| TORT DAMAGES |
Law Office of Vincent D. Sowerby, P.C.
Corner of G and Newcastle Streets, Brunswick, GA
912-280-0330
Corner of G and Newcastle Streets, Brunswick, GA
912-280-0330
Nominal Damages: Nominal damages are awarded when the defendant's conduct has been
wrongful, but did not cause any real harm to the plaintiff. The classic case for an
award of nominal damages is the plaintiff who sues defendant for trespass because he
walked on the grass. What is a bent blade of grass worth? $1.
Special Damages: Special damages can be itemized to the penny and calculated on an
adding machine. They are actual economic harm or financial loss. They include lost
income, medical bills, and any other provable out of pocket loss. The key to identifying
an item of damage as "special" is whether it is something that can be determined
mathematically.
General Damages: General damages, on the other hand, cannot be determined mathematically
as their sole measure is the enlightened conscience of a jury. How much are a broken
arm, whiplash, an amputated leg, a fat lip, or a trashed reputation worth? How much is
one hour of life without pain worth? That same hour with a permanent disability? A jury
literally picks a number out of thin air, using only the collective opinion of its
members as to how much is fair. The range of general damages is so broad that it is
easiest to say that it includes everything that is not special or punitive.
Punitive Damages: Punitive damages are awarded only in those tort cases in which it is
proven by clear and convincing evidence that the defendant's actions showed wilful
misconduct, malice, fraud, wantonness, oppression or that entire want of care which would
raise the presumption of a conscious indifference to consequences. Clear and convincing
evidence is a middle level of proof, higher than a preponderance of the evidence, but
lower than beyond a reasonable doubt, which is the standard applicable only to criminal
cases. Punitive damages are not awarded as compensation to the plaintiff, but solely to
punish, penalize or deter a defendant from repeating the wrongful conduct. While the
focus is always on the plaintiff for compensatory damages, the opposite is true for
punitive damages. The one and only time that a jury ever gets to hear evidence about a
person's worldly circumstances (i.e.- his income and his wealth or lack thereof) is when
it considers the amount of money which would be sufficient to deter a person from
repeating wrongful conduct. 1980's tort reform placed a cap of $250,000 on all awards of
punitive damages, except when the jury finds that the defendant acted with the specific
intent to cause harm or was under the influence of alcohol, glue or drugs. While there
is no cap on the amount of punitive damages which can be imposed on a manufacturer of a
defective or dangerous product, the courts of Georgia may do so only once, no matter how
many times that product causes injury, and then 75% of the award must be paid to the
State of Georgia and not to the plaintiff who spent the time, effort and money to obtain
that award.
In a jury trial, the procedure is that a jury first must determine whether punitive
damages will be imposed. If so, then the trial resumes so that the jury can receive
evidence relevant to the amount. This is called a bi-furcated trial. Punitive damages
can never be awarded without the jury first awarding compensatory damages.
wrongful, but did not cause any real harm to the plaintiff. The classic case for an
award of nominal damages is the plaintiff who sues defendant for trespass because he
walked on the grass. What is a bent blade of grass worth? $1.
Special Damages: Special damages can be itemized to the penny and calculated on an
adding machine. They are actual economic harm or financial loss. They include lost
income, medical bills, and any other provable out of pocket loss. The key to identifying
an item of damage as "special" is whether it is something that can be determined
mathematically.
General Damages: General damages, on the other hand, cannot be determined mathematically
as their sole measure is the enlightened conscience of a jury. How much are a broken
arm, whiplash, an amputated leg, a fat lip, or a trashed reputation worth? How much is
one hour of life without pain worth? That same hour with a permanent disability? A jury
literally picks a number out of thin air, using only the collective opinion of its
members as to how much is fair. The range of general damages is so broad that it is
easiest to say that it includes everything that is not special or punitive.
