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Part V of damages in personal injury: Pain and suffering and loss of enjoyment of life.

Photograph: x-ray of badly-fractured shoulder, with bone displacement.

In this and the blog entries that follow, we will explain the different types of general damages recognized under New York State negligence law.

First and foremost, let’s address the two “big” general damages categories in personal injury:  (i) pain and suffering; and (ii) loss of enjoyment of life.  In New York law, they go together like ham and eggs.    

If an injured plaintiff sustains pain and suffering, he or she almost always can identify and quantify related loss of enjoyment of life.  It should be noted that in New York, loss of enjoyment of life is an aspect of damages that is included with the “pain and suffering” general damages determination; it is not a separate calculation. 

The New York State Pattern Jury Instructions, which judges in New York use when preparing jury charges in personal injury cases, states at P.J.I. 2:280 that “no precise rule can be formulated to measure pain or to compensate for it in money damages.”  We have seen this clearly stated by the Court of Appeals in McDougald v. Garber, 73 N.Y.2d 246 (1989), at Part I of our damages blogs [https://www.jimsnyderlaw.com/blog/2018/9/30/what-are-damages-in-personal-injury-and-how-are-they-determined-part-i-introduction].  See also, Nussbaum v. Gibstein, 73 N.Y.2d 912 (1989) [“Loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by the jury in assessing damages for conscious pain and suffering.”]

Further, and unhelpfully, New York does not allow in injured person’s attorney to break down pain and suffering calculations by year to a jury at trial, or any mention of the same; see, Halftown v. Triple D Leasing Corp., 89 A.D.2d 794 (4th Dept. 1982) [It is improper for a lawyer to suggest to the jury that they may follow a particular mathematical guide or unit-of-time basis in fixing damages for pain and suffering.]

However, the injured plaintiff’s lawyer can certainly do so and utilize such mathematical/unit-of-time calculation in any written settlement or arbitration proposal in negotiations or in an alternative dispute resolution setting.  For example, it would be entirely acceptable in a non-trial setting for the injured plaintiff’s attorney to propose the value of annual payments for pain and suffering during an injured person’s lifetime as follows: “$30,000.00 per year for pain and suffering over the next 22 years of plaintiff’s life expectancy equals $660,000.00 in total pain and suffering damages.”

One of the key issues -- and potential obstacles -- relating to proof of pain and suffering and loss of enjoyment of life damages involves establishment by plaintiff of consciousness and awareness of the same, set forth in the judge’s required New York charge to the trial jury as follows:

Conscious pain and suffering means pain and suffering of which there was some level of awareness by plaintiff (decedent).  [P.J.I. 2:280]

 - and -

[A] person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that (he, she) has suffered. [P.J.I. 2:280.1]

If there is a brain injury in question, even a mild one, loss of consciousness -- temporary or permanent – raises the question of whether and to what extent the injured party is conscious “at some level” of pain and suffering, per P.J.I. 2:280. 

In certain circumstances, especially with head injuries, this can be a difficult problem of proof, as lay people (jurors) understand unconsciousness idiomatically as being “totally out of it.”  However, medical science and literature does not share that “one-size-fits-all” definition, and it is incumbent upon the plaintiff’s lawyer to educate the jury that there are different levels of consciousness that can be quantitatively measured by medical professionals, and that the generic term “loss of consciousness” does not mean complete loss of awareness by the injured party.

Tough stuff to prove -- but not for an experienced Syracuse personal injury lawyer who represents injured people on a regular basis.

In our next blog post, we’ll take this a step further, and look at a real-life damages situation:  a motorcyclist who gets hit by a car or truck and is tragically injured. 

Stay tuned.

James Snyder