California Pain and Suffering Damages
What is “Pain and Suffering”?
In law, the damage award is the monetary amount (usually) that the court determines to be adequate to compensate one for an injury or breach. Depending on the type of suit involved (e.g., breach of contract, personal injury, etc…) the rules vary rather significantly on what type of damages may be awarded. For instance, one cannot collect a punitive damage award on a pure breach of contract case (one where no fraud or intentional misrepresentation was made). However, punitive damages are available in tort cases where an individual’s actions are especially invidious; namely when malice or willful intent is present.
When an individual is a party to a personal injury suit, it is the jury or judge who decides what amount would be adequate compensation for a party’s injuries. The amount should be a sum that would make the party whole, or rather, put him/her back in the position they were in before the accident and/or injury had occurred.
In assessing the appropriate order of damages, the court considers both economic as well as non-economic damages. Economic damages, out-of-pocket costs such as medical bills and lost wages, are fairly easy to calculate as they are generally represented by bills, receipts, and pay stubs.
Non-economic damages cover the costs that aren’t represented by bills and receipts. In personal injury law, “pain and suffering” is a measure of non-economic damages used to compensate the injured party for the physical and emotional distress they incurred as a direct result of the other party’s misfeasance. It is the most common non-economic award given to a plaintiff.
The challenge in determining the appropriate amount to compensate for these non-economic losses is that these costs aren’t generally represented by tangible documents. Moreover, the law has not provided a clear formula on how to make such a calculation. Thus, in making an appropriate determination of how to gauge these damages, judges and jurors must use both their real life experiences as well as relevant information they have heard throughout the trial regarding the injured party’s changes quality of life, lifestyle, spending habits, and future business prospects.
Some of the factors jurors commonly consider are:
- The plaintiff’s mental and emotional state following the injury, including whether the plaintiff suffers from depression or embarrassment or any other psychological affect due to the injury;
- The type of injury and how severe it was;
- Whether the injury is chronic. How long it will last, whether or not it is likely to exacerbate in the future,…;
- How the injury affect the plaintiff’s quality of life. Has the plaintiff been limited in his/her daily activities, lifestyle,…
The total amount of damages for pain and suffering that an injured person may receive also depends on how much the injured person contributed to his/her own injuries. This theory is known as contributory negligence. In cases where a plaintiff is somewhat responsible for his/her own injury, his/her award for pain and suffering may be reduced by the same percentage that the jury finds the plaintiff responsible. For example, if the jury believes the plaintiff was 25% liable for his/her own injuries, they may take 25% off of the total pain and suffering award.
Published: August 23rd, 2012