You are on page 1of 3

3 Damages

Friday, December 04, 2009 4:59 PM

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. 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
Tort Tree Page 1

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/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 unhealthy child, 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 court--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. Bystander / Loss of Consortium A final category of related parties who seek compensation includes those who were either present at a gruesome, and were emotionally traumatized by observing the accident, or relatives who suffer significant losses because of their dependence on the direct victim. Most jurisdictions permit recovery by a spouse for loss of "consortium"--literally, the society (and companionship) with the direct victim. In most jurisdictions a family member other than a spouse can recover only emotional damages if they were present at the accident scene. However, the law in this area is unsettled. 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 effect this calculation. 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 non-economic damages (such as pain and suffering). Some of these statutes were held constitutional; other cases held that such limitations violated a variety of state constitutional rights, such as the open access of the courts, or the right to a jury trial. Collateral Sources If the plaintiff is compensated from a source other than a tortfeasor, the traditional rule in most

Tort Tree Page 2

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. Permissible Jury Arguments Some forms of argument are impermissible because they tend to inflame the passion of juries beyond just compensatory damage considerations. Two common examples are the "send a message" argument (suggesting that the size of the jury's award should be calculated to "send a message" to the defendant's industry to avoid such behavior in the future) or the "per diem" argument, which tells juries to calculate pain and suffering awards by setting a "per diem" cost of, for example, losing an arm, and then extending that to the number of days that the plaintiff will suffer that loss. Of course, plaintiffs' lawyers are constantly in search of arguments that will help the jury award larger sums.
Pasted from <>

Tort Tree Page 3