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3.4-1
Damages - General
Revised to
January 1, 2008
The
rule of damages is as follows.
Insofar as money can do it, the
plaintiff is to receive fair,
just and reasonable compensation
for all injuries and losses,
past and future, which are
proximately caused by the
defendant's proven negligence.
Under this rule, the purpose of
an award of damages is not to
punish or penalize the defendant
for (his/her) negligence, but to
compensate the plaintiff for
(his/her) resulting injuries and
losses. You must attempt to put
the plaintiff in the same
position, as far as money can do
it, that (he/she) would have
been in had the defendant not
been negligent.
Our
laws impose certain rules to
govern the award of damages in
any case where liability is
proven. Just as the plaintiff
has the burden of proving
liability by a fair
preponderance of the evidence,
(he/she) has the burden of
proving (his/her) entitlement to
recover damages by a fair
preponderance of the evidence.
To that end, the plaintiff must
prove both the nature and extent
of each particular loss or
injury for which (he/she) seeks
to recover damages and that the
loss or injury in question was
proximately caused by the
defendant's negligence. You may
not guess or speculate as to the
nature or extent of the
plaintiff’s losses or injuries.
Your decision must be based on
reasonable probabilities in
light of the evidence presented
at trial. Injuries and losses
for which the plaintiff should
be compensated include those
(he/she) has suffered up to and
including the present time and
those (he/she) is reasonably
likely to suffer in the future
as a proximate result of the
defendant's negligence.
Negligence, as I previously
instructed you, is a proximate
cause of a loss or injury if it
is a substantial factor in
bringing that loss or injury
about.
Once
the plaintiff has proved the
nature and extent of (his/her)
compensable injuries and losses,
it becomes your job to determine
what is fair, just and
reasonable compensation for
those injuries and losses.
There is often no mathematical
formula in making this
determination. Instead, you
must use human experience and
apply sound common sense in
determining the amount of your
verdict.
In a
personal injury action, there
are two general types of damages
with which you must be
concerned: economic and
noneconomic damages. Economic
damages are monies awarded as
compensation for monetary losses
and expenses which the plaintiff
has incurred, or is reasonably
likely to incur in the future,
as a result of the defendant's
negligence. They are awarded
for such things as the cost of
reasonable and necessary medical
care and lost earnings.
Noneconomic damages are monies
awarded as compensation for
non-monetary losses and injuries
which the plaintiff has
suffered, or is reasonably
likely to suffer in the future,
as a result of the defendant's
negligence. They are awarded
for such things as physical pain
and suffering, mental and
emotional pain and suffering,
and loss of diminution of the
ability to enjoy life's
pleasures.
I
will now instruct you more
particularly on economic
damages. In this case, the
plaintiff seeks to recover
economic damages for each of the
following types of monetary
losses or expenses: <Here
list each type of monetary loss
or expense for which the
plaintiff seeks, and the
evidence potentially supports,
an award of economic damages.
Then, proceed to instruct on
each such claim under the
appropriate paragraph(s) below.>
The
plaintiff is entitled to recover
the reasonable value of medical
care and expenses incurred for
the treatment of injuries
sustained as a result of the
defendant's negligence. The
plaintiff must prove that the
expenses (he/she) claims were
reasonably necessary and
proximately caused by the
defendant's negligence.
The
plaintiff is also entitled to
recover any loss of earnings or
earning capacity that (he/she)
proves to have been proximately
caused by the defendant's
negligence. With respect to
lost earnings up to the present
time, the plaintiff must prove
that the defendant's negligence
has prevented (him/her) from
receiving the earnings for which
(he/she) seeks compensation.
(He/She) must do so by
establishing a reasonable
probability that (his/her)
injury brought about a loss of
earnings. The evidence must
establish a basis for a
reasonable estimate of that
loss.
The
plaintiff is also entitled to
damages for the loss of future
earnings based upon the evidence
as to what (he/she) probably
could have earned but for the
harm caused by the defendant's
negligence and as to what the
plaintiff can now earn through
the earning period of (his/her)
life.
Let
me now turn to noneconomic
damages. In this case, the
plaintiff seeks to recover
noneconomic damages for each of
the following types of
non-monetary losses or injuries:
<Here list each type of
non-monetary loss or injury for
which the plaintiff seeks, and
the evidence potentially
supports, an award of
noneconomic damages. Then,
proceed to instruct on each such
claim under the appropriate
paragraph(s) below.>
A
plaintiff who is injured by the
negligence of another is
entitled to be compensated for
all physical pain and suffering,
mental and emotional suffering,
loss of the ability to enjoy
life's pleasures, and permanent
impairment or loss of function
that (he/she) proves by a fair
preponderance of the evidence to
have been proximately caused by
the defendant's negligence. As
far as money can compensate the
plaintiff for such injuries and
their consequences, you must
award a fair, just, and
reasonable sum. You simply have
to use your own good judgment in
awarding damages in this
category. You should consider
the nature and duration of any
pain and suffering that you
find.
A
plaintiff who is injured by the
negligence of another is
entitled to be compensated for
mental suffering caused by the
defendant's negligence for the
results which proximately flow
from it in the same manner as
(he/she) is for physical
suffering.
You
should consider, as a separate
category for awarding damages in
this case, the length of time
the plaintiff was, or will
probably be, disabled from
engaging in activities which
(he/she) enjoys.
If
you find that it is reasonably
probable that (he/she) has
suffered permanent physical
harm, loss of function or
disfigurement, the plaintiff is
entitled to be compensated for
that category of injury. Your
award should be in accordance
with the nature and extent of
such physical impairment, loss
of function or disfigurement and
the length of time (he/she) is
reasonably expected to endure
its negative consequences.
<Here it may be appropriate to
instruct the jury as to the use
of any evidence of life
expectancy that has been
introduced.>
The
plaintiff is entitled to full
compensation for all injuries
and losses proximately caused by
the defendant's negligence even
though those injuries and losses
are more serious than they
otherwise would have been
because of a pre-existing
condition. You may not
compensate the plaintiff for the
pre-existing injury itself.
However, the aggravation of such
an injury, proximately caused by
the defendant's negligence, is a
proper item of noneconomic
damages.
Notes
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