Glossary: Personal-Injury Damages

Compensatory damages - "General" and "special damages" (see below) together comprise compensatory damages, that is, an amount awarded to a plaintiff to compensate for a proven injury or loss.

Diminished earning capacity - See "lost earning capacity."

Disfigurement - When the injury has left the plaintiff deformed or disfigured, e.g., by horrible scars or other insults on one's personal appearance, the plaintiff may be able to collect damages for his or her mental suffering caused by being conscious of the disfigurement. These damages are sometimes included as an element of other types of damages, such as mental anguish.

Emotional distress - See "mental anguish."

Future medical expenses - Recovery is permitted if the plaintiff proves that he or she will need continued medical care as a result of the defendant's wrongful act. The proof must be sufficient for the jury to make an approximate estimate of the cost.

Future profits - Recovery for projected profits that, because of the injury, will not be earned. Proof requires a showing that there is a reasonable basis for determining the amount; speculation is not proof.

General damages - Compensation for harm that ordinarily results from wrongful conduct; sometimes also called direct damages. These damages may include compensation for physical and mental pain or suffering and/or loss of enjoyment of life and are, by their nature, damages which cannot be definitively measured in terms of money. General damages therefore may be recovered without specific proof of any amount; the facts and circumstances of each case control. Compare to "special damages," below.

Goodwill - An intangible value of a business based on the business' ability to provide customers with the services and goods they want, willingness to stand behind products and warranties, and the reputation of the product or the business.

Hedonic damages - See "loss of enjoyment of life."

Household services - The cost of hiring somebody to do things around the house while the plaintiff is recuperating, provided that the expense would not have been incurred had the plaintiff not been injured. It is sometimes included as a medical expense.

Loss of consortium - Deprivation of the benefits of married life, that is, the affection, solace, comfort, companionship, society, help and assistance, and the sexual relations between spouses. Usually the uninjured spouse makes the claim and his or her recovery will depend on whether the injured spouse recovers any damages. Sometimes the injured person will make the claim as well. A value is placed on this loss by considering the couple's individual life expectancies, whether the marriage was stable, how much care and companionship was bestowed upon the uninjured spouse (or vice versa), and the extent to which the benefits of married life have been lost. Not every physical injury will result in a loss of consortium or other "general damages" (see above).

Loss of consortium of a child - Parents may be able to recover damages when their child is injured when the injuries are severe enough that they interfere with the normal relationship between parents and their children.

Loss of enjoyment of life - A diminished ability to enjoy the day-to-day pleasures of life, it is an item of general damages, meaning there is no precise way to place a monetary value on it. Some states treat it as a form of pain and suffering, others treat it as a distinct kind of damage. "Hedonic damages" refers to damages for loss of enjoyment of life, and they are included in the concept of "general damages" because, like pain and suffering, they cannot be quantified with any degree of pecuniary exactitude or measured definitely in terms of money.

Loss of past earnings - See "lost wages."

Loss of society and companionship - Damages awarded in cases involving wrongful death that represent the positive benefits flowing from the love, comfort, companionship, and society the plaintiff family members (as defined in your state's wrongful-death statute) would have enjoyed had the decedent lived. The jury considers evidence that a harmonious relationship existed between the plaintiff and the decedent, their living arrangements, common interests and activities, and whether the decedent and plaintiff were separated for extended periods. See "loss of consortium" and "loss of consortium of a child."

Lost earning capacity - May be recovered if the plaintiff proves that his or her ability to earn money in the future has been impaired or diminished by the injuries the defendant caused. Factors that help determine whether an award should be made include the plaintiff's age, health, life expectancy, occupation, talents, skill, experience, and training. One court described these damages as the "increased probability of unemployment"; past earnings are a factor to determine the amount, but the claim really focuses on what could have been.

Lost profits - Net profits the plaintiff would have earned in his or her business had the plaintiff not been injured by the defendant. The plaintiff usually must show that the business was profitable, that profits decreased since the plaintiff was injured, that the losses are not caused by something else, such as a general economic downturn, and the extent to which the business was the plaintiff's "baby," rather than dependent on the labor of others.

Lost wages - The amount of money the plaintiff would have earned from the time he or she was injured to the date of trial. An unemployed person may be permitted to recover lost wages if he or she can prove what he or she could have earned during the same period.

Medical expenses - Bills and expenses for doctors, hospital stays, emergency room treatment, ambulance fees, nursing services, and the like. The plaintiff must show that the expenses are related to medical conditions resulting from his or her injury. The total amount of medical expenses is sometimes used as a rough guide to decide whether the overall award of damages is reasonable. The cost of a medical examination for purposes of litigation is not recoverable as a medical expense.

Medical monitoring or surveillance - The cost of monitoring the plaintiff's medical condition after the plaintiff was exposed to a hazardous substance so that disease is detected early.

Mental anguish - Any mental suffering or emotional distress such as fright, terror, apprehension, nervousness, anxiety, worry, humiliation, mortification, feeling of lost dignity, embarrassment, grief, shock, or ordeal. Nearly all states have recognized a right to recover for negligent infliction of emotional distress, but often with substantial limitations on the class of plaintiffs that may recover for emotional injuries and on the injuries that may be compensable.

Pain and suffering - An award for past and future physical pain. To place a monetary value on pain and suffering, the jury considers the nature of the injury, the certainty of future pain, its severity, and how long the plaintiff is likely to be in pain. Some states allow the jury to assume that if a bodily injury has occurred there has been some pain and suffering and some require that the plaintiff be conscious at the time of injury. Other states find that a person may sustain an injury that requires medical treatment, even though the injury is not accompanied by pain or suffering.

Parasitic damages - Some states allow recovery for parasitic damages, which are a type of emotional distress damage, namely, damages occasioned by anxiety specifically due to a reasonable fear of future harm attributable to a physical injury caused by the negligence of another. Parasitic damages for fear of Acquired Immune Deficiency Syndrome (AIDS) are available where there is verifiable causal connection between injury and possible development of AIDS.

Permanent disability - Best proved by medical testimony; a doctor usually must examine the plaintiff. Some courts have concluded that it can include not only disabilities that are objectively determined, but also disabilities that the plaintiff perceives.

Present cash value - The current value of projected future earnings; the amount that, if invested at a given interest rate, will over time produce the amount the plaintiff would have earned had he or she not been injured.

Special damages - Specific monetary losses, such as medical expenses, that must be claimed and proved. Recovery will require detailed proof that the losses were sustained and how much money was involved, as opposed to recovery of "general damages" (see above). Economic damages in a personal injury action are akin to special damages, and non economic damages are akin to general damages.

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