In awarding compensatory damages, jurors - or judges in non-jury trials - must decide what, if any, award will fairly compensate the plaintiff for the losses.
The burden is on the plaintiff to prove by the preponderance of the evidence each item of damage claimed to be caused by the defendant. In considering the items of damage, jurors must keep in mind that the ultimate award must adequately and fairly compensate the plaintiff, but should not be based on guesswork.
Compensatory Damages for Bodily Injury
In an action for damages in a personal injury case, jurors must consider the following:
- The personal injuries sustained and their extent and duration;
- The effect such injuries have on the overall physical and mental health and well-being of the plaintiff;
- The physical pain and mental anguish suffered in the past and which with reasonable probability may be expected to be experienced in the future;
- The disfigurement and humiliation or embarrassment associated with such disfigurement;
- The medical and other expenses reasonably and necessarily incurred in the past and which with reasonable probability may be expected in the future;
- The loss of earnings in the past and such earnings or reduction in earning capacity which with reasonable probability may be expected in the future.
In awarding damages, jurors - or judges sitting in non-jury trials - must itemize the award to show the amount intended for:
- The medical expenses incurred in the past;
- The medical expenses reasonably probable to be incurred in the future;
- The loss of earnings and/or earning capacity incurred in the past;
- The loss of earnings and/or earning capacity reasonably probable to be expected in the future;
- The "Noneconomic Damages" sustained in the past and reasonably probable to be sustained in the future. All damages which the jury finds for pain, suffering, pre-impact fright, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury are "Noneconomic Damages";
- Other damages.
Susceptibility to Injury
The effect that an injury might have upon a particular person depends upon the susceptibility to injury of the plaintiff. In other words, the fact that the injury would have been less serious if inflicted upon another person should not affect the amount of damages to which the plaintiff may be entitled.
Aggravation of Previous Condition
A person who had a particular condition before the accident may be awarded damages for the aggravation or worsening of that condition.
Compensatory Damages for Non-Bodily Harm
In determining damages jurors must consider any expenses, mental pain and suffering, fright, nervousness, indignity, humiliation, embarrassment, and insult to which the plaintiff was subjected and which was a direct result of the defendant's conduct.
Loss of Consortium
A husband and wife are entitled to be compensated for wrongful damage to their marital relationship. The damages which justify compensation include their loss of companionship, affection, assistance, and loss or impairment of sexual relations.
In this case, jurors must consider what, if any, damages should be awarded to the Plaintiff for the emotional distress and mental anguish that the Plaintiff suffered between the time the Plaintiff first realized that there would be an accident and the actual accident. This element of damages is known as pre-impact fright.
Limitations on Compensatory Damages
Duty to Mitigate Damages
A plaintiff has a duty to use reasonable efforts to reduce the damages, but need not accept the risk of additional loss or injury in these efforts.
The "Collateral Source Rule"
In arriving at the amount of damages to be awarded for past and future medical expenses and past loss of earnings, you may not reduce the amount of your award because you believe or infer that the plaintiff has received or will receive reimbursement for or payment of proven medical expenses or lost earnings from persons or entities other than the defendant, such as, for example, sick leave paid by the plaintiff's employer or medical expenses paid by plaintiff's health insurer.
Reducing Personal Injury Damages to "Present Cash Value"
In deciding upon the damages to be awarded for any future economic loss, jurors must consider how long the plaintiff is likely to live notwithstanding the injury, and the present cash value, if any, of the loss.
Present cash value means that amount of money needed now, which, when added to what that amount may reasonably be expected to earn in the future by prudent investment, will equal the amount of the plaintiff's loss.
In other words, the total anticipated future loss must be reduced to an amount, which if prudently invested at a particular rate of interest over the applicable number of years, will return an amount equal to the total anticipated future loss.