Types of Damages
- Compensatory Damages
- Punitive Damages
- Nominal Damages
- Attorneys’ Fees and Court Costs
- Loss of income
- Cost of medical expenses/treatment
- Property damage
- Pain and suffering
- Mental anguish/emotional distress
- Loss of consortium
- Lost opportunity
Compensatory damages are derived from the word “compensate,” meaning “to make up for” or “to make whole”. Generally, these damages can be broken up into two sub-categories— actual damages and general damages. Actual damages seek to reimburse a plaintiff for out-of-pocket expenses incurred, or financial losses sustained. Actual damages typically include:
- Medical and hospitalization bills incurred to treat your injuries
- Wages lost due to work missed while you recuperate
- Costs of household or nursing help during recovery, including costs of wheelchair or crutches required
- Cost of rental car or substitute transportation
- Cost to replace or repair damaged property
As noted, injured victims can also sue for general damages in addition to actual damages. General damages include the things that can’t be precisely documented in dollars spent, including:
- Pain and suffering endured due to injuries and any subsequent mental anguish
- Disfigurement resulting from injuries
- Value of medical expenses you are likely to incur in the future
- Value of wages you are likely to lose in the future
- Permanency of injury and resulting pain and suffering
- Loss of consortium (benefits of a relationship)
- Loss of opportunity
In addition to compensatory damages, punitive damages may be awarded in certain cases. Punitive damages are not based on actual injuries sustained. Rather, they are a way to punish the defendant for intentional conduct or gross negligence – behavior that is so egregious that a civil court penalty is warranted in order to deter the defendant from committing the same act again in the future. Punitive damages are typically not awarded in Nebraska personal injury cases.
Nominal damages are minimal damage awards acknowledging that the plaintiff was legally wronged, while at the same time recognizing a lack of evidence establishing that the plaintiff suffered actual damages. Nominal damages are normally very small awards, and are allowed only in cases where actual injury is not required to be shown, such as with intentional torts.
Example: If you are pushed by someone in such a manner so as to be offensive, thus constituting the tort of battery, but you suffer no actual physical injury, you may be entitled to a minimal award of nominal damages.
In addition to damages, a successful plaintiff is also able to recover court costs incurred. Court costs include the cost of filing fees, process server fees, deposition transcripts, court transcriptions and translators. Attorneys’ fees are generally not included as part of a successful plaintiff’s recovery, though there are limited circumstances where procedural rules allow for the successful plaintiff to recover attorney’s fees and expert witness fees.
You are entitled to compensation if your injuries prevent you from working, causing you to lose income. For example, if you are a landscaper who can’t work for a week because you sprained an ankle in an accident, you are entitled to compensation for that week of lost wages. You are also entitled to lost wages if you miss work because of treatment.
If the injury is serious enough and you can no longer perform the duties of your job or occupation, you can sue for “loss of future earning capacity.” For example, if a construction worker who builds custom homes loses a hand in an accident, he or she can sue for loss of future wages. At Law Office of Thomas T. Inkelaar, we work with expert vocational and financial witnesses who can assist in proving the amount of economic loss that will be suffered in the future.
If the accident results in death, a family member can sue on behalf of the deceased person (decedent) for any lost income that the victim would have earned based on the work-life expectancy of the decedent. The future earnings are “discounted” to present value by reducing the total award. Example: Suppose the decedent, who was 55 years old, made $50,000 a year and his or her work life expectancy is another 10 years. A lump-sum payout of $500,000 would be more valuable today than $50,000 over 10 years because you can invest that money. Therefore, the $500,000 would be discounted. Several very complicated formulas are used for discounting.
A substantial medical bill is compelling evidence of the seriousness of an injury. Cost of medical care is one of the most important elements that we examine when calculating the potential value of a claim. Obviously, the higher your medical bills, the more damages you are entitled to. In addition, the cost of future medical expenses is an important consideration as well. If you are facing years of treatment that could last a lifetime, then the amount of damages you will be awarded will normally be substantially increased. Proving the amount of future medical care is an area that requires substantial personal injury experience and the use of appropriate experts.
You are entitled to compensation for any damage to your property in addition to your physical injuries. Automobile damage typically accounts for most property damage awards. In addition to the loss of value or repair costs associated with your vehicle, the contents of your car may also be damaged in an accident, and you can be reimbursed for damage to this property as well.
