In a personal injury action, a plaintiff must prove that more likely so than not the defendant was negligent, that the defendant’s negligence caused injuries and damages to the plaintiff, and the amount of those damages that were caused by the defendant’s proven negligence.  In other articles of this section, liability and causation were discussed.

We have all heard of the old saying “no harm, no foul.” This phrase originated in the game of basketball when it was first described in the Hartford Courant newspaper in 1956.  By the early 1970’s the term was being applied to legal situations.  In short, the phrase means that no damage has been done by a person’s mistake.

In a personal injury action, the plaintiff must prove by a preponderance of the evidence (more likely so than not), the amount of injury and damages sustained by the defendant’s negligence.  Damages may be divided into three basic categories in a personal injury matter:

  • General or Non-Economic Damages
  • Special or Economic Damages
  • Punitive Damages

General or Non-economic damages have been defined as those damages which may not be fixed with any degree of monetary exactitude.  They include:

  • Past mental anguish caused by the accident up until the date of trial
  • Future mental anguish that the accident will cause going forward
  • Past physical pain and suffering from the accident to the date of trial
  • Future physical pain and suffering the accident will cause beyond the trial
  • Loss of enjoyment of life
  • Disability to the plaintiff
  • Disfigurement or scarring caused to the plaintiff

With respect to general damages, the plaintiff is not required to put on evidence at trial regarding the monetary value of general damages because the jury is not charged with finding an exact value of these damages, but rather an amount that will fairly compensate the plaintiff for those damages.

Special or Economic damages are damages that are more susceptible to being calculated.  These damages include:

  • Past medical expenses from the date of the accident up until the trial date
  • Future medical expenses the plaintiff will likely incur going forward
  • Past loss of wages from the date of the accident up until the trial date
  • Future wage loss the plaintiff will likely suffer going forward
  • Future loss of earning capacity (in some states) the plaintiff has suffered because of the injuries

Even with respect to Special or Economic damages these losses do not need to be proven with mathematical exactitude.  They only need to be proven to be more likely true than not true.

Punitive Damages are damages designed to punish a defendant in an effort to deter future bad conduct. Many states do not allow a plaintiff to recover punitive damages in a personal injury matter, including Louisiana.  In the states that do allow for the recovery of punitive damages, a plaintiff must prove that the defendant acted with reckless indifference to the rights of others and/or that the defendant’s conduct was willful, wanton and reckless.  And many states require that punitive damages be proven by clear and convincing evidence, which is a standard much higher than a mere preponderance of the evidence (something is more likely true than not).

States that allow punitive damages usually have a cap on the amount a jury can award for punitive damages against a defendant.