HARM:

Harm can come in many forms. It can be economic, like medical costs and loss wages. It can be non-economic, like pain and suffering or extreme emotional distress. It can be harm to a person’s body, to a family member, or to property. However, if one is not harmed in some way, the fourth element of negligence is not met and the lawsuit in negligence will not prevail.

Harm and causation in some ways are like the chicken and the egg. Which came first? Without harm there is really no causation, just a duty and breach of that duty. However, without causation there is no harm since again, we just have the duty and its breach. Just know this, if there is a duty and breach of that duty, and a subsequent harm or injury, it must be caused by that breach of duty.

If there is a harm or injury, then the law allows for compensation to the person harmed or injured in the form of damages. Damages are typically monetary in nature. In other words, we pay someone money when we injure them due to our negligence. There is in most situations no other way to make a person “whole” again. If you lose your leg in an automobile accident caused by someone’s negligence, they cannot get you your leg back. They can however, pay you money to allow you to buy a prosthetic leg, reimburse you for your medical expenditures and loss wages, pay you for future medical expenses, and pay you for all the pain and suffering associated with the injury. These are known as compensatory damages.

Compensatory Damages:

Compensatory damages are categorized as either general damages or special damages. General damages are non-economic while special damages are economic.

General Damages:

Below are some examples of general damages.

• Pain and suffering
• Disfigurement
• Severe emotional Distress
• Loss of consortium

Pain and suffering:

Some damages are quantifiable. You can do the math and figure them out like loss earnings. However, some damages are based on the experience, common sense, and judgment of the jury like pain and suffering. Pain and suffering damages not only include what has already happened, but will likely happen in the future because of the injury. If a person loses their arm, there is pain and suffering associated with the initial injury and recovery. There will also be future pain and suffering as that individual copes with the everyday difficulties, i.e. suffering, of not having that arm.

Disfigurement:

Disfigurement includes any scarring on the body or loss of a body part. It includes scarring caused by surgery that is a result of the injury. The damages are not quantifiable. Damages are again determined by the experience, common sense, and judgment of the jury.

Severe emotional distress:

Physical injury is not necessary to prove a person has suffered severe emotional distress. However, physical injury can also cause severe emotional distress. As is the case with pain and suffering and disfigurement, severe emotional distress is not quantifiable.

Loss of consortium:

The spouse of a person that is injured can sue for damages based on the loss of consortium. This in includes the loss of a sexual relationship between the injured person and their spouse. However, it is important to remember that the loss of consortium is the loss of any and all services provided by one’s spouse, not just those that is sexual in nature. For example, if the spouse that is injured was the one that typically took care of the household duties but can no longer do so because of their injuries, the cost of hiring someone to do so for the life expectancy of the injured person could be considered as loss of consortium damages.

Special Damages:

Below are some examples of special damages.

• Medical bills
• Loss of income
• Loss of future earnings
• Custodial care

Medical bills:

Medical expenses both current and future are recoverable damages. However, they must be reasonable and necessary. Overtreatment is not recoverable and is something that a jury may be asked to scrutinize by the defendant. Regarding future medical expenses, those that can be reasonable ascertained as required in the future can be calculated.

Loss of income:

The loss of income is a calculation. What income did the plaintiff lose due to the injury suffered? If a person works on commission this may be more difficult to calculate than the loss of income of a person who receives a salary. In those situations, looking at historical earnings can be obtained and used to calculate a reasonable estimate of loss.

Loss of future earnings:

The loss of future earnings can be calculated based on injury suffered, how it will reasonably impact the ability of the injured person to work in the future, what those earnings would reasonable be, and the life expectancy of the person injured.

Custodial care:

Custodial care necessary due to the injury can also be calculated based on the reasonable and necessary past and future custodial care required.

Punitive Damages:

The purpose of punitive damages is to a) punish a tortfeasor and b) discourage further such acts by the tortfeasor and others. Punitive damages are appropriate when the actions of a tortfeasor are deemed by a jury to intentional, malicious, fraudulent, violent, or otherwise outrageous in nature. They are over and above compensatory damages.

A good example of when punitive damages are awarded would be the Liebeck v McDonald’s case. In that case, in 1992, the plaintiff, a 79-year-old grandmother, ordered coffee at a drive-thru McDonald’s window. She was a passenger in her grandson’s vehicle. While the vehicle was still parked in the parking lot of McDonald’s, she attempted to take the cover off the cup of coffee when it spill in her lap. The coffee was so hot that it caused her third degree burns on six percent of her body. She was rushed to emergency. Like many burn victims, she had to endure surgical skins grafts due to her injuries. She was hospitalized for 3 weeks.

She sued McDonald’s and won. She was awarded compensatory damages, but the jury also awarded her $2.7 million dollars in punitive damages. The evidence presented to that jury showed that McDonald’s sold its coffee at 180-190 degrees Fahrenheit. That coffee at that temperature on a person’s skin could cause third degree burns in two to seven seconds. The evidence presented also showed that McDonald’s knew about this risk for more than 10 years based on the fact that there were more than 700 other claims or reports from other customers that were also burned by McDonald’s coffee being too hot. At that time, McDonald’s was generating revenues of about $1.3 million daily from the sale of coffee. After the verdict, the parties agreed to a final settlement which included a non-disclosure agreement. Therefore, the exact amount of damages McDonald’s paid to Mrs. Liebeck is unknown. After this verdict, McDonald’s decided to lower the temperature of its coffee.

Nominal Damages:

There are situations where a plaintiff proves their tort case, but a jury finds they have suffered little if any harm. When a jury verdict reaches such a result, they will award nominal damages. Nominal damages are a very small or token award of money to a plaintiff who has proven his/her legal case, but has little in the way of an injury or harm.