Property damage valuation is an art form that may require the services of a professional or expert appraiser. If the property has been completely destroyed so that it is of no further use and has no salvage value, the measure of damages can be set at the fair market value of the property immediately before its loss. Property damage is calculated based upon the value of the property prior to the accident, not replacement value.
If the property can be repaired, the amount of damages can be set at the amount it costs to repair the property plus the loss of its use by the owner. If the cost to repair the property exceeds the fair market value of the property before loss, the damages can be limited to the fair market value. In addition to the cost to repair or replace plus loss of use, interest and loss of profits may also be added as elements of damages. Finally, while your vehicle is being repaired you may be entitled to recover the costs of renting a car or other substitute transportation.
The most personal, and often the most difficult to prove element of all damages is the pain and suffering that an injured accident victim has to endure. At Law Office of Thomas T. Inkelaar, we take our job of demonstrating this aspect of your damages very seriously. Though pain can be felt only by you, it can be evidenced by reference to the use of painkillers, the frequency and length of your treatment, the types of treatment, and the recovery time. An attorney from Law Office of Thomas T. Inkelaar will interview you, your spouse if any, and any other witnesses who were familiar with your lifestyle before the accident so that it can be measured in comparison to your lifestyle after the accident. It is important to us to make sure that each and every aspect of your lifestyle that has been compromised is made known to the jury, and proven through witness testimony and other evidence. Your loss of enjoyment of life is a compelling element of your claim that requires careful attention and experienced counsel.
Obviously, a person who undergoes several surgeries followed by excruciating physical therapy for a shattered knee will likely receive higher damages for pain and suffering than an accident victim who does not need surgery or physical therapy. Similarly, an injury that takes one year to heal will be worth more in damages than one that takes only two months. In cases where there is a permanent injury, Law Office of Thomas T. Inkelaar will likely employ an expert to testify on your behalf as to the limitations imposed by the permanent condition and the value of compensation that may be appropriate. A permanent disability will normally significantly increase the damages awarded to you.
Though mental anguish and emotional distress are often confused with pain and suffering, they are not the same. It can be quite normal for an accident victim to experience some sort of emotional distress in addition to physical pain. Fear, anxiety, shock, grief, mental suffering, shame and embarrassment are some of the symptoms of mental anguish that can normally result from a traumatic accident.
Example: Suppose a mother pushing her child’s carriage down the sidewalk sees a car about to hit her and her child, but there is nothing she can do. The terror she experiences before the impact is considered mental anguish. States have put limits on who can sue for emotional distress and under what circumstances. The barriers are to prevent a possible proliferation of personal injury lawsuits based solely on mental anguish. In some states, if you are not the injured victim suing for emotional distress you have to pass what is known as the “zone of danger” test. Using the example above, the mother can sue for mental anguish even if she is not hurt, because she was so close to the zone of danger that she could have been hurt. The injured child’s father cannot sue for emotional distress if he was not present during the accident or at a distance away from the zone of danger.
Another limit some states have imposed on emotional distress lawsuits is the “physical manifestation rule,” used in cases where the plaintiff is not injured. For example, if you are suing for emotional distress, among other things, in a libel suit, you’d have to show that the emotional distress resulted in “physical manifestations” — e.g., loss of weight, depression, or ulcers.
A serious accident can leave a victim in serious pain and permanently disabled. Though those types of damages are separately compensable, personal injury laws also permit injured victims or the relatives of a decedent to sue for “loss of consortium,” or the loss of love and companionship as a result of an accident. A severe and disabling injury can affect a personal relationship in a variety of ways, as where many of the romantic and recreational activities that two spouses once enjoyed together may no longer be possible.
Loss of consortium would also apply if an accident left a husband or wife unable to perform chores that the spouse relied upon. Though this type of recovery usually is less than the amount of recovery awarded for pain and suffering, loss of consortium can be a major element of damages in extraordinary circumstances, as where an accident causes a victim to become paraplegic or otherwise totally disabled.
In addition to lost wages and future lost wages, you can seek compensation for any lost business opportunity resulting from an accident. It is important to be careful when presenting this type of damages to a jury. For example, not every child who suffered a facial scar in an accident “would have been a movie star.” Only where there is ample proof of a lost opportunity should it be presented, otherwise speculative claims may be rejected by a jury and hurt your credibility for recovery on other, more concrete claims.