the jury to hear evidence concerning benefits the plaintiff had
already received to pay for the injury, and reduce the defendant's liability
accordingly.

Types of Recoverable Damages

The
first task in assessing damages is to determine the types of damages that a
plaintiff can recover.  To some
extent this section also involves a determination of the threshold requirements
for recovering any damages at all.
The basic types of damages are:

Compensatory
Damages

Punitive
Damages

Economic
Damages

·
Property Damage

·
Lost
Wages

·
Medical
Expenses

Non-economic
damages

·
Pain and Suffering

In
addition to these categories, there are the costs of litigation that the winning
party would like to recover as part of the loss suffered by the plaintiff.  However, such costs are typically not
recoverable (see “Litigation Costs”)

Excessive
Awards

A
major emphasis of the tort reform movement was the claim that awards in
personal injury suits were excessive.
Many jurisdictions responded by enacting limitations on the total amount
of damages that could be recovered, particularly for pain and suffering.  Some of these "caps" were held
to be unconstitutional, either because of the right to a trial by jury, or
because they violated an "open courts" promise in the state
constitution.  Still other
jurisdictions found them an appropriate legislative response to the tort
crisis.

Litigation
Costs

Although
the tort system strives to calculate an award that will put the plaintiff back
to as good a position as he or she would have been in but for the injury, one expense
is routinely undercompensated:  the
cost of bringing a lawsuit to obtain compensation.  The "American Rule"
regarding attorney's fees requires each party in the litigation to pay its own
attorney's fees, whether they are successful or unsuccessful.  This has the effect of making it a less
risky venture to bring a lawsuit, or defend one, but it means that a victory is
less than complete:  a defendant who
successfully establishes his lack of liability will still pay for the cost of
defending himself; a plaintiff who establishes that the defendant wrongfully
caused him injury will still have to pay his lawyer the cost of bringing the
case.  Some tort reform proposals
have suggested moving closer to the "English Rule," which
would require the loser to pay the winner's legal fees.

Medical Expenses

In
most personal injury cases the plaintiff incurs medical expenses.  The expenses prior to trial are easily
calculated, and are subject only to a reasonableness test.  On the other hand, the expenses
projected for the future, especially in a serious case, are hard to
calculate.  Escalating medical costs
make it all the more difficult.
Seven-figure medical expense awards are not uncommon in cases of brain
damage or paraplegia.  Like wage
loss, a medical expense award must first be calculated in terms of future
dollars, and then that sum must be discounted to present value to determine the
jury award.

Economic
v. Noneconomic Damages

An
additional test used by some jurisdictions in deciding on joint and several
liability is to distinguish economic (out-of-pocket) damages from non-economic
(pain and suffering) damages.  The
plaintiff may be able to recover economic damages in full, whereas non-economic
damages will be recoverable only to the extent that the culpable defendants can
actually pay their percentage shares.

Pain and Suffering

In
addition to the out-of-pocket costs suffered by the plaintiff, there are
usually emotional damages, including physical pain, emotional trauma caused by
the loss of the ability to engage in activities formerly enjoyed, etc.  Unless the compensation for the
plaintiff's injury includes these amounts, there will not be adequate
compensation.  Juries have a
difficult time assessing pain and suffering, in part because the injuries are
less amenable to verification, and also because it is hard to put a dollar
value on feelings.

Emotional
Damages without accompanying physical harm.  Traditional tort law did not allow a
recovery for "just" emotional harm.  For example, in Spade v. Lynn the
plaintiff was badly frightened on a train because of the defendant's negligence,
but she was unable to recover anything.
Courts have justified such a rule because of its administrative
convenience and because of a fear of litigation over trivial injuries.  On the other hand, some cases have
allowed recovery where the damage is severe and otherwise deserving of
recovery.  For example, in Johnson
v. State of New York, the defendant hospital negligently informed the
plaintiff that her mother had died, when instead it was a different Mrs.
Johnson.  Despite the lack of any
physical injury, the court held that there was a "guarantee of
genuineness" that would allow recovery for the emotional as well as
out-of-pocket expenses.

Permissible Jury Arguments

Plaintiffs
understandably want to get the jury to award as high an amount as
possible.  To influence the jury the
plaintiff's bar developed persuasive arguments.  One suggested that the jury imagine a
single day in the plaintiff's condition and award the amount that would fairly
compensate for that one unit; to calculate the whole award the number of days
would then be multiplied by the amount of time the plaintiff was projected to
suffer the disability.  This
"per diem" argument has been held by some courts to be misleading and
therefore impermissible.  Similarly,
lawyers who want the jury use the award to "send a message" to others
in the defendant's industry have been forced to focus on compensatory rather
than punitive measurements.

