Calculating Damages in Personal Injury and Wrongful Death Cases
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Calculating Damages in Personal Injury and Wrongful Death Cases

Thursday, November 01, 2001By Richard Alexander
What damages can be collected in a personal injury or wrongful death case under California law? Q. In a personal injury jury trial, how does the jury make an award of damages?
A . If the jury finds the plaintiff is entitled to a verdict against defendant, the jury "must" award plaintiff damages (economic and non-economic) in an amount that will reasonably compensate him/her for each of the following elements of claimed injury, damage, loss, or harm, but the harm or loss was must have been caused by the negligent act or wrongful conduct upon which the jury bases liability.
Q. What is the difference between economic and non-economic losses?
A. The term economic damages means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities. The term non-economic damages means subjective non-monetary losses including but not limited to pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, humiliation and injury to reputation.
Q. What can a jury include in an award?
A. The amount of award (including economic and non-economic damages) shall include: The reasonable value of medical care, services and supplies reasonably required and actually given in the treatment of the plaintiffs to the present time and the present cash value of the reasonable value of similar items reasonably certain to be required and given in the future. The reasonable value of working time lost to date. In determining this amount, the jury will consider evidence of plaintiffs¹ earnings and earning capacity, how they ordinarily occupied themselves, and find what was reasonably certain to have been earned in the time lost if there had been no injury. One's ability to work may have a monetary value even though that person is not employed by another. The reasonable value of services performed by another in doing things for the plaintiffs which, except for the injury, plaintiffs would ordinarily have performed, is often included in the award. The present cash value of earning capacity reasonably certain to be lost in the future as a result of the injury in questions. Reasonable compensation for any pain, discomfort, fears, anxiety and other mental and emotional distress suffered by the plaintiffs and of which injury was a cause and for similar suffering reasonably certain to be experienced in the future from the same cause.
Q. What does present cash value mean?
A. Any finding of future economic loss must be only for its present cash value. Present cash value is the present sum of money which, together with the investment return thereon when invested so as to yield the highest rate of return consistent with reasonable security, will pay the equivalent of lost future benefits at the times, in the amounts, and for the period that you find such future benefits would have been received. The present cash value normally is slightly less or equal to the amount the jury finds to be the loss of such future benefits.
Q. Is there any formula to be followed by a jury to determine pain and suffering?
A. No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation. Furthermore, the argument of attorneys as to the amount of damages is not evidence of reasonable compensation. In making an award for pain and suffering the jury is required to exercise its authority with calm and reasonable judgment and the damages shall be just and reasonable in the light of the evidence.
Q. How does a jury determine the amount of damages in a wrongful death case?
A. If the jury finds the defendant at fault in causing a death, the jury will award as damages, [economic and non-economic,] such sum as, under all the circumstances of the case, will be just compensation for the loss which each heir has suffered by reason of the death. In determining such loss, the jury may consider the financial support, if any, which each of said heirs would have received from the deceased except for such death, and the right to receive support, if any, which each of said heirs has lost by reason of such death. The right of one person to receive support from another is not destroyed by the fact that the former does not need the support, nor by the fact that the later has not provided it. The jury may also consider:
  1. The age of the deceased and of each heir;
  2. The health of the deceased and each heir immediately prior to death;
  3. The respective life expectancy of the deceased and of each heir;
  4. Whether the deceased was kindly, affectionate or otherwise;
  5. The disposition of the deceased to contribute financially to support the heirs;
  6. The earning capacity of the deceased;
  7. The deceased¹s habits of industry and thrift; and
  8. Any other facts shown by the evidence indicating what benefits each heir might reasonably have been expected to receive from the deceased had he lived.

With respect to life expectancies, the jury will only be concerned with the shorter of two, that of an heir or that of the decedent, as one can derive a benefit from the life of another only so long as both are alive. Under California law a jury is instructed to award reasonable compensation for the loss of love, companionship, comfort, affection, society, solace or moral support, and any loss of the enjoyment of sexual relations. In determining the loss which each heir has suffered, the just is not allowed to consider:

  1. Any pain or suffering of the decedent;
  2. Any grief or sorrow of the heirs; or
  3. The poverty or wealth of any heir.

The jury is also required to include in its award an amount that will compensate for whatever reasonable expense was paid out or incurred for funeral services in memory of the decedent and [or] for burial [disposition] of the body. In determining that amount, the jury shall consider the decedent¹s station in life and the financial condition of the estate, as these circumstances have been shown by the evidence.

