There are two categories of monetary damages available to you when you have been wrongfully injured: actual damages; and in some cases, punitive damages. The payment of monetary “civil damages” is to compensate you for losses suffered. An award of punitive damages, while paid to you, is not for the purpose of paying you for your losses, but rather, to punish the wrongdoer for reckless conduct or intentional wrongdoing. Punitive damages send a message to the wrongdoer, and to the community at large, that reckless conduct and intentional wrongdoing will not be tolerated. Punitive damages serve to deter future reckless conduct or intentional wrongdoing.
The term actual damages includes several sub-categories of tangible and non-tangible damages you or your family may be entitled to receive.
Tangible Monetary Losses:
Medical Bills; Lost Wages, and Other Quantifiable Monetary Losses
Medical bills may be as little as a trip to the emergency room or other urgent care facility. Or, they may be extensive, lasting a lifetime. Likewise, lost wages might be limited to a day off of work; or, lifetime of disability.
When an injury is permanent, requiring medical bills into the future, or you suffer lost wages into the future, an economic expert is often consulted to specify the present value of funds needed to fund these losses into the future. These experts often testify at trial before judges and juries to most accurately assess what amount of money award will be sufficient to pay the losses.
Intangible Harms and Losses:
Pain and Suffering, Loss of Enjoyment of Life, Alteration of Lifestyle, Mental Anguish, and Permanent Injuries/Restrictions
Depending on the circumstances, you may be entitled to be paid money for bad things that happen to you as a consequence of the injury itself. A person who suffers a bruised knee, is painful for a week, and who has no lasting consequences, is naturally entitled to less money than a person who suffers a loss of a limb, a serious burn, other life changing injury.
Wrongful Death and Survival Damages
If you are killed, a legal estate must be created in the probate court within your county of residence. A personal representative (PR) may be specified in your will. The PR then applies for a formal probate court order, naming that person as PR of the Estate. If not, the court will appoint a PR, based on family relationship status. The PR manages the estate, and signs all attorney fee agreements and HIPPA forms to obtain medical bills, coroner reports and other documents protected by HIPPA privacy laws. The PR has a host of other duties as well, such as taking an inventory of all assets you own, and debts you owe to creditors.
Damages for wrongful death differ from survival damages. Wrongful death damages compensate family members for the loss of love, companionship and dependent/spouse wages into the future; also included is money to pay medical and funeral expenses, which can be paid through the estate after settlement. Survival damages compensate for conscious pain and suffering prior to death.
While medical bills and loss of future earnings can be calculated to a reasonable degree of certainty, love, companionship and survival damages are not capable of mathematical calculation. Judges or juries struggle with determining appropriate amounts.
The role of an award of punitive damages is threefold: to punish the wrongdoer for reckless or intentional conduct; to deter the wrongdoer from repeating the behavior; and to deter others from engaging in similar behavior. A drunk driver may not drive drunk again; a chemical plant may stop dumping toxins illegally; and others in the industry may also be deterred once learning of the punitive damage award.
Clear and Convincing Standard of Proof
The injured party must prove “by clear and convincing evidence” that the at-fault party engaged in reckless or intentional conduct that caused injury. This is a higher standard of proof than proving ordinary negligence (the failure to use reasonable care under the circumstances), which is proven by a “preponderance of the evidence.” Another way of explaining “preponderance of the evidence” is to say ” that more likely than not,” the at-fault party was negligent. Clear and convincing is not specifically defined, but the court explains to the jury that it more than a preponderance of evidence.
After an award of punitive damages, the trial court reviews the award using several factors such as the ability to pay, the amount of actual damages in relation to the amount of punitive damages awarded, and the egregiousness of the conduct. The court may reduce reduce punitive damages, or order a new trial in appropriate circumstances. Actual damages are also subject to judicial review and modification.
Limits on Monetary Damages
State legislatures have the ability to limit damages under certain circumstances, as does Congress on the federal level. Legislative tort reform battles rage on in all state legislatures and in Congress. The United States Chamber of Commerce is a huge advocate for legislatively limiting damages in a number of contexts. Other legislative control over judicial damages occurs when state and/or federal agencies are sued. The South Carolina Tort Claims Act, limits an injured party’s damages against state, county and other governmental organizations to $300,000.00 per person, $600,000.00 per incident. See also the South Carolina Non-Economic Damage Award Act of 2005
Determining damages in auto accident and other incidents involving personal injury is a process that occurs over time, based on the individual circumstances of each case. Although this article discusses damages in the context of trial, most cases are resolved short of going to trial. However, to obtain a fair settlement, damages must be carefully evaluated from the outset of a case until resolution, because every case involves different circumstances. The McKnight Law Firm would be honored to assist you or your family members in obtaining a fair settlement for damages suffered; or if necessary, we are ready, willing and able to handle your case through trial.
Jody McKnight is the owner of the McKnight Law Firm, Charleston, South Carolina. His firm focuses on serious injury and wrongful death cases, arising from all causes involving negligence, including product liability, auto accidents, boat accidents, dram shop (liquor liability) matters, and premise liability cases. Mr. McKnight is an active member of the South Carolina Association for Justice, the Southern Trial Lawyers Association. He founded the Charleston Art of Trial Advocacy Workshop in Charleston, SC. He has tried numerous cases before judges and juries in South Carolina state circuit courts, as well as the United States District Court.