Killing Ontario » Tortious Liability and Special Lawyer Protections, Pt2

Tortious Liability and Special Lawyer Protections, Pt2

Non-Economic Damages in
Personal Injury Cases

When a plaintiff is able to prove a defendant’s liability in a personal injury or medical malpractice case, he or she can potentially recover economic and non-economic damages. Economic damages are compensation you receive as a result of monetary losses you suffer because of an accident. They may include medical bills, lost income, property damage, loss of earning capacity, vocational rehabilitation, household services, and out-of-pocket costs. Non-economic damages are less concrete than economic damages and are subjectively evaluated by the jury. 

Non-economic damages may include pain, emotional anguish, humiliation, reputational damage, loss of enjoyment of activities, or worsening of prior injuries. In some states, they are referred to as pain and suffering. Additionally, a spouse may be able to recover a type of non-economic damage called loss of consortium. 

After a catastrophic injury, some of the greatest losses may be non-economic. Many plaintiffs bring their lawsuits not just to recover economic damages, which often result in a substantial recovery by insurers and physicians rather than the plaintiff’s family, but in order to obtain redress for their loss of joy in living. People who are seriously injured may encounter pain every time they perform an activity that healthy people take for granted, such as helping their children put on clothes for the day, driving to work, or standing for an hour to cook dinner. Serious injuries often result in a plaintiff being unable to enjoy the activities he or she was previously able to enjoy. 

For example, after certain brain and spinal injuries, people who previously enjoyed an active lifestyle of dancing, taking long walks, and playing sports after work to relieve stress may be unable to do these activities or may be severely limited in doing these activities. This, in turn, can result in reduced social contact or an alteration of lifestyle that can make it harder for the plaintiff to enjoy his or her life. 

Similarly, when a doctor fails to conduct an appropriate differential diagnosis, he or she may miss an impending heart attack that results in the wrongful death of a father of four children. His family members may sue for wrongful death, not only because without him they are unsure how they will pay their mortgage payments, but also because it is difficult to grow up without a father who offered support and guidance to his spouse and to each of his children on a daily basis. To prove this non-economic loss, the family members would need to testify about their relationship to the deceased person. 

Different juries may reach different conclusions about the appropriate amount of non-economic damages. Since there is no direct economic loss and no hard evidence of bills or receipts on which to base the award, it can be difficult for juries to assign a monetary value to the losses. Because of their more abstract and subjective nature, non-economic damages have been subject to tort reform laws in many states. 

Those who support tort reform have argued that awards of non-economic damages are excessive, the result of inflamed emotions rather than proof. In most states, there is no cap on non-economic damages in personal injury cases, but there is a cap on non-economic damages in medical malpractice cases.

Proving Fault and Damages in
Personal Injury Cases

Negligence is the basis of most personal injury lawsuits. In all states, people are required to conduct themselves according to the prevailing standards of behavior for that state to avoid unreasonable risks of harm to others. If a person violates the standards of his or her state and injures someone, he or she may need to compensate the victim for any losses. On rare occasions, a theory of negligence requires a person not to act. 

These issues are related to negligence theory: 

  • Negligence Per Se
  • Comparative & Contributory Negligence
  • Vicarious Liability/Respondeat Superior
  • Third-Party Liability
  • Strict Liability
  • Actual and Proximate Cause
  • Economic Damages
  • Non-Economic Damages
  • Punitive Damages
  • Tort Reform

A plaintiff suing on the basis of negligence will have to show the defendant's duty of care to the plaintiff, the defendant's breach of duty, actual and proximate causation linking the breach to the harm, and actual losses or damages. "Proximate causation" means that an event has a causal connection to the losses that the law recognizes. An event that is too remote from the harm may not be recognized as a proximate cause. 

Negligence can arise in any context, including motor vehicle accidents or products liability. For example, a motorcyclist who is injured in a truck collision will have to show that the truck driver’s or another party's actions fell below the standard of care. An example of actions that fall below the standard of care would be a truck driver who runs a stop sign. Or, in another example, a consumer may need to show that a manufacturer's design fell below the standard of care to recover for a defect that caused an injury. 

Professionals such as physicians, nurses, and lawyers must live up to the standard of care expected of the typical individual in their specific profession or specialty. A professional who fails to meet the standard of care and acts negligently can be sued for malpractice. 

What Are Defenses to 
a Negligence Lawsuit? 

Generally, a defendant tries to negate an element of the plaintiff's cause of action in order to fight a negligence lawsuit. For example, a defendant may try to prove that he or she owed no duty to the plaintiff, or that he or she exercised reasonable care, or that his or her actions were not the actual or proximate cause of the plaintiff's injuries. 

Depending on the state where the personal injury lawsuit is brought, a defendant may also assert one or more affirmative defenses. These are defenses that eliminate or limit liability through an attack on the elements of the plaintiff's case. The most common affirmative defense in personal injury lawsuits is comparative or contributory negligence. All states follow rules of comparative fault. Some states follow the doctrine of comparative negligence, while others follow the doctrine of contributory negligence. Under these rules, a plaintiff's own negligent conduct can reduce his or her recovery award if it contributed to the injury. 

Comparative negligence reduces the plaintiff's compensation by his or her percentage of fault. There are three types of comparative negligence that states follow. In a pure comparative negligence state, a plaintiff can recover damages minus the amount for which he or she is responsible. For example, if a plaintiff has $100,000 of damages and is responsible for 10%, she will be able to recover up to $90,000. States that follow what is called "modified comparative negligence" differ with regard to whether to bar the plaintiff from recovering damages when he or she is found to be 50% or 51% responsible for the injury. Other states follow the doctrine of contributory negligence. In those states, a plaintiff is barred from recovering anything even if he or she is only 1% at fault. 

Another common defense to negligence in some states is assumption of risk. In asserting assumption of risk as an affirmative defense, the defendant argues that the plaintiff assumed the risk involved in an obviously dangerous activity. For example, a plaintiff who races cars at a club may assume the risk of injury. However, a plaintiff who rides on an amusement park ride does not assume the risk of a mechanical malfunction that causes the seatbelt to detach with the plaintiff in the air. The doctrine does not apply to these unknown dangers.

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