For many people that have suffered injury at the hands of another, one of the first things that comes to mind is how are they going to be compensated for their damages. The next question that naturally follows from this is what types of damages they can expect to recover. These are excellent questions. Georgia tort law provides a starting point for this inquiry.
First, you may wonder, what is a “tort?” As defined by Georgia law, “a tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied. A tort may also be the violation of a public duty if, because of the violation, some special damage accrues to the individual.” O.C.G.A. § 51-1-1. In other words, a tort is where someone commits some sort of negligent act that causes another person harm. The person that causes this harm is referred to in the legal world as the “tortfeasor.” The “harm” caused by the tortious act is what we lawyers refer to as “damages.”
Under Georgia law, damages in personal injury cases come in two basic forms, general damages and special damages. These are defined under O.C.G.A. § 51-12-2 as follows:
- General damages are those which the law presumes to flow from any tortious act; they may be recovered without proof of any amount.
- Special damages are those which actually flow from a tortious act; they must be proved in order to be recovered.
From this fairly legalistic language, most people probably do not fully understand what these definitions mean or what sort of damages these categories encompass. In the discussion that follows, we explain some of the more common damages that people tend to suffer in car wrecks and other injury incidents, and where they fit under these broad damage categories.
Special damages are those damages that are capable of being quantified with receipts, billing records, and other accounting type documents. The most common example of this element of damages is medical bills. Other examples of special damages are lost wages and items of property that were damaged in the car wreck or injury incident.
General damages are those damages that are unable to be quantified with a bill or receipt. The most common element of general damages that most people are familiar with is pain and suffering. What may not come immediately to mind however is the diminished quality of life that a person may endure. This is true for the time frame following the wreck often when injuries are at their worst, through and including treatment and recovery, and into the foreseeable future depending on the extent of injury.
When we seek to prove the value of pain and suffering and diminished quality of life, a bill or receipt is probably not the sort of evidence we would ordinarily use to support this general damage element. This is because general damages are completely subjective and based upon what each individual injury victim suffers from the wreck or injury incident.
Medical bills can however perhaps provide some context as to the magnitude of a person’s pain and suffering. For instance, if someone has sizeable medical bills, many jurors will likely make the connection that the pain and suffering was commensurate with those bills. This is because as the bills increase, this tends to be indicative of more serious injuries. From this, most jurors would probably infer that the person must have suffered greater pain and suffering than someone with less serious injuries and less expensive medical bills.
However, this may not always be the case. In fact, evidence of medical bills may cause a jury to return a verdict for pain and suffering lower than what they might have otherwise found. This may seem counterintuitive, but medical bills can in some instances serve to “anchor” the jury’s total verdict to an amount close to the billed amount with general damages (pain and suffering) being some fraction of this. Depending upon the case, this may or may not be an accurate reflection of the injured person’s pain and suffering. In fact, in some cases, it may be substantially less.
So, in those cases where the medical bills do not offer a meaningful measure of an injury victim’s pain and suffering, it may be wise to forgo those special damages altogether. This can be a difficult decision because juries are inclined to compensate a victim for their medical expenses. However, in the right case, this approach can yield a larger overall verdict with the focus on the general damages of pain and suffering and diminished quality of life. The decision here will depend upon the unique facts of each case and personal characteristics of each injury victim.
Beyond general and special damages, there are also punitive damages that may be awarded in those cases where the at-fault driver, wrongdoer/tortfeasor, committed some act that was especially troubling or aggravating. Punitive damages are not awarded as compensation for any injury, but rather to punish the wrong doer for such aggravated acts and hopefully deter any similar future misconduct.
The burden to prove damages at trial, in all their forms described above, rests on the plaintiff. For general and special damages, the burden of proof is the preponderance of the evidence standard. This means that the plaintiff must present evidence sufficient to satisfy the jury with more than 50% certainty that the damages are what the plaintiff claims them to be and that the wreck or other injury event caused them. Put another way, the plaintiff must prove that is more likely than not that the damages are real and were caused by the wreck.
For punitive damages, the plaintiff is held to a higher evidentiary standard referred to as clear and convincing. Under the clear and convincing standard, a plaintiff must present evidence beyond that required of the preponderance standard, explained above. Here, the proof, or evidence, must be sufficient to leave the jury firmly convinced to a high degree of probability that the damages claimed are in fact true. There is no precise measure as to what amount of proof satisfies the clear and convincing standard, but it lies somewhere between the preponderance standard and proof beyond a reasonable doubt (the evidentiary standard in criminal cases required to convict someone of a crime).
