By: Guy 0. Kornblum, Certified Civil Trial Advocate, National Board of Trial Advocacy and Member, Million Dollar Advocates' Forum
In my last column, I " welcomed" you to the injury compensation system and discussed various sources of financial support for the recovering victim of injury. This column will focus on what a victim of injury can recover in a lawsuit ? a civil action ? against a wrongdoer, known as the "tortfeasor." in which the victim claims "money damages." Usually this claim results from an auto accident, a slip and fall, or other type of "personal injury" claim. While medical negligence ?aka medical malpractice ? claims are also a type of personal injury claim, they have special rules which we will discuss in a later column,
Essentially the "tortfeasor" is the person or entity responsible for the injury to the victim. The "tortfeasor" can be an individual or a corporation, with the latter acting through its employees or agents for whom the corporate employer or "principal" can be held responsible.
In the "tort system," the goal is to compensate the victim for the injuries resulting from the wrong committed. The "measure" of this compensation is in money, even though dollars and cents can never make up for the injury caused, particularly in cases in which there are severe permanent injuries, such as quadra or paraplegia, scarring, psychological injuries, or physical impairments to one's enjoyment of life.
The "damages" allowed usually include medical expenses, past wage or income loss, future medical expenses, and an amount to compensate the victim for any impairment to his or her earning ability in the future which have been caused by the wrongdoing of the tortfeasor. This latter category usually requires an analysis by an expert, such as a labor economist, as to what future the victim has in the labor market, to what extent that has been impaired (based on the medical opinions as to physical, mental and emotional injury), and what the "value" is of that impairment as it relates to what the victim can earn versus what that victim could have earned had the injury not occurred. However, this loss of earning power can be inferred from the nature of the injury and without proof of actual earnings or income either before or after the injury. It is based on the jury's evaluation, based on the injuries and evidence presented at trial of the "value" of the loss of the victim's ability to earn money in the future as a result of the injuries suffered.
These are usually referred to as "economic" damages.
In addition, the victim is entitled to recovery of "non-economic" damages, which consist of past and future "pain and suffering." Such damages include pain, discomfort, fears, anxiety, and other mental and emotional distress suffered by the victim and caused by the injury, which have been suffered or which are reasonably likely to be experienced in the future. There is no definite standard to be applied in measuring "pain and suffering." However, the jury is instructed that they must "exercise their authority with calm and reasonable judgment and the damages they fix shall be just and reasonable in light of the evidence."
In injury cases in which a spouse (the jury is out on gay couples that is an issue in the death in the dog mauling Whipple case) is injured, the non-injured spouse can recover damages for the loss of consortium, or loss or damage to the relationship. Likewise, in wrongful death cases, the "heirs" (usually the spouse and children, including adopted children and children born out of wedlock) are entitled to recover damages for "loss of consortium." In those cases, the heirs must combine to bring one lawsuit either in their own names or that of the personal representative, the executor or administrator of the estate. The "damages" awarded for "loss of consortium do not include injuries to the deceased victim, nor the "grief or sorrow" of the heirs, but are based on the combined value of the loss of love, companionship, comfort, affection, society, solace or moral support, including sexual enjoyment. It also includes the loss of physical assistance by the deceased victim in maintaining a home. In the case of a deceased parent, compensation for the loss of support, such as help in school, coaching or other assistance in simply growing up, is permitted. Once the jury returns its verdict, the court then oversees the disbursement of these wrongful death proceeds.
"Loss of consortium if an injury case is somewhat the same. However, the spouse is the only one entitled to recovery for the damaged relationship, which is impaired to the extent the injuries suffered diminish the relationship because there is less companionship, support, and affection, including injury to the sexual relationship or other aspects of a couple's relationship. Curiously, while in a death case the children of a deceased victim are part of the wrongful death claim, which has loss of consortium aspects, they do not have a claim for loss of consortium when the injury is to a parent. That has been the law since a key California Supreme Court case in 1977, which held that a child does not have a legal right to recover for loss of parental consortium resulting from wrongful death injury to the parent through the negligence of a third party.
A final point: Ordinarily, a victim of personal injury cannot recover punitive damages in the ordinary injury action. Punitive damages are not based on compensation but are allowed only in cases of malicious, fraudulent or oppressive conduct, or against a drunk driver. Their purpose is not to compensate but to punish the wrongdoer for egregious, despicable or intentional conduct, and to make an example of that person. They are assessed at the discretion of the injury based on the level of reprehensibility of the wrongdoing, the wealth of the defendant, and the amount of the money damages caused to the victim.
