XXII. Damages | Lydia Lichlyter | September 18, 2015


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XXII. Damages

Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter Show/Hide

Once one gets beyond the concrete medical bills and replacement costs for lost items chargeable in a tort action, assessing damages can be profoundly difficult. The core idea of tort is to make a deserving plaintiff whole again, and money is the vehicle by which to do it.

Lost wages might be clear in some cases, and speculative in others. What amount to account for a lifetime’s labor for a ten year old girl who has been wrongfully killed? A one-day-old baby?

If someone’s wrong has caused pain and suffering, that’s a negative to be offset by the positive of compensation. But how should a jury assess pain and suffering? Sometimes this can be thought of as a question of evidence: what may be brought before the jury as fact by one party, subject, as always, to challenge by the other? At other times it may fall to jury instructions, or to what a lawyer may say in opening or closing argument.


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  1. 4 Show/Hide More McDougald v. Garber -- "The Comatose Sufferer"
    Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
    Should courts be willing to grant awards for nonpecuniary damages?
    During a C-section and tubal ligation, plaintiff suffered oxygen deprivation which resulted in severe brain damage and left her in a permanent coma. After the jury returned separate awards for “pain and suffering” and “loss of the pleasures and pursuits of life”, the trial judge combined both of the awards into a single, smaller award.
  2. 5 Show/Hide More Seffert v. Los Angeles Transit Lines -- "The Calculating Pain and Suffering Case"
    Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
    How should courts go about calculating future damages for pain and suffering?
    A bus operated by the defendant trapped the plaintiff in the doorway, dragged her some distance, and threw her to the pavement. As a result, the plaintiff suffered gruesome injuries to her left foot, which required nine operations by the time of the trial. At trial, the plaintiff was awarded damages for pain and suffering which were triple her pecuniary damages.
  3. 6 Show/Hide More Greyhound Lines, Inc. v. Sutton -- "The Worth of a Child Case"
    Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
    How should courts calculate the pecuniary “loss” of children who are wrongfully killed?
    The plaintiff's three children were killed in an automobile collision with a bus operated by the defendant bus company. At trial, the plaintiff recovered $1.1 million dollars for the wrongful death of each child. The damage awards included the projected lost future income of each child, and a discount based on the projected personal consumption rate of each child. On appeal, there were disputes over how to calculate lost future income and whether the decedents' personal consumption rate should be factored into the award.

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September 18, 2015

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Lydia Lichlyter


Harvard Law School

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