When cases go to trial, the judge instructs the jury on the law they are to apply to the evidence and facts of the case. This is important as it provides the framework for the jury to help them evaluate the evidence and determine whether the Plaintiff has proved their case.
For the preponderance standard, applicable to special and general damages, the trial judge instructs the jury as follows: “The plaintiff must prove his/her case by what is known as a preponderance of the evidence; that is, evidence upon the issues involved, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” Georgia Suggested Pattern Jury Instructions – Civil 02.020, Burden of Proof; Generally; Preponderance of the Evidence. Georgia Pattern Jury Instructions.
For the clear and convincing standard applicable to punitive damages, the trial judge gives the following instruction: “If the plaintiff fails to prove, by clear and convincing evidence, that the defendant was guilty of willful misconduct, malice, fraud, wantonness, oppression, or entire want of care that would raise the presumption of conscious indifference to consequences, then you would not be authorized to award/impose punitive damages. Mere negligence, although amounting to gross negligence, will not alone authorize an award/imposition of punitive damages. Punitive damages, when authorized, are awarded/imposed not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant. In your verdict, you should specify whether you do or do not decide to impose punitive damages.” Civil 66.702, Punitive Liability, Georgia Suggested Pattern Jury Instructions.
Again, to recap these standards, under the preponderance standard a jury must simply be convinced ever so slightly beyond fifty percent that the damages are true. Proof beyond a reasonable doubt is a much higher standard, and of course it should be, as this is the level of proof required in criminal trials when a defendant’s life and liberty are at stake, requiring jurors to be nearly 100% percent certain of guilt. The clear and convincing standard lies somewhere between these two very different evidentiary standards. With this background, let us return now to the discussion on damages.
As explained above, general damages are those sorts of damages that are non-monetary in nature, meaning that they do not flow from an expense or actual monetary loss. It is a person’s pain and suffering, both physical and mental, that in turn causes them to suffer a diminished quality of life. However, for there to be a claim for emotional pain and suffering, as opposed to physical pain and suffering, there must be an actual physical injury caused from the same injury incident. This is rarely an issue as there is seldom one without the other. And, in cases where the physical pain is significant and long-lasting, this can have devastating emotional effects.
As for physical injuries, most car wreck victims suffer some amount of neck and back injury. With physical injury there is also pain, stiffness, and limited range of motion. All of this affects the ability to function in varying degrees. Neck and back injuries typically limit a person’s ability to lift objects, pull and push things. These same injuries also tend to cause pain and discomfort during prolonged periods of sitting and standing.
Activities that an injury victim once did without thought often prove to be difficult and cumbersome, if not entirely prohibitive. From the moment an injured person wakes in the morning to the moment they go to bed, they are reminded of their injuries and painful limitations. For instance, simple tasks like bathing and getting dressed can be quite difficult. Likewise, most household tasks are often difficult, if not painfully prohibitive. Then, at the end of the day, getting a good night’s sleep is difficult, leading to increased mental and physical fatigue.
Having to endure this day after day is exhausting, physically and emotionally. Often the emotional turmoil is commensurate with the physical injuries and their limitations. It is not uncommon for people to become clinically depressed as they find their lives turned upside down. This is particularly troublesome with permanent and long-lasting injuries.
With all this said, it is important to note that an injured victim has a duty under the law to mitigate their damages. See O.C.G.A. § 51-12-11. This statute states that when a person is injured by the negligence of another, he or she must mitigate their damages as far as is practicable using ordinary care and diligence. For instance, if someone suffered deep tissue wounds following a wreck and required surgery, it is expected that they take proper care of themselves and refrain from things that might interfere with their healing.
Any failure of this sort to mitigate harm can detrimentally impact an injury victim’s case. The same is true of injured people that do not obtain timely medical care. This creates problematic gaps in treatment. Under such circumstances, a defense attorney can argue to the jury that the injured person’s damages were their own fault, and but for their own actions, or lack thereof, the recovery and outcome would have been far better with far less pain and discomfort. That equates to less money being awarded to the injured person – certainly not a desirable outcome. This serves to illustrate the importance of taking care of oneself after suffering an injury incident.
In summary, car wrecks and other injury incidents often cause substantial harm. Victims of car wrecks or other injury incidents are entitled to the full measure of compensation for all the damages suffered, special and general, to include medical expenses, lost wages, property damage, pain and suffering, and diminished quality of life. Unfortunately, the insurance companies and defense lawyers will try their best to offer less than full compensation. Therefore, if you or family member find yourself in this situation, we would encourage you to contact an experienced personal injury lawyer at your earliest convenience so that they can get to work protecting your interests and fighting to obtain the compensation you deserve.