In order to recover for an injury, you must have suffered damage, i.e., some measurable cost. Minor cuts and bruises, unless they cause other economic loss (e.g., you are a television personality and get a bruise on your face that would ordinarily not be recoverable; but you have to miss work because of it), are not considered compensable for a variety of reasons, including the fact that it will cost more to recover them than they are worth.
A car goes through a red light, causing you to dive to the ground. If you get up with a simple scrape on your hand, there is an injury caused by negligence, but you will likely not be able to recover, despite the actions of the driver. First, the amount at issue is negligible—perhaps the cost of some soap and a bandage. Technically, you could seek to recover this cost. But, second, the cost of seeking recovery will far outstrip the cost of that soap and bandage—you (and any lawyer who took such a case) would lose money trying to recover.
In general, your damage needs to equal or exceed the costs of recovering the damage in order for you to have a viable personal injury case. Your damage may be more or less than you assume. This is a question a lawyer can help you determine.
By awarding a dollar amount, the law attempts to “make whole” people who are injured. To “make whole” means the law tries to return you to the position you were in if you had not been injured. Of course, in the case of permanent and/or scarring injuries, this is not truly possible, as money cannot replace physical or mental health. But money damages are the best way the legal system has to approximate “wholeness.”
Given the law’s attempts to make the injured whole, the damages associated with an injury that can be recovered in court often extend beyond the actual economic cost of an injury, i.e., immediate medical attention and missed work. Sometimes an injury can be technically healed but continue to cost you. Therefore, the law allows recovery for a variety of non-economic costs that are associated with personal injury. In a nutshell, the damages include:
Economic Damage: Past, present and future medical bills that are related to your injury; lost wages, if missing work was a result of your injury, or if the nature of the injury precludes you from working in your specific profession.
Example: You enter data for a living, which requires the use of both hands. You receive injury to your hands because of a defective product. You cannot do your job for several weeks. You may recover for lost wages.
Non-Economic Damage: “Pain and suffering” and loss of enjoyment of life—when an injury results in lingering or lasting pain or incapacity, you can recover an amount to compensate this type of damage. This is often the largest component of a damage award, because of both the variety of activities people engage in and the length of time they do so. When a young person is severely injured, the length of time that pain and suffering damages may cover can be decades.
Example: A young adult plays tennis every weekend and has done so since childhood. As the result of a slip and fall in a store, the person severely damages her knee and can no longer run and has a permanent limp. The person may recover non-economic damages for the loss of enjoyment in playing tennis, as well as pain and suffering for the continuing injury that resulted in a limp.
Note that for some, a particular item of damage can be economic and non-economic, whereas the same item of damage might be solely non-economic to another. Compare the following individuals:
Person A: A skilled craftsman who loves playing tennis loses a hand as a result of the negligence of another. He is no longer able to pursue his craft, even with a prosthetic hand. This is economic damage that resulted from the injury, and may also be non-economic damage in that he has lost the enjoyment of using the hand or he may have lingering pain at the wound site.
Person B: An executive who works in an office and loves playing tennis loses the same hand and has it replaced with a prosthetic. Other than a couple weeks of missed work, her work is not impacted by losing the hand. Her economic damage is primarily medical cost. For her, any lasting damage resulting from losing the hand will be measured as non-economic damage.
Note that for both people, the non-economic damage can occur because they have lifelong pain at the wound site, can no longer play tennis, carry their children, or hold their spouse’s hand because of the loss.
In law, there is a saying: “You take your plaintiff as you find him.” That means the condition of the plaintiff before the injury is irrelevant to whether she may recover.
Example: Person A has a condition that makes her bones very brittle. Person B does not. Both are walking under a scaffold when a pile of wood falls from it, and both dive to avoid injury. The incident causes no injury to Person B, but Person A breaks several bones from the dive. Person A’s damages are compensable if the workers on the scaffold were negligence, even if the average person, like Person B, would not be injured in such an incident.
Some injuries are obvious right away. If you break a limb or you are bleeding as the result of an accident, your damage will be apparent. Often, an injury, and hence the damage, is not apparent. This is especially true with soft-tissue injuries. Just because your damage is not apparent right away does not mean you may not recover, so long as you can prove the damage was wrongfully caused by another.
Example: You eat a hamburger at a fast-food chain. The meat is tainted with Salmonella and arrived at the restaurant that way. A day after eating, you become violently ill, and must stay in the hospital for several days, miss two weeks of work and suffer several months of weakness and stomach pain. Even though you left the restaurant feeling fine, you may still recover some or all of these damages, either from the particular restaurant, the chain, the producer of the meat, the trucking or rail companies that delivered it, or perhaps all.
Example: A car goes through a red light, causing you to dive to the ground. You get up with a minor scrape on your hand and walk away, having gotten the name and license of the driver. Later, you begin to experience excruciating back pain that requires treatment and impacts permanently your ability to do your job (you have to stand all day and lift heavy objects). Just because you got up and walked away does not mean you cannot recover for your injury, so long as you prove it was caused when you dove to avoid getting hit by the car.
