Damages for Personal Injury

Question 1

What are the two main categories of personal injury damages?

Answer 1

1. Economic (Special)

2. Non-Economic (General)

Question 2

Define Economic Damages?

Answer 2

It typically begins with accounting for medical expenses and wage loss.

Question 3

Define Non-Economic Damages?

Answer 3

Pain and suffering, humiliation, shock, fright, mortification, scarring, disfigurement, disability, and loss of enjoyment of life.

Question 4

Define Loss of Consortium Claims?

Answer 4

The spouse of an injured tort victim may have a claim for loss of consortium, meaning loss of services, love, society, and companionship.

Question 5

Define the Collateral Source Rule?

Answer 5

It bars evidence of health or other insurance, gratuitous payments, and other reimbursement for the tort claimant’s losses.

Question 6

Define how a court may proceed with excessive damages?

Answer 6

On motion for remittitur, the court will reduce or set aside excessive damages verdicts which are the result of passion and prejudice or not supported by the evidence.

Question 7

Define Subrogation Rights of Insurers?

Answer 7

Insurers who pay for the plaintiff’s losses may have the contract right to reimbursement out of the plaintiff’s tort recover OR to seek recovery if the plaintiff has not pursued it.

Question 8

Define Duty to Mitigate Damages?

Answer 8

Tort claimants have the duty to mitigate their damage, meaning to take reasonable action to reduce their loss.

Question 9

Explain Aggravation of Pre-Existing Conditions?

Answer 9

Tort claimants may recover for aggravation of pre-existing conditions and hold defendant liable for all disability IF the parties are unable to distinguish the old condition from the new injury.

Question 10

Explain Damages Caps?

Answer 10

Damages caps limit personal injury plaintiff’s recoveries in many states, although some states have held caps unconstitutional.

Question 11

What are structured settlements?

Answer 11

The tax code permits tort claimants to have a 3rd party structure their settlements without tax on the investments’ earnings.

Question 12

What are contingency fees?

Answer 12

Work is done on a case based on contingency, and the attorney will not be paid at all or if they reach settlement, only then will they collect a fee. Contingency fees must be reasonable (below 40%)

Question 13

Explain Motion in Limine?

Answer 13

Parties may challenge the admissibility of inflammatory damages evidence with a motion in limine heard before trial.

Question 14

Explain wrongful death actions?

Answer 14

Wrongful-death acts in all 50 states allow tort recoveries for death, but the claimants must still have an underlying tort theory such as negligence.

Question 15

How do you bring about a wrongful death action?

Answer 15

Wrongful-death actions are usually brought in the name of the decedent’s estate and controlled by the estate’s personal representative.

Question 16

Who are the beneficiaries of a wrongful death action?

Answer 16

Spouses and children are typical beneficiaries under wrongful-death acts, as may be parents and possibly siblings and other lineal descendants.

Question 17

How do you measure loss in a wrongful death action?

Answer 17

Wrongful death acts differ as to the measure of loss, some limited to pecuniary (money) loss while others allow non-economic loss to beneficiaries and some even loss to the estate.

Question 18

What do survival actions do?

Answer 18

Survival actions permit the estate to recover for losses the decedent suffered before death.

Question 19

How do you measure property damage?

Answer 19

The usual measure of damages for property loss is the market value of the property at the time of loss.

Question 20

How do you measure property loss?

Answer 20

Personal value to the owner is not usually considered unless the loss involved an item having the history of a family heirloom.

Question 21

How do you measure damges for temporary deprivation?

Answer 21

Damages for temporary deprivation may be measured by rental value, whereas damages for partial destruction may be measure by reduction in market value.

Question 22

Explain punitive damages?

Answer 22

Some jurisdictions allow punitive damages in some cases where there is a more culpable wrong, to punish the defendant rather than compensate the plaintiff.

Question 23

What does the Constitution say about punitive damages?

Answer 23

The Constitution prohibits states from awarding excessive punitive damages, measured against the actual damges, the reprehensibility of the tortious conduct, and the nature of other available civil and criminal penalties.