Calculating your damages in a personal injury lawsuit

mm Paul Verbiton September 16, 2020
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If you have been injured or your property was damaged, and it is someone else’s fault, you may be entitled to compensation. What kind of compensation can you get? How much? Who will pay your compensation? It will depend on the extent and type of damages you suffered and how they were incurred.

This description of the possible types of compensation a personal injury victim and a victim of property damage can receive comes from the office of renowned personal injury lawyers in Bucks County, PA.

What Are “Damages?”

“Damages” is the term used to refer to monetary compensation for damage to property and personal injuries. There are also “punitive” damages, which are awarded to a plaintiff when the conduct of the defendant was particularly egregious, or when provided by statute. In some cases, statutes provide for an award of attorney fees and costs to the plaintiff, which can also be considered “damages”.

The term “damages” is generally used once a dispute arises over liability, and the party suffering the damages sues the party believed to be at fault. At that point, the plaintiff (victim) must prove not only that the defendant was wholly or partially responsible (called “liable”) for causing the plaintiff’s damages, but also the number of damages.

If the defendant is insured for the type of incident that caused the plaintiff’s damages, in some states, the defendant’s insurance will settle with the plaintiff. In others, the plaintiff’s insurer will pay. In these cases, the amount of damages is called a “settlement”.

A settlement can also occur once litigation commences if the parties negotiate a monetary compromise in order to cease litigation. A settlement can be paid by the defendant personally or through insurance.

Compensatory Damages

Compensatory damages are what they sound like – money to compensate the plaintiff for medical expenses, time away from work, and cost to repair damage to property.

If the plaintiff will be out of work for a calculable period of time, the plaintiff may be awarded compensation for lost future wages. The plaintiff may also be entitled to compensation for pain and suffering, depending upon the type of accident and the seriousness of the injury or injuries. A plaintiff can also be compensated for emotional distress if caused by the accident.

If the plaintiff has immediate family, there may also be compensatory damages awarded a spouse for loss of consortium. If the plaintiff was killed in an accident, the plaintiff’s family might also receive damages for wrongful death.

Punitive Damages

Punitive damages punish the defendant for egregious behavior causing economic or physical injury to the plaintiff. They are intended not only to punish the defendant but to dissuade others from engaging in the conduct being punished.

Punitive damages can be awarded by a judge under the common law or by statute, which often will set a ratio of punitive damages to compensatory damages. For example, a statutory punitive damage award of “treble damages” means that for every dollar of compensatory damages the plaintiff is entitled to, they will also receive punitive damages.

Recent pushes for tort reform include the insurance industry’s desire for caps on punitive damages. There is currently no cap on punitive damages, however, the Supreme Court of the United States has handed down several decisions in recent years suggesting that an excessive punitive damage award may be unconstitutional under Due Process rights found in the Fifth and Fourteenth Amendments.

The Plaintiff is Required to Mitigate Damages

Depending upon the type of incident causing the plaintiff’s injury or property loss, the plaintiff may have a duty to mitigate or attempt to avoid or minimize, their damages. A plaintiff is generally required to respond to the defendant’s conduct in good faith and in a way an ordinary, reasonable person would respond in a similar situation.

For example, in at-fault states, a plaintiff driver is required to attempt to avoid the defendant’s vehicle by taking defensive or evasive action to do so. If a defendant’s car stops short suddenly, the plaintiff has a duty to brake hard or swerve onto the shoulder to avoid the defendant’s vehicle when and where possible. The defendant may allege that the plaintiff was tailgating. The plaintiff may allege that the defendant’s brake lights are out.

In some states, if a jury finds that the plaintiff in this scenario was even 1% at fault, the plaintiff cannot recover damages from the defendant. In other states, the plaintiff must be no more than 49% at fault to recover damages from the defendant.

Let’s say that defendant’s negligence caused the plaintiff injuries that render her unable to perform her usual job duties ever again. If the plaintiff can do some kind of work, the plaintiff is required to do it. She will not be able to recover a lifetime’s worth of future lost wages from her previous job from the defendant but will be able to recover any reduction in wages caused by her injuries.

Similarly, if the plaintiff refused medical treatment at the scene of the accident or shortly thereafter, and his injuries or condition deteriorated as a result, the defendant may not be liable for compensatory damages for the treatment of the worsened condition due to the plaintiff’s failure to seek medical treatment.

Talk With a Lawyer About Your Case

If you have been injured or your property has been damaged through the negligent or intentional acts of others, talk with an attorney. Each case is unique, and an attorney will be able to help you calculate what type and amount of damages you may receive.
This article was written by Veronica Baxter, a blogger and legal assistant working and living in the great city of Philadelphia. She frequently works with HGSK, bad faith insurance lawyers with offices throughout Pennsylvania.

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Paul Verbiton

I enjoy spotting opportunities and doing my best to grab them if I can. I am eager to see the world, I love taking photos and writing, coming up with topics that are pleasant to read, funny, and interesting at the same time.

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