From a legal standpoint, every personal injury case has two main issues: (1) liability; and (2) damages. Your attorney will be evaluating both of these issues at all phases of representation, starting from the moment you have your initial meeting.
- Comparative Fault – The Allocation Of Negligence
The “liability” aspect of the case is concerned with, “who is at fault?” It is answering the necessary question of who caused the incident. In this part of the evaluation, you must consider whether it is just one person (or business) who is at fault, or are there others, including yourself, that a jury might conclude to be responsible for causing the incident? Prior to 1985, any negligence attributable to the injured party (known as “contributory negligence”) prevented any recovery by the injured party at all. That changed with the adoption of the Comparative Fault Act. In 1985, our state adopted what is known as a “modified comparative fault” statute. Under a comparative fault law, a jury apportions percentages of fault to all of the parties and nonparties named in the action. The recovery against any defendant you have sued is based on the percentage fault allocated to that defendant. In “modified comparative fault,” the same principle applies, but there is still a complete bar to recovery if the injured party is deemed to have been more than 50% at fault for the incident that let to injury. If your fault is 50% or less, then your damages award will be reduced by your proportional fault. For instance, if a jury determined your total damages were $60,000, but then concluded that you were 25% at fault, the total award to you would be reduced by 1/4, to $45,000.
- Determining Damages
The “damages” aspect of a case is a matter of measuring what was taken from the injury victim and valuing it in dollars. This second phase of case evaluation requires us to answer the question: “how much is required to make things right?” There are several components to “damages.” Some of them are pretty easy to determine, while others involve some persuasion and thoughtful explanation to determine.
- Special Damages (a/k/a “Pecuniary Damages”)“Special” damages (also called pecuniary, or economic damages) are those damages that can be determined by some independent measure.
- a. Incurred Medical Expenses and Lost WagesThe clearest examples of these are medical expenses and lost income. If you incurred $1,000 for treatment at the emergency room and another $5,000 in treatment in follow-up visits, your total medical special damages would be $6,000. Similarly, if you make $15/hour, 8 hours a day, 40 hours a week, and you miss two full weeks of work, your lost wages damages would be $1,200 ($15 X 40hrs X 2weeks).
- b. Future Medical Expenses and Lost WagesIn addition to such clear past special damages, you may have similar damages that have some objective measure, but will be experienced in the future. Clearly, the costs of future medical and related treatment fall into this category. From an employment standpoint, so would lost future wages for missing work from medical visits, post-surgical recovery, and the like. Because these losses have not yet been incurred, they are slightly harder to prove and require expert opinion testimony. However, they are still fairly simple to measure.
- c. Impaired Earning CapacityThere is another category of potential future employment income loss that is more difficult to grasp-impaired earning capacity. This is not lost future income from not being able to work. This loss occurs when you DO work, but due to continuing limitations from your injuries, you are unable to work at the same income level you would have been at had you never been injured. For instance, a few years ago, a surgeon sustained a severe injury to his elbow after falling on a slippery object in an Indiana grocery store. He sued the grocery store. Because he suffered permanent nerve damage, he was unable to practice as a surgeon ever again. He was awarded several million dollars because of the impact on his impaired future earnings. The same injury would not have been valued as high for someone with less significant vocational losses. Measuring this kind of loss in today’s dollars for different types of personal skills is somewhat complex, requiring expert testimony. Nonetheless, it is a very real component of damages that deserves compensation.
- General DamagesFinally, we have the concept of “general damages” (or “non-economic” damages). This includes things more difficult to measure, such as pain and suffering, emotional distress, or loss of enjoyment of life. Many in the general public have been conditioned to think there is something wrong with awarding such damages. In my legal practice, even those who consult us to explore options for their own injuries often still harbor those same views. That is due in no small part to a vigorous media campaign funded by powerful groups to misinform politicians and the general public about the impact of laws and jury verdicts in the areas of injury and malpractice law. Attorneys representing injured parties must actively work to overcome the resulting bias shared by members of the public who eventually are called to serve on the jury.Placing a value on these non-economic damages is more art than science. It is a situation-specific exercise that requires a comprehensive look at the client’s life and an evaluation of how life has been impacted by the injuries. The impact can be both emotional and physical. Determining these impacts is one thing – placing a value on them is another. Convincing an insurance adjustor – or a jury at trial – to pay your client money for those losses requires creativity and convincing communication skills. We live in a world where people assume people claiming injuries are out to get something for nothing. That has not been our experience, and our office would not accept such a case. But the result of such societal assumptions and attitudes is that getting justice is harder than ever for injured clients. But that should not deter people from seeking legal representation and exploring their options.On the other side of almost every case is an insurance company that will be required to cover the damages caused by its insured. I have spent years in this business – many of them working on the side of insurance companies. I have yet to encounter a case where an insurance company came forward and voluntarily offered the upper end of their own case evaluation right from the outset. It usually doesn’t ever happen without the injured party having legal representation. If you have been injured as a result of someone else’s negligent or reckless behavior, it is a good idea to at least consult with an experienced injury attorney to determine whether legal representation is appropriate in your case.
