by Jordan Maurer
The value of a personal injury case is measured by what are called “damages.” When someone is injured due to the actions of another person or entity, the injured person is lawfully entitled to recover damages. Damages are the measurement of compensation to put the injured person back in their “pre-injury position.” What does that mean? Pre-injury position means the same or similar circumstances the person was in before being injured. It’s obviously impossible to accomplish this because even if someone heals from an injury, they still had to go through a very painful experience that cannot be undone. However, our civil justice system is designed to compensate injury victims for their losses. We do that by evaluating the total damages.
It is important to understand that when someone acts carelessly and causes someone else to get hurt, the person causing the injury incurs a debt to the injured person. The idea of providing compensation for a loss goes back thousands of years. For example, the Book of Exodus in the Christian Bible includes several passages where Moses is directed by God to deliver to the Israelites laws providing compensation requirements for injury-causing events (e.g. quarreling, the goring ox, uncovered pits, etc.). The U.S. legal system is modeled after the English legal system, which has roots in ancient Christian Scripture as well as Roman and Greek laws. Just like those systems, our legal system is designed to provide justice to individuals who are harmed by the unlawful acts of others. Let’s start by comparing our criminal legal system to the civil legal system. In California, just like in other states, we have a penal code that codifies the criminal laws of our state. If you commit a crime (i.e. break the law), then you can be punished in accordance with the penalties stated in the penal code. People who are convicted of crimes are often said to “owe a debt to society” for the crimes they’ve committed. The “debt” is generally paid through the punishment of serving time in jail or prison. However, in some situations, a criminal may also be required to pay an individual person back for harm they’ve personally inflicted on that specific person. For example, if a bookkeeper embezzles money from a business owner over several years and is eventually caught and convicted of the crime, the bookkeeper may have to serve prison time AND pay back the business owner as “restitution” for the crime. This is how our criminal laws provide compensation for the debt the criminal owes to the person they hurt. Like the criminal system where a penal code is used, California has a civil code that codifies the general rights and duties of everyone living in the state. Unlike the penal code, however, if someone violates the civil code, they’re not necessarily a criminal deserving to be punished by serving prison or jail time. In other words, their debt is not necessarily to society, but to the individual person they’ve harmed by violating the civil code. Important to note, however, is that by violating the civil code, the person has still incurred a debt – and the injured person is still entitled to compensation. Compensation for that debt is measured by the “damages” experienced by the injured person. Also, unlike the criminal system, however, the debt one incurs by breaking the civil system is often insurable. In other words, you cannot get insurance for intentionally committing a crime, but you can get insurance for failing to act reasonably and causing injuries to someone else, even if in doing so there was no intent to cause harm. Insurance does not cover all types of damages (e.g. see discussion below about punitive damages), but it does cover most types of damages – which is why California Insurance Code § 11580.1 and California Vehicle Code § 16056 require all drivers in California carry the following minimums for liability insurance: - $15,000 for injury/death to one person; - $30,000 for injury/death to more than one person; and - $5,000 for damage to property. As noted above, damages are the measurement of compensation to put the injured person back in their “pre-injury position.” There are really two types of damages that can be used to measure one’s loss in an injury case: economic damages (sometimes called special damages) and noneconomic damages (sometimes called general damages).
Economic damages are fixed amounts, such as the amount of a medical bill or the amount of time someone missed from work due to an injury. The term “economic damages” is defined by the Fair Responsibility Act of 1986 (codified as Civil Code §§ 1431-1431.5, commonly known as Proposition 51) as follows: 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.
An injured person can recover damages for necessary medical treatment. The measure of past medical expenses is the dollar amount actually paid for necessary medical treatment. Recoverable damages for past medical expenses may be less than the amount billed by the medical provider. If the medical provider accepts less than the bills amount, evidence of the full amount billed is not relevant to past medical expenses. A plaintiff whose medical expenses are paid through private health insurance or government-provided health insurance may only recover the amounts actually paid to the medical providers, even if it is less than the billed amount.
