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What are "damages" in personal injury, and how are they determined? Part I: Introduction

Photograph; dollar bills lying on a flat surface.

In this blog post, we begin a series of informative analyses and discussions regarding the award of monetary damages in negligence for personal injury cases in New York State. These posts are not meant to offer specific legal advice, which can only occur where an attorney-client relationship exists, but we trust they will be helpful to you in a general way. If you have any further questions, please don’t hesitate to call or email me directly.

WHAT ARE “DAMAGES?”  WHAT IS THEIR PURPOSE IN A PERSONAL INJURY SUIT?

The New York State Court of Appeals, in McDougald v. Garber, 73 N.Y.2d 246 (1989), a seminal decision on monetary damages in personal injury in New York, stated the purpose of such damages is as follows:

[A]n award of damages to a person injured by the negligence of another is to compensate the victim, not to punish the wrongdoer. The goal is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred … To be sure, placing the burden of compensation on the negligent party also serves as a deterrent, but purely punitive damages -- that is, those which have no compensatory purpose -- are prohibited unless the harmful conduct is intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence. [Citations omitted]

DAMAGES IN PERSONAL INJURY IN NEW YORK FALL INTO TWO (2) GENERAL CATEGORIES, “GENERAL” AND “SPECIAL”:

(i)  General damages, otherwise known as nonpecuniary or non-economic damages, mean those monetary damages awarded to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering and the loss of the ability to engage in certain activities.

(ii)  Special Damages, otherwise known as pecuniary or economic damages, on the other hand compensate the victim for the economic consequences of the injury, such as medical expenses, lost earnings and the cost of custodial care.  These are hard-dollar expenses that can be identified and quantified, financial losses to the injured party that have a specific economic, monetary value.  N.Y. C.P.L.R. 3043(a)(9) requires that special damages in a personal injury action must be pled in the plaintiff’s Bill of Particulars, which your lawyer must draft and serve upon the lawyer for the individual who caused you to be injured if your case goes into suit.

General and special damages can be awarded by a jury upon a verdict after trial, or can be obtained through a negotiated settlement between the injured person and the individual responsible for causing the injury.  These negotiated settlements are almost always more financially rewarding for the injured party when an experienced personal injury lawyer gets involved and works for the injured person.

Here is a link to that N.Y. Court of Appeals decision in McDougald v. Garber, 73 N.Y.2d 246 (1989):

https://scholar.google.com/scholar_case?case=4886015626258128701&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Stay tuned.  Part II of our damages in personal injury discussion addresses how the law in New York State further defines damages, and how New York courts determine how much may be too much.  That’s the subject of our next blog post.

James Snyder