Badger Lawyer's Personal Injury Damages
“Damages” is the legal term for the injuries you have suffered due to the legal fault of another. Not all harm you suffer is legally compensable. For example, being verbally insulted isn’t usually compensable, because the law recognizes that people are rude sometimes, and we all have to put up with unpleasant people. The law also doesn’t usually allow damages for injuries that are too remote or speculative. Like lost wages for the job you were going to apply for if the car accident hadn’t made you late. Finally, attorney’s fees aren’t usually recoverable, even though you have to pay them. A good lawyer, though, can usually increase your settlement more than enough to account for the fees.
But most injuries you can think of, and some you might not, would be considered legitimate damages: physical injury, medical bills, lost wages, and so on. Not all causes of action require damages as one of the proofs, but without damages, even if you win the lawsuit, you get no compensation. Whether or not you can get compensation is a big factor in deciding to go to the trouble of filing suit in the first place.
This section presents an in depth look at what kind of damages are available in Wisconsin. Below are the most common types of damages.
Check these topics for more information:
Compensatory Damages
Punitive Damages
Nominal Damages
Pain and Suffering
Emotional or Mental Distress
Disability and Loss of Enjoyment of Life
Lost Earning Capacity
Medical Expenses
Loss of Consortium
Damage to Property
Future Losses and Permanent Injuries
Compensatory Damages
Compensatory damages, as the name suggests, are damages awarded to compensate you for injuries your sustained. Compensatory damages are damages designed to make you whole for the injuries you have suffered. Many of the damages discussed below are components of compensatory damages. Compensatory damages are sometimes called “actual damages” meaning they represent the actual losses you sustained. As you might guess, punitive damages are not included within the idea of compensatory damages.
There are two categories of compensatory damages, a general and special. General damages would be compensation for things like emotional distress. Special damages are specific items which you would probably have a receipt, which are medical expense.
Punitive Damages
The purpose of punitive damages is to punish the wrong doer for his conduct. This is the idea behind punitive damages is deterrence. They are not available in simple cases of negligence or other accidental, thoughtless, or unintentional behavior. To receive punitive damages, you must prove that the defendant acted maliciously toward you or with intentional disregard of your rights. Malicious acts are defined as the result of hatred, ill will, or a desire for revenge or inflicted under circumstances where insult or injury is intended. Intentional disregard of your rights is defined by courts as acting with a purpose to disregard your rights, or an awareness that the acts are substantially ________.
The purpose of punitive damages is to punish the wrongdoer for his conduct. Since the idea behind punitive damages is deterrence, they are not available in cases of simple negligence or other accidental, thoughtless, or unintentional behavior. To receive punitive damages, you must prove that the Defendant acted maliciously towards you, or with intentional disregard for your rights. Malicious acts are defined as the result of hatred, ill will, a desire for revenge, or inflicted under circumstances where insult or injury is intended. Intentional disregard of your rights is defined by courts as acting with a purpose to disregard your rights, or an awareness that the acts are substantially certain to result in your rights being disregarded. This latter statement allows you to seek punitive damages in situations where the wrongdoer claims not to have intended to cause you harm. Generally speaking though, intentional conduct is required, at the very least, the conduct has to be intentionally done with the ultimate impact that it highly violated your rights.
Nominal damages are a very small sum of money awarded for no purpose other than to acknowledge that you were wronged. In other words, if someone invaded your rights or breached a duty to you, but you weren't really hurt, you could bring a lawsuit against them anyway. The jury might find for you and award you a dollar or a hundred dollars, just to acknowledge that you were wronged. But, since you suffered no losses, you receive no compensatory damages.
Pain and suffering is often one of the most significant elements of your damages, but it is terribly difficult to define. It is also difficult to pin down in a case, because it is very often vague, nondescript, nor subject to ready proof.
Under pain and suffering, you can recover compensatory damages for physical pain, fright, nervousness, grief, anxiety, worry, shock, embarrassment, humiliation, indignity, apprehension, terror, mortification, or ordeal. You may be able to recover for disfigurement and deformity, impairment of ability to work, or labor, anxiety or worry attributable to your injury, mental distress caused by impairment of the enjoyment of life. Essentially any pain you feel or emotional suffering you go through is compensable, so long as it is not imaginary pain that is consciously fabricated. If it is real to you, it is compensable.
Emotional, or mental, distress, involves any mental or emotional injury. This type of compensation gets to the distress, fright, grief, worry, shock, humiliation, embarrassment, and other emotional trauma associated with an injury. Emotional distress damages is distinct from mental health treatment expenses.
The amount of your damages is not limited by your distress over your particular injury, but you also cannot recover for speculative or congectural damages. Emotional distress is usually an element of damages, but can also be raised as its own cause of action. Such a cause of action would be called negligent infliction of emotional distress, and results where someone commits negligence causing you to experience purely or mainly emotional distress. A couple of examples would be where a building collapsed and it just missed you, or you were looking out the window and see your child hit by a car. Because an emotional injury would be easily faked, there are certain requirements to prove the legitimacy of an emotional distress claim under the circumstances. You don't have to have all of these requirements to establish your claim, but at least one strong one, or several in combination are necessary.
- Actual physical injury, even if fairly slight.
- Directly witnessing or coming upon the scene soon after the accident.