Property
Damage

When
a plaintiff's property is damaged or destroyed as a result of defendant's
negligence, the plaintiff can recover the amount of the property loss, measured
in one of two ways, whichever is the smaller:   (1) the cost to repair the
property to its pre-accident condition; or (2) the difference in the fair
market value before and after the accident.  For example, if the plaintiff's Mercedes
was struck from behind by a defendant who was following too closely, the
plaintiff can recover the cost to restore the car to its pre-accident
condition.  On the other hand, if
the plaintiff's Pinto is broadsided, it will probably be
"totaled"--meaning it is not economically feasible to repair the car;
instead, the defendant will pay what the car was worth before the accident and
let the plaintiff replace it.  In
theory (if not always in practice), this puts the plaintiff in as good a
position as he would have been but for the accident.

Punitive
Damages

In
an ordinary negligence case, the plaintiff is entitled to be compensated for
the injury, that is, put back in as good a position as he or she was before the
accident, to the extent that is possible.
In some cases, however, the plaintiff is entitled to do more than seek
compensation; the plaintiff may use the opportunity of the lawsuit to punish
the defendant for antisocial conduct.
An award of punitive damages may only be made where the conduct of the
defendant is either malicious (reflecting an intent to cause harm) or so lacking
in regard for the plaintiff's safety to require a punitive award.

Special
damages

Special
Damages refer to those damages that result in an out-of-pocket loss to the
plaintiff.  For example, wage loss
and medical expenses are considered "special damages," as opposed to
general damages, mostly pain and suffering damages.  (There is some confusion on this point,
since sometimes the term "general damages" is used to include future
medical expense, as distinguished from what has been paid out in the
past).  In the language of insurance
claims adjusters, "specials"--shorthand for "special
damages"--refers to what the plaintiff has already paid in medical
expenses and wage loss, and is used as a rough rule of thumb to evaluate the
amount of pain and suffering damages that can be expected.

Wrongful
Death

In
cases where the defendant's negligence results in a person's death, the tort
system must create a suitable remedy to measure the damage.  The earliest historical approach to
wrongful death was essentially to ignore it, since the state's punishment of
wrongful death (execution and forfeiture of goods) left nothing to be used for
compensation.  However, after courts
declared their inability to create their remedy for wrongful death, legislatures
responded by enacting one of two types of statutes:  so-called "wrongful death"
statutes focused on the injury suffered by the immediate family of the
decedent, and usually measured the economic loss suffered by the spouse or
children (even the parents) of the decedent as a result of his or her premature
death.  On the other hand, other
jurisdictions enacted "survival" statutes, which provide for the
SURVIVAL of the cause of action.  In
other words, a legal entity was created (actually, simply recognized in the
form of the decedent's estate) that had a right to sue for compensation.  The measurement in survival act statutes
tends to be the kind of damages the decedent would have been able to collect
had he lived.  Again, wage loss was
a prime consideration.  In addition,
statutes sometimes provide for recovery for emotional harms, either in the form
of the loss of relationship suffered by the family members, or in the form of
the ability to enjoy life that was lost by the decedent through his premature
death.  Since remedies for wrongful
death are creatures of statute for the most part, careful attention must be
paid to the specific provisions in the jurisdiction governing each case.

Wrongful Birth / Wrongful Life

Most
tort cases involve a clearcut injury such as a broken arm or a facial
scar.  Where the defendant's
negligence results in an unplanned pregnancy, however, damages are more
difficult to assess.  A typical case
involves the failure of a sterilization or birth control measure, or the
failure of a healthcare professional to provide timely advice.  The claim is that if the defendant had
used reasonable care, the pregnancy would not have occurred.  Courts are divided on how to assess
damages where the child is born otherwise healthy.  Some jurisdictions have stated as a
matter of policy that, while the expense of being pregnant and having the
child, along with the associated pain and suffering, can be compensated, no
compensation is required for the cost (both financial and emotional) of rearing
a child, since as a matter of law those costs are outweighed by the benefit of
the new family member.  Other
jurisdictions have permitted the jury on a case-by-case basis to assess the
positive as well as the negative features of having a child and (using the
Restatement test of imputed benefit) come up with a net damages assessment.

In
the case of a child born with disabilities, however, most jurisdictions
recognize the right of the parents to recover for the extraordinary costs
associated with the child's disability.
Finally, most jurisdictions refuse to recognize (or provide minimal
recovery for) the child's claim that he would have been better off never to
have been born.  This claim is
raised only by a child born with significant disabilities, and most
courts--recognizing the metaphysical difficulty of evaluating life versus
non-life--have either refused to recognize the cause of action or have granted
only nominal damages.