An injured person can recover lost wages, which is measured by the full value of the time he or she was forced to miss work. Missed time from work includes both recovery time and time lost for medical appointments. Specific losses can include hourly and salary wages, commissions, bonuses, tips, overtime, lost benefits, sick leave and vacation time, and lost or delayed promotions. When someone is catastrophically injured and cannot work anymore, the injures person can recover for the diminished capacity to earn future income due to impaired skills, strength and abilities.
A spouse that contributes to a marital partnership by maintaining the family home and providing services to the family can recover for the lost value of family services due to an injury. The lost value is viewed the same as lost income. Damages for loss of the injured person’s services are recoverable when (1) the services are provided without charge by other family members, (2) someone is hired to provide the services, or (3) the services go unprovided. A spouse can also claim the lost ability to earn future income when there is a demonstrated intent and ability (before the injury causing event) to take paid employment in the future.
Damages for the cost or value of personal services are recoverable. This can include services such as assistance with dressing, eating, bathing, hygiene, and commuting.
Noneconomic damages are not fixed and are not easily quantifiable. California’s jury instruction (CACI 3905A) defines noneconomic damages as physical pain, mental suffering and emotional distress. It’s really the measurement of the impact an injury has on someone’s quality of life. However, unlike the fixed amount of the economic damages, it is left to the jury to decide the amount of noneconomic damages needed to compensate an injured person. The term “noneconomic damages” is defined in Civil Code § 1431.2(b)(2), for purposes of Proposition 51, as follows: Subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation, and humiliation.
There are three types of pain: (1) physical pain, (2) phantom pain, and (3) psychogenic pain. Physical pain is experienced when nerve impulses transmit information to the brain that something is wrong with the body. Phantom pain is the experience of feeling pain to a limb or organ that the person no longer possesses, but the nerve pathways still transmit an impulse to the injured person’s brain. Psychogenic pain originates in the mind and is the experience of pain even though the injured body part has returned to its preinjury condition.
Suffering is characterized as having both physical pain and mental components such as emotional distress, fright, shock, nervousness, anxiety, worry, grief, embarrassment, humiliation, mortification, indignity, apprehension, fear, terror, and ordeal. For example, most people experience a period of fear of driving after being involved in a serious motor vehicle collision.
Damages for future economic and/or noneconomic damages are recoverable if there is a proven “reasonable certainty” the claimed harm will be experienced by the injured person. It is not enough to claim it’s merely possible for future harm. This burden is often established through the testimony of a treating medical provider. Also, future damages must be “discounted” to present value, meaning that the awarded amount for future damages must be in an amount that wisely invested will cover the necessary future medical expenses.
Another type of damages that arise in a personal injury case are punitive damages, which are only available in limited circumstances, such as when the defendant is guilty of oppression, fraud, or malice.
California distinguishes civil cases by the "amount in controversy" and recognizes three types of cases: small claims, limited civil, and unlimited civil. The small claims court hears cases brought by individuals (i.e. people) valued at $10,000 or less (for companies, the jurisdiction limit is $5,500). And the superior court has jurisdiction over limited civil cases (claims valued at $25,000 or less) and unlimited civil cases (claims valued over $25,000). Who decides the value of the case? Ultimately, either a judge in a bench trial or a jury in a jury trial. However, when getting the case started by filing a complaint, the plaintiff determines the amount in controversy, but must be ready to prove the damages stated in the complaint.
The above is a broad overview of the types of damages one can experience in a personal injury case. Taking all of the above information into consideration, one can see that valuing a personal injury cases is not a simple task. There is no mathematical formula when noneconomic damages and/or punitive damages are involved, which is why we have a jury system where members of our community can collectively decide what the value of someone’s loss is, or in other words, what the debt incurred by the injury-causing party should be.