matt1000In my last column, we discussed the definition of “tort” and the sub-categories of legal wrongs that entitle a tort plaintiff to recovery, if that plaintiff proves his/her case. If you recall,“torts” are legal wrongs that fit into fourteen basic categories. In this column, we will focus on “damages”, briefly discussing their history and the types of recovery available for successful plaintiffs in tort cases.

“Damages” is a fancy word for “money” in the tort context. Of course, it is an emotional matter, because the concept of damages centers on someone’s getting or giving money. Therefore, as you might suspect, any discussion of tort damages raises passion on both sides of the aisle, depending, of course, on whose ox is getting gored. In fact, in the recent “tort reform” debate in our Legislature, virtually all of the contested issues centered on damages.

The concept of a wrongdoer paying damages to an injured party is not an idea recently concocted by a group of greedy lawyers in a smoke-filled back room. In fact, its roots began in Biblical times. If you don’t believe me, get your Bible and take a few minutes to review the twenty-first and twenty-second chapters of Exodus. With this tradition, the concept of damages was adopted and continued through the old English common law, which is the predecessor to our modern-day legal system. In fact, much of damages law has remained unchanged through the centuries.

Now that we’ve established the historical basis of damages, let’s move to the present day. If someone is injured at the fault of another, then there are six broad categories of available damages: (1) economic loss, (2) physical pain and suffering, (3) mental distress, (4) loss of ability to enjoy life, (5) recovery for provable future damages, and (6) punitive damages. In most cases, a jury determines the dollar amount for each category mentioned. Because each category is important, they deserve more detailed explanation.

“Economic loss” damages include payments for medical bills incurred by the injured party, lost earnings and the costs of hiring someone to do the things that the injured person can no longer do (for example, a housekeeper for an injured housewife). In short, these are the actual, out-of-pocket, costs that an injured party incurs as a result of the tort.

“Physical pain and suffering” damages is money paid for the pain of the injured party. The valuation of pain and suffering has always been problematic for lawyers and juries. Indeed, how do you accurately reduce misery to a dollar figure? One of my law school professors explained it like this: “When you go to have surgery, you ask for and are wiling to pay an anesthesiologist for the pain-killing shot. Therefore, you value pain, since you are willing to pay to avoid it.” This anecdote doesn’t help juries in coming up with a dollar figure, but it does make sense in the context of valuing pain.

“Mental distress” is what is often called “inconvenience money”. It covers the fright and shock that took place at the time of the injury, depression, humiliation and worry about the future because of the injury. Again, this is a difficult area to precisely value.

“Loss of enjoyment of life” compensates the injured person for the loss in ability to enjoy the simple pleasures of life. In theory, these damages differ from pain and suffering and mental anguish, but, as a practical matter, they do overlap. Like “pain and suffering”, it is also difficult to put a dollar amount on this category.

Provable future damages compensate an injured person for future costs in all of the categories mentioned above. If, for instance, someone is facing future surgeries, then a jury is allowed to pay a tort plaintiff for that. Please note the word “provable”. Mere conjecture or speculation will not be submitted to a jury to decide. There must be a factual basis (usually medical or psychological testimony) for future damages before judges will let a jury consider the issue.
“Punitive damages” are awarded only in extreme cases. Punitive damages are awarded in addition to the other categories mentioned above. As the name implies, their sole purpose is to punish outlandish conduct. Punitive damages are rarely given. A plaintiff can only be awarded punitive damages if the bad guy’s acts were intentional, or so grossly negligent that punishment is necessary to insure that the bad act won’t happen again.

As we’ve seen, the concept of damages has evolved over time. Although they are sometimes difficult to value precisely, the categories of available damages are well-established. If you take nothing else from this column, I hope you now understand the difficulties that lawyers, judges and juries face in determining damages.