Damages in Personal Injury Cases

Jerry Bowman, Owner and Managing Attorney

August 20, 2015
Damages in Personal Injury Cases

The Denver personal injury attorneys Bowman Law have an in-depth understanding of damages in personal injury cases. We understand the struggles some personal injury victims face in trying to recover. In Colorado, there are specific rules that complicate injury claims and the recovery of damages. To help ensure you receive full compensation following an accident, it is important to contact Colorado personal injury attorneys who are well-versed in State laws regarding damages. Our personal injury attorneys have a history of success handling civil cases throughout all of Colorado and can help ensure your rights are protected.

In personal injury cases, money damages are paid to an injured party, typically by the insurance company of the negligent party. This can happen through negotiations between the parties or through a verdict in court. Most personal injury damages are classified as “compensatory,” meaning they are intended to compensate an injured party for what was lost due to the accident. To the extent possible, a compensatory damage award is meant to make the injured party whole again from a monetary standpoint. Some compensatory damages are easy to quantify, such as reimbursement for property damage, medical expenditures, and lost wages. Other damages are not so easy to compute.

Future Damages

A review of injuries resulting from automobile accidents indicate most injuries heal within 1-2 years, but that 25% of victims will develop deep chronic pain. Some of these will likely see improvement over a 2-year period post-trauma, but may be unlikely to improve even after 2 years. According to one study, after an average of 10.8 years, 86% of victims involved in a pedestrian accident experienced ongoing, related residual pain on a long-term basis with 68% eventually displaying degenerative changes on X-Ray imaging.  This finding is further supported by another study that found 43% of patients experiencing an injury related to a motor vehicle collision had discomfort sufficient to interfere with their capacity for work at 2 years follow-up.

The accumulated literature suggests 43% of people involved in a pedestrian accident will suffer long-term symptoms.  Since ligaments and muscles do not fully heal once injured, victims of personal injury will continue to experience instability that will increase the likelihood of cervical degenerative joint disease and cervical disc degenerative disease over time without continued care. Following an accident, a victim will suffer from a weakened structure that may symptomatic for a very long time.

Non-Economic Damages

Pain and suffering damages typically encompass compensable damages in personal injury cases that include not only physical pain, but also a wide range of intangible injuries relating to mental and emotional trauma recoverable as elements of damage. Physical pain is the neurological response to physical damage to the body and has been defined as “a more or less localized sensation of discomfort, distress, or agony resulting from the stimulation of specialized nerve endings.

“Suffering” may take a number of forms and encompass a number of concepts. Generally, however, it may be viewed as a mental or emotional state brought on by a victim’s injury. Any definition of suffering, although not definitive, may include a broad range of emotional responses which may occur in conjunction with the trauma and resultant physical injury and pain, or irrespective of any physical injury and pain. Colorado courts have held that mental suffering constitutes an aggravation of damages when it naturally ensues from the act complained of, and in this connection mental suffering includes nervousness, grief, anxiety, shock, humiliation, and indignity as well as physical pain.

It may be quite readily discerned why the damage elements of “pain” has been equated with “suffering,” and unified into the damage element of “pain and suffering.” Thanks to Colorado courts, it is reasonable to conclude that pain is characterized broadly as physiological while suffering is more appropriately deemed psychological.  Whereas pain refers to the physical sensations resulting from an injury, suffering is concerned primarily with the person’s emotional reactions to these sensations. Unfortunately, case law is not clear on how to calculate pain and suffering because there is no obvious way to translate an intangible, nonmonetary injury into a monetary award. Typically, in personal injury cases, juries and even insurance adjusters multiply the economic damages by 2-3 times in an effort to calculate the non-economic pain and suffering damages.

Punitive Damages

According to Colorado statute, in cases where the defendant’s conduct is attended by circumstances of fraud, malice, or willful and wanton conduct, a jury, in addition to the actual damages sustained, may award punitive, or exemplary damages. According to Colorado courts, “willful and wanton conduct” means conduct purposefully committed which the defendant must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the victim. To justify exemplary damages, there must be some wrong motive accompanying the wrongful act. These types of damages stem from a rationale that is quite different from the justification tied to compensatory damages, which attempt to “make someone whole.”

Punitive damages are awarded to the victim but the real goal is to punish the wrongdoer for his conduct. They “hit him in the pocketbook” so to speak. Moreover, punitive damages are used as a deterrent. Colorado, like most states, have a cap on punitive damages in a personal injury case.

Contributory Negligence

In some cases, an injury victim may have contributed to the accident. Colorado has adopted by statute a modified form of comparative negligence. The Statute says that the contributory negligence of a claimant will not bar recovery if the claimant’s negligence was less than the defendant’s negligence. This could be interpreted to require the claimant to be compared individually with each defendant in a multi-defendant case. Some courts, however, have ruled otherwise. According to Colorado courts, a claimant will not be barred if his fault is less than 50 percent of the combined fault of all those who helped to cause the incident, including those non-parties whose fault is considered under the Statute. In situations where a claimant’s contributory negligence does not bar recovery, such negligence will reduce any damages award in proportion to the amount of the claimant’s negligence