- Being in the "zone of danger" when an accident occurs, meaning that you just barely were missed by the harm-causing event.
- Being physically impacted by the accident-causing event, even if without injury.
Disability and Loss of Enjoyment of Life
Disability means a permanent physical injury or permanent impairment of health resulting from the destruction or impairment of any physical function. Damages for disability are separate from future pain and suffering and loss of earning capacity. An award for physical disability is an award for "impairment of ability". Not for the suffering associated with the impairment, but for the impairment itself. Not for the loss of ability to earn associated with the impairment, but for the impairment itself. Physical disability can constitute the loss or impairment of any limb or body part, or severe allergic reactions, or permanent disease or health issues, or just about any other physical injury that lasts a lifetime. Permanent mental injury is also recoverable, including not just the injuries associated with a traumatic brain injury, but also the permanent psychological impact of disfigurement.
Loss of enjoyment of life is a type of damages also called hedonic damages. Hedonic damages are similar to pain and suffering, but whereas pain and suffering considers the actual physical pain and mental suffering associated with the injury, hedonic damages considers the loss of ability to enjoy life that is a result of the aftermath of the injury. Loss of enjoyment of life can result from diminished life expectancy, ill health, inconvenience from the loss of a limb, loss of one or more of the senses, inability to engage in sports, past times, hobbies, or vocations, or any other things that make up the pleasure of life. Pain and suffering compensates you for the pain you feel. Loss of enjoyment damages compensate you for the things you cannot do because of the pain you are feeling.
If the injury you suffer prevents you from working, whether just for awhile during your recovery, or for the foreseeable future, you may recover for the amount of lost wages you would have earned. If the injury is fairly minor and you simply miss some time at work before making a complete recovery, the amount of your damages will be determined in large part by what your paycheck would have been. It becomes more complicated if you suffer a permanent injury which impacts your ability to earn down the road. There are a number of issues that have to be considered. If you suffer a permanent injury which diminishes your ability to work, then a percentage of the diminishment has to be figured out. If you suffer an injury that renders you no longer able to work at your chosen profession, and instead you end up working a job that provides you with less compensation, then the difference between what you would have earned and what you can earn must be considered. Finally, it is possible that your injury may make it less likely for you to receive raises and promotions, in which case the difference between what you would have earned in your lifetime had you received the raises must be compared with what you in fact can now earn without them.
Once all of this is considered, the total is your gross lost earnings. Typically an expert is needed to make these calculations. This is particularly true since an expert will also consider how much extra that you would have paid into retirement or social security accounts as part of your losses. Once the gross lost earnings are calculated, an expert will typically reduce the total to what's called a present value. Present value is the amount of money in today's dollars, which, if invested, would provide you with your lost income over the remainder of your anticipated working life.
All medical, hospital, and mental health costs associated with your injury would form an element of your compensatory damages known as your special damages, or just "specials". This is usually the least controversial element of damages, because for the most part there will be hospital or doctor records showing just how much was billed for a given service. Note that you are entitled to recover for the entirety of the medical bill, even if your insurance paid for some of it.
Somewhat more controversial are damage claims for future injuries. For example, if you were in an accident that results in knee surgery, you may be at a higher risk for needing future knee surgery or repair. That surgery is not likely to happen for 10 or more years. Still, the accident itself directly led to the eventual second surgery. This cost for future surgery is recoverable, but is often the subject of debate in determining whether it is necessary and how much compensation should be provided. Expert testimony is usually required for future medical claims.
Also known as loss of society and companionship, loss of consortium claims involve the emotional or sentimental aspects of family relationships, including the loss of love and affection associated with injuries which impact familial relationships. Depending on which family member you're talking about, most of consortium covers loss of love, companionship, affection, sexual relations, performance of marital services like child care, homemaking, chores, maintenance, and so forth. As a general rule, the term loss of consortium is used when the damage involves injury to the spousal relationship, and loss of society and companionship refers to injuries to a relationship between a parent and an injured minor child, a minor child and an injured parent, a surviving spouse, child or parent, if there was a wrongful death of a spouse, parent or child. Also, recovery may be possible for a sibling in a wrongful death case if the surviving sibling was a minor at the time of death. These claims are based on the emotional ties shared with the injured or deceased party.
A related type of damages is called "loss of services". This is the economic value of the homemaking, child rearing, family business assistance, and lost earnings of an injured party, from the perspective of the family member who has lost the benefit of those services.
Damage to your personal property due to the negligence of another person is compensable, obviously. The most typical example is the damage to your vehicle in a car accident. The rule is that the person who causes the damage is only liable for the amount of damage caused, not for the total value of the item damaged. Thus, if your car is not "totaled", you will only receive sufficient compensation to have the car repaired back to its previous state. While disputes often arise around how much money it will take to repair a car, or whether the car is in fact totaled, the basic rules of property loss compensation are not controversial.
Another manner in determining the amount of a loss is to compare the market value of the property prior to the accident and after the accident. If the particular item has no market value, it can be valued by its actual value to the owner. This type of calculation is particularly valuable for keepsakes, family pictures and similar items. The measure of value is determined by what the person who owned the property would pay for them, not what they are worth on the open market. This type of measure is limited, however; sentimental value is not recoverable.
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