Q. Are there any different consideration in cases involving the death of a child?
A. In determining the damage suffered as a result of the loss of a child, the jury may consider not only the benefits that plaintiff was reasonably certain to have received from the earnings and services of his/her child during the child¹s minority, but also the support and financial benefit which it is reasonably certain plaintiff would have received from the child after the latter majority and during the period of their common expectancy of life. The jury may also consider [as non-economic damages] what loss, if any, plaintiff has suffered, and will suffer in the future with reasonable certainty, by being deprived of the love, companionship, comfort, affection, society, solace or moral support of the child. As an offset against the factors of loss mentioned, the jury is ordered to take into consideration what it would have cost the plaintiff to support and educate the deceased child, had she lived. In weighing these matters, the jury may consider the age of the deceased and of plaintiff, the state of health and physical condition of deceased and of plaintiff as it existed at the time of the death and immediately prior thereto; their station in life; their respective expectancies of life as shown by the evidence; the disposition of the deceased, whether it was kindly, affectionate, or otherwise; whether or not she showed a likelihood of contributing to the support of plaintiff; the earning capacity, if any, of the deceased; and all other facts in evidence that throw light upon the question of what benefits each plaintiff might reasonably have been expected to receive from the deceased child had she lived. With respect to the matter of life expectancy, the jury is reminded that it must keep this point in mind: the prospective period of time is only the shorter of the two life expectancies, that of the plaintiff or that of the deceased child. In determining such loss the jury is not to consider any grief or sorrow that she may have suffered by reason of the death of said child, or any pain or suffering of the child before her death. As in the death of an adult, the jury includes in its verdict an amount that will compensate for whatever reasonable expense was paid out or incurred by the plaintiff for funeral services in memory of the deceased and for burial of the body. In determining that amount the jury shall consider the station in life and financial condition of the plaintiff and her deceased child, under the circumstances.
Q. What if the jury is not about expected future damage will be suffered?
A. The jury is not permitted to award a party speculative damages, which means compensation for future loss or harm which, although possible, is conjectural or not reasonably certain. However, the jury will compensate a party for loss or harm caused by the injury in question which is reasonably certain to be suffered in the future.
Q. How does California law treat injuries which aggravate a pre-existing condition?
A. A person who has a condition or disability at the time of an injury is not entitled to recover damages for that injury. However, he/she is entitled to recover damages for any aggravation of such pre-existing condition or disability (proximately) (legally) resulting from the injury. This is true even if the person's condition or disability made him/her more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury. Where a pre-existing condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation.
Q. What if the original injury causes or results in complications?
A. If the jury finds that the defendant is liable for the original injury (if any) to the plaintiff, he/she is also liable: (1) For any disease which is contracted because of lowered vitality resulting from the original injury and which rendered the plaintiff peculiarly susceptible to such disease, (2) For any aggravation of the original injury or additional injury caused by negligent medical or hospital treatment or care of the original injury, (3) For any injury sustained in a subsequent accident which is a normal consequence of an impaired physical condition caused by the original injury and which would not have occurred had the plaintiff's physical condition not been impaired.
Q. When are punitive damages awarded?
A. If the jury finds that plaintiff suffered damage as a [proximate][legal] result of the conduct of the defendant, the jury may then consider whether it should award punitive damages against the defendant for the sake of example and by way of punishment. The jury may in its discretion award such damages, if, but only if, the jury finds by clear and convincing evidence that said defendant was guilty of either oppression, fraud, or malice. "Malice" means conduct which is [intended by the defendant to cause injury to the plaintiff] [or] [despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.] A person acts within conscious disregard of the rights or safety of others when he/she is aware of the probable dangerous consequences of his/her conduct and willfully and deliberately fails to avoid those consequences. "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. "Despicable conduct" is conduct which is so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people. "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. The law provides no fixed standards as to the amount of punitive damages, but leaves the amount to the jury's sound discretion, exercised without passion or prejudice. In arriving at any award of punitive damages, the jury is to consider the following: (1) The reprehensibility of the conduct of the defendant. (2) The amount of punitive damages which will have a deterrent effect on the defendant in the light of defendant's financial condition, (3) The amount of actual damages.If the jury finds that plaintiff is entitled to an award of punitive damages against defendant, the jury shall state the amount of punitive damages separately in its verdict.
Q. Can an employer be liable for punitive damages as a result of an employees actions?
A. Punitive damages may be awarded against an employer for acts of the employee only if the employer authorized or ratified the conduct which is found to be the basis for punitive or exemplary damages. If the employer is a corporation, the advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud or malice must be on the part of an officer, director, or managing agent of the corporation.
Q. Who has managerial authority in a corporation or company?
A. An employer acts in a managerial capacity where the degree of discretion permitted the employee in making decisions is such that the employee's decisions will ultimately determine the business policy of the employer.

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