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Part II of damages in personal injury: Drilling deeper: how much, and how much is too much?

Photograph: motor vehicle crash on highway between two cars, one overturned on roof.

Damages in personal injury can seem mysterious to both attorneys and laypersons alike.  In this series of posts, we attempt to lift the veil and shed light on these concepts.    

In Part I of our blog post on damages in personal injury actions in New York State [https://www.jimsnyderlaw.com/blog/2018/9/30/what-are-damages-in-personal-injury-and-how-are-they-determined-part-i-introduction], we outlined the purpose(s) of damages, and the two general categories of damages, “general” and “special.”  The ultimate cost of damages falls upon the party who was negligent and caused the incident and injuries (called the “tortfeasor”), and their insurer.  In this post, Part II, we drill down deeper into those concepts, especially in actual practice in the real world of tort settlements and litigation. 


Let’s go again to the Court of Appeals in McDougald v. Garber, 73 N.Y.2d 246 (1989), discussed with a link in Part I, where there is a remarkably frank discussion of the difference from the perspective of the court:

Damages for nonpecuniary losses are, of course, among those that can be awarded as compensation to the victim.  This aspect of damages, however, stands on less certain ground than does an award for pecuniary damages.  An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on "the legal fiction that money damages can compensate for a victim's injury.”  We accept this fiction, knowing that although money will neither ease the pain nor restore the victim's abilities, this device is as close as the law can come in its effort to right the wrong.  We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace for the condition created.  Our willingness to indulge this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery.  When that limit is met, further indulgence can only result in assessing damages that are punitive.  [Emphasis added]

Translation: solace is a “fiction” (how kind!) and has its limits in personal injury cases.  General, non-pecuniary losses for such things as pain and suffering and loss of enjoyment of life have their outside monetary award boundaries as far as the courts are concerned in New York State.  Special, pecuniary losses do not if properly documented and presented. 

In other words, a jury award of $1,000,000.00 for general pain and suffering damages for a single broken rib in a car collision case involving ordinary negligence, without more, would not stand up to court scrutiny on appeal.  Such a generous amount awarded for general damages in that case would likely not be considered as serving the appropriate compensatory goal of providing solace in tort recovery -- it would appear to be too much money, inappropriately punitive as against a tortfeasor in ordinary negligence.     

However, a jury award of $1,000,000.00 in special damages assessed against the tortfeasor in ordinary negligence for the cost of a handicapped van, vocational and rehabilitation training, home bathroom and stair modifications and future medical care, etc., in a traumatic brain injury case will pass appellate court scrutiny, if properly supported by the facts and expert testimony.  Those are hard-dollar costs directly attributable to past or on-going care and future rehabilitation and treatment, costs where subjective “solace” plays no part and might otherwise be borne by healthcare providers or taxpayers who had nothing to do with causing the accident and injuries.        

Knowledge of these parameters always guides the experienced, attentive personal injury attorney who, in turn, explains them carefully to his or her client going forward.

James Snyder