Intellectual Property | Real Estate | Technology | Software

What types of damages are recoverable in a personal injury case?

Sep 17th, 2014 | By | Category: Litigation Warrior

When you are injured, you deserve fair, adequate and just compensation.  The law allows you to recover certain types of damages in personal injury cases, this blog discusses type of damages you may be able to recover.

Vondran legal personal injury law

Typical damages recoverable in a personal injury case

While there is no set rule (every case must be reviewed in detail), in general, the following types of damages might be available to a Plaintiff in a personal injury case:

1.  Out of pocket losses

2.  Medical bills

3.  Physical therapy bills

4.  Chiropractor bills

5.  Pain and suffering

6.  Punitive damages

7.  Costs of suit

8.  Other damages

How do California Courts view the issue of personal injury damages?

The question here involves the application of that measure, i.e., whether the “reasonable value” measure of recovery means that an injured plaintiff may recover from the tortfeasor more than the actual amount he paid or for which he incurred liability for past medical care and services. Fundamental principles underlying recovery of compensatory damages in tort actions compel the following answer: no.

In Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 640-41 [246 Cal.Rptr. 192, 194-95] the court stated:

“In tort actions damages are normally awarded for the purpose of compensating the plaintiff for injury suffered, i.e., restoring him as nearly as possible to his former position, or giving him some pecuniary equivalent. See 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 842, p. 3137; see Civ.Code, §§ 3281.

“Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.”

“Detriment is a loss or harm suffered in person or property.  For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”

“The primary object of an award of damages in a civil action, and the fundamental principle on which it is based, are just compensation or indemnity for the loss or injury sustained by the complainant, and no more.” See Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 576, 136 Cal.Rptr. 751.). “A plaintiff in a tort action is not, in being awarded damages, to be placed in a better position than he would have been had the wrong not been done.” (Valdez v. Taylor Automobile Co. (1954) 129 Cal.App.2d 810, 821–822, 278 P.2d 91.).

Can I recover punitive damages in a personal injury damages

Yes.  It is possible where a Plaintiff can meet the stands set forth in California Civil Code Section 3294 (fraud, oppression or malice) it may be possible to obtain punitive damages in your personal injury case.  This was recognized in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 998 [25 Cal.Rptr.2d 550, 572, 863 P.2d 795, 817] which held:
“With these considerations in mind, we conclude it preferable to recognize an exception that focuses on the totality of circumstances in evaluating a defendant’s conduct. Accordingly, we hold that a toxic exposure plaintiff need not meet the more likely than not threshold for fear of cancer recovery in a negligence action if the plaintiff pleads and proves that the defendant’s conduct in causing the exposure amounts to “oppression, fraud, or malice” as defined in Civil Code section 3294, which authorizes the imposition of punitive damages. Thus, for instance, fear of cancer damages may be recovered without demonstrating that cancer is probable where it is shown that the defendant is guilty of “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ.Code, § 3294, subd. (c)(1) [defining one type of “malice”].)
“A person acts with conscious disregard of the rights or safety of others when [he] [she] is aware of the probable dangerous consequences of [his] [her] conduct and willfully and deliberately fails to avoid those consequences.” (BAJI No. 14.71 (7th ed. pocket part 1992 Rev.) [defining “malice”].
As such, there is legal authority for seeking punitive damages in a California personal injury case.

Can I recover my future medical expenses in a Personal injury case?

Generally speaking, yes. This was pointed out in Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 95 [67 Cal.Rptr.3d 100, 102] wherein the California Court noted:

“After a one-month trial, the jury returned a verdict in favor of Holmes but against Duro Dyne, awarding $1,605,619.32 to Garcia for his claims and $300,000 to his wife for her loss of consortium claim. Garcia’s $1,605,619.32 award consisted of $125,369.32 in past medical expenses, $200,000 in future medical expenses, $530,250 in nonmedical economic damages and $750,000 in noneconomic damages. The jury found that Duro Dyne was strictly liable for manufacturing asbestos-containing products and negligent in failing to warn customers or recall their products. The jury found that 3 percent of the Garcias’ legal “injury, damage, loss or harm” was “attributable to the negligence, fault, defective products or wrongful conduct” of Duro Dyne, and that 97 percent of such legal “injury, damage, loss or harm” was “attributable to the negligence, fault, defective products or wrongful conduct” of “all others.”

What happens if an injured Plaintiff fails to mitigate their damages?

A Plaintiff has a duty to seek immediate treatment to try to mitigate their personal injury damages.  If you don’t, your personal injury award can be reduced under the doctrine of avoidable consequences as recognized in the following California case:
“Under the avoidable consequences doctrine as recognized in California, a person injured by another’s wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure. Victims of legal wrongs should make reasonable efforts to avoid incurring further damage; See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1382, p. 852.).  The reasonableness of the injured party’s efforts must be judged in light of the situation existing at the time and not with the benefit of hindsight. The standard by which the reasonableness of the injured party’s efforts is to be measured is not as high as the standard required in other areas of law.  The defendant bears the burden of pleading and proving a defense based on the avoidable consequences doctrine. Burrows v. State of California (1968) 260 Cal.App.2d 29, 33, 66 Cal.Rptr. 868.).  See State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1043-44 [6 Cal.Rptr.3d 441, 451-52, 79 P.3d 556, 564]
Again, in each personal injury case the facts need to be closely examined by your personal injury attorney.  Just know, we fight for every dime you are entitled to in every personal injury case.

Contact a personal injury attorney

Contact one of our personal injury lawyers to discuss your case.  If we do not recover in your case, you don’t pay us anything.  We fight for every dime you are entitled to in your case.

We can be reached at (877) 276-5084.  Or fill out the form below, and we will contact you, normally within the hour.  We do not charge anything to you until we win your personal injury case.

 

[contact_form]

 

 

The following two tabs change content below.
We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

Comments are closed.