Punitive Damages: Punitive damages are awarded only in those tort cases in which it is
proven by clear and convincing evidence that the defendant's actions showed wilful
misconduct, malice, fraud, wantonness, oppression or that entire want of care which would
raise the presumption of a conscious indifference to consequences. Clear and convincing
evidence is a middle level of proof, higher than a preponderance of the evidence, but
lower than beyond a reasonable doubt, which is the standard applicable only to criminal
cases. Punitive damages are not awarded as compensation to the plaintiff, but solely to
punish, penalize or deter a defendant from repeating the wrongful conduct. While the
focus is always on the plaintiff for compensatory damages, the opposite is true for
punitive damages. The one and only time that a jury ever gets to hear evidence about a
person's worldly circumstances (i.e.- his income and his wealth or lack thereof) is when
it considers the amount of money which would be sufficient to deter a person from
repeating wrongful conduct. 1980's tort reform placed a cap of $250,000 on all awards of
punitive damages, except when the jury finds that the defendant acted with the specific
intent to cause harm or was under the influence of alcohol, glue or drugs. While there
is no cap on the amount of punitive damages which can be imposed on a manufacturer of a
defective or dangerous product, the courts of Georgia may do so only once, no matter how
many times that product causes injury, and then 75% of the award must be paid to the
State of Georgia and not to the plaintiff who spent the time, effort and money to obtain
that award.
In a jury trial, the procedure is that a jury first must determine whether punitive
damages will be imposed. If so, then the trial resumes so that the jury can receive
evidence relevant to the amount. This is called a bi-furcated trial. Punitive damages
can never be awarded without the jury first awarding compensatory damages.
| Wrongful Death: The amount of damages awarded for the wrongful death of a person is the full value of the life of the decedent, as seen from the decedent's point of view. The full value of a person's life includes not just that person's economic value, such as how much money he would have earned over his remaining life, reduced to present day value, but also hedonistic damages, such as the value of watching a sunrise while listening to the birds with coffee in hand, the satisfaction of a job well done or seeing grandchildren open presents on their birthdays. What is not recoverable in an action for wrongful death is compensation for the loss and grief felt by the decedent's survivors. The right to recover the funeral bill and medical expenses belongs to the estate of the decedent. Property Damage: The measure of recovery for damage to property obviously depends on the type of property, but generally speaking it will be the lesser of the cost of repair or the fair market value of the property before it was damaged. Say a car is worth $5,000, but it would cost $6000 to fix it. The damages are $5,000. If it would cost only $1,000 to repair it, then the damages are $1,000 plus the difference between the value of a car that has never been wrecked and one that has been wrecked and repaired. Fair market value is the price at which an item of property would change hands in an arms length transaction between a buyer and a seller, neither of whom were being compelled to buy or sell, but were doing so freely and voluntarily. The measure of damages for a house that has been eaten by termites, or had a roof leak, or for some other case involving real estate is generally the cost to repair it or the difference in value of the house as it was represented to be or as it should have been and as it truly is. |
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| Future Medical Bills or Loss of Income: To obtain an award of damages for anything that has not yet happened requires proof that, more likely than not, the future event will occur. It is not good enough for a doctor to say that surgery may be necessary. He has to say that it is necessary. A court will not allow an award of damages based on speculation. The plaintiff has the burden to prove that the medical services will probably be necessary in the future, to identify the services that will be needed and to prove the cost of those services at the future point in time at which they will probably be rendered, then to reduce that to present day value. As for lost income, the plaintiff must be able to prove the amount of future income that will be lost with reasonable certainty. Mathematical precision is not required. |
| Insurance: When a victim of negligence has the foresight to purchase insurance to pay the medical bills or otherwise has any source by which to pay the bills other than the tortfeasor, he has a "collateral source." Evidence of collateral sources is never used to diminish the amount of the defendant's financial responsibility to pay for the harm he caused to the plaintiff. If the jury knew that the hospital bill was paid by workers compensation or by plaintiff's health insurance, they are less likely to make the defendant pay for that item. That is not fair to the plaintiff as reduces the amount of compensation. It is not fair to society aat large as it shifts responsibility away from the tortfeasor and on to the shoulders of those people with enough foresight to buy insurance, which is to say, to the very people who become the victims of tortfeasors. Furthermore, the plaintiff may very well have to re-pay his insuror if he receives compensation from the tortfeasor. Likewise, a jury never gets to know that the defendant has insurance that will pay whatever damages the jury may award. This is to keep the playing field fair to the defendant, because if the jury knows that insurance is going to pay, it will be more likely to make an award than it would be if it thinks the defendant will have to pay it himself. Likewise, if they know how much insurance coverage there is, they are more likely to award no more and no less than that amount, which of course, would be totally arbitrary and not reasonably calculated to compensate the plaintiff fairly for harm actually done. |
The end result of any action at law is a judgment that someone does or
does not owe money. The case is always about money. How much money
is the subject of damages. This page will discuss the damages that
are recoverable in tort.
