Lawyers often talk about “damages” and what that means is what can an injured person collect for from the wrongdoer? My clients often ask me this question and I usually answer it this way.
There are three general areas of compensation for an injured person.
- Economic losses
- General (subjective) losses
- Punitive assessments to teach the defendant a lesson.
Often referred to by lawyers as ” special damages ” these items include wage loss, expenses for medical treatment, out-of-pocket expenses for property damage or other items of expense that were necessary because of the defendants wrongful conduct. There are so many types of losses that occurr, is impossible to give a complete list and lawyers usually ask their clients to identify the areas of loss. Whatever losses flow from the incident are recoverable by the injured party. however the injured party needs to prove these damages with specificity. That means if the Plaintiff wrote a check they must produce the cancel check to prove the payment or they cannot recover for that loss. Record-keeping is important in filing a claim for economic loss and an injured party should keep good records on everything that they spend. For wage loss or loss of income and injured party must show documents proving prior wage earning capacity and this can often be a problem if income was taken as cash and income tax returns were not filed. If that is the case the injured party often cannot recover for wage loss. For loss of future income there must be documented proof that the income was going to be there and this can often be a problem for people who earn living on commission sales .
General losses are losses that cannot be proven by documentary evidence such as canceled checks, or other forms of concrete evidence. lawyers refer to these damages as ” general damages” and to include pain, suffering, loss of enjoyment of life, disfigurement, mental anguish and interference with family relations. ThereIs no machine that can measure pain nor can mental anguish be measured. unlike economic losses that can be proved with specificity and documentation, general damages are subjective and a judge or a jury as the case may be make a determination of the amount based upon common sense and what they think is fair under the circumstances.
The third type of damages are meant to punish the defendant not compensate the plaintiff. They can only be assessed against the defendant if the the defendant acts in a way this extremely reckless and almost criminal. these damages are meant to teach the defendant lesson so that other persons or companies in the future will act differently and refrain from that conduct. The measure of punitive damages is often based upon the wealth of the defendant. the question is what would it take to punish the defendant and that depends how much money the defendant has. Usually the plaintiff asks for somewhere between 1% and 5% of the wrongdoer’s net income. For a net income of $100,000 that would amount to between $1000 and $5000. In the McDonalds hot coffee case the punitive damage award of about $6 million dollars was what McDonalds corporation profited on selling coffee for a few hours. The jury felt that with the huge profits made by McDonald’s, this tiny percentage of their profits would send a message. There’d been over 700 prior serious burn cases from McDonald’s hot coffee. Punitive damages are rarely assessed.
There are other types compensation awarded in lawsuits, particularly in civil rights, consumer fraud and business transaction cases. Those will not be discussed here but will be the subject of a future article.
A resident of Honolulu, Hawaii, Wayne Parson is an Injury Attorney that has dedicate his life to improving the delivery of justice to the people of his community and throughout the United States. He is driven to make sure that the wrongful, careless or negligent behavior that caused his clients' injury or loss does not happen to others.