TORT DAMAGES:
There are two kinds of damages that can be recovered in a tort action,
compensatory and punitive. Compensatory damages compensate a
plaintiff for harm done. Punitive damages punish a defendant for bad
conduct. Compensatory damages are nominal, special or general.
does not owe money. The case is always about money. How much money
is the subject of damages. This page will discuss the damages that
are recoverable in tort.
TORT DAMAGES:
There are two kinds of damages that can be recovered in a tort action,
compensatory and punitive. Compensatory damages compensate a
plaintiff for harm done. Punitive damages punish a defendant for bad
conduct. Compensatory damages are nominal, special or general.
| Contributory or Comparative Negligence: Back when tort law was first developing, if the plaintiff was in the slightest bit at fault for his own injury, if his own negligence contributed to cause his injury, then he could not recover anything from anyone. This was called Contributory Negligence. Over the years, a concept of Comparative Negligence evolved so that the negligence of the plaintiff and the defendant were compared to each other, so that the plaintiff would recover from the defendant only that portion of the injury that was the defendant's fault. So, if the plaintiff was 75% at fault and the defendant was 25% at fault for causing harm, and the amount of money which would be fair compensation for the total harm was $100, then the Defendant was 25% responsible for that $100 and the plaintiff could recover $25. Georgia follows a modified version of these doctrines. In Georgia, if the plaintiff's negligence equals or exceeds the negligence of the defendant, then the plaintiff recovers nothing, meaning if the plaintiff is at least halfway at fault for his own injury, he loses. If he is less than 50% at fault, then his total recovery is reduced by his own percentage of the fault. In the above example (75%), he loses; but if the plaintiff had been 25% at fault and the defendant 75% at fault, then the defendant would pay $75. |
| Motor Vehicle Insurance: In Georgia, everyone must have motor vehicle insurance that will pay up to $25,000 to any one person who is injured in a collision which is the fault of the insured person and up to $50,000 total, no matter how many people are injured in the collision. Insurance companies do sell higher limits, such as $100,000 per person/$300,000 per accident. A policy of motor vehicle insurance actually has a lot of different kinds of insurance in addition to liability coverage. Liability insurance pays when the insured person (the defendant tortfeasor) is liable to a victim of negligence (the injured plaintiff). Uninsured or underinsured motorist coverage (called UMI) will pay the insured when the at fault driver has no insurance or does not have enough. Med Pay insurance pays the medical bills for anyone injured by the car regardless of fault. Comprehensive insurance pays for damage to the insured vehicle not caused by a collision (falling trees, etc.). Collision insurance pays for damage to the insured vehicle caused by a collision, regardless of fault. In America, insurance follows the car first then the insured person, meaning that if John drives Betty's car and causes a collision, Betty's insurance has to pay first. If Betty did not buy enough insurance to pay for all the harm John caused, then John's insurance will pay after Betty's insurance. UMI coverage must be at least as large as the liability coverage, unless the insurance company got the insured to sign a piece of paper specifically saying he wanted buy purchase UMI with limits lower than his liability coverage. |
| SUBROGATION / RIGHT OF REIMBURSEMENT: As mentioned above under the heading of "Insurance", sometimes a plaintiff does not get to keep the money a court awards him as compensation for harm done. If someone other than the at fault party or the liability insuror for the at fault party paid for the harm caused to the plaintiff, which most typically is going to be Medicare, Medicaid, health insurance or med-pay, then sometimes that other payor has a legal right to get its money back when the plaintiff collects from the defendant. If its Medicare, the federal government can sue the attorney who represented the plaintiff to get the money back, so obviously the attorney has a personal interest in handling this matter. In practice, Medicare and Medicaid only take a percentage, meaning that if they paid $10 and plaintiff recovers $100, but the cost of procuring that $100 was $30 (i.e.- expenses of litigation and attorney's fees), then the amount Medicare or Medicaid get back is $10 minus 30% or simply $7. Georgia enacted a statute that allows the plaintiff to insist that the respond under a time limit that is practically impossible for them to meet. So if Georgia law controls, then the chances are good that the plaintiff will get to keep all the money and not have to reimburse the collateral source. Federal law, specifically E.R.I.S.A., which applies to most of the health insurance plans sponsored by big companies for the benefit of its employees, strongly favors the insuror. |