Gain a comprehensive understanding of the recoverable damages under Texas personal injury law, and how you can effectively pursue compensation.
The abstract goal of any personal injury lawsuit is to seek justice by holding a party accountable for the harm their negligence has inflicted upon another person.
It would hardly be just if, at the conclusion of the trial, the only thing that the plaintiff got was a piece of paper saying: "You were right, the other guy really was responsible for what happened."
Our whole system of justice is based on the idea that, when rights are violated, there is a concrete financial remedy available to the victim.
In Texas personal injury cases, that financial remedy, available to victims once they've proven they were injured by another party's careless behavior, is called damages.
Damages are a legal term of art, which can refer to the amount and type of losses suffered by someone in an accident, as well as the the compensation they receive once those losses are proven.
Or to put it another way, all of the following statements are accurate: "medical bills are a type of damages," "I will sue you for damages," and "the jury awarded $1 million in damages."
What the term damages does not mean is damage. When one is injured they may very well be "damaged," but they incur "damages," and those are two completely separate concepts. The wording may sound very similar, but it's important to understand the distinction.
While popular culture fixates on particular types of damages, such as "pain and suffering," the many categories of damages that are recognized by the law are both more diverse, and far more comprehensive than what is portrayed in the media.
Experienced Texas personal injury attorney Michael Grossman, in this article, discusses damages in detail, taking a look at the different kinds of damages that injury victims can pursue, as well as the obstacles and challenges they face in trying to prove each type.
Where Does the Idea of Damages Come From?
Very roughly speaking, the legal concept of damages as we understand them today was something that American law inherited from the English Common Law.
Of course, the general concept of damages pre-dates even what anyone would recognize as English Common Law, originating in the old Germanic system of "blood money."
These origins aren't just a dull history lesson; they're absolutely crucial to understanding the civilizing purpose that damages serve, even to this day.
While the idea of "blood money" has a justifiably negative connotation in the modern world, it was both a revolutionary and humane concept in its day.
Among old Germanic tribes, when a family member killed someone of another family or tribe, in order to get justice, the victim's family had to kill a family member of the offending tribe.
This system of justice led to blood feuds that could encompass whole communities and last for generations, as each successive killing called for another in the name of vengeance.
At some point, (no one knows exactly when) some old Germanic tribesman killed another old Germanic tribesman and the family had a brilliant idea.
Instead of starting a blood feud to get justice for their lost family member, couldn't they just pay the victims family money to compensate them for their loss?
Thus was born "blood money," referred to as weregild by the Germanic people themselves, which literally translates to "man price."
Until that time, legal systems from the Code of Hammurabi (of "an eye for an eye" fame) to Dark Ages Europe had all been predicated on victims getting revenge through violence.
The old Germanic tribes recognized (or learned through bitter experience) that vengeance is inherently destabilizing for society.
Even discounting the pointless loss of life, vengeance takes people away from otherwise productive activities. The idea of substituting compensation for vengeance was a giant step in the long march towards our modern concept of justice.
While money didn't bring back the loved one who'd been slain, it was the only available way to penalize the wrong-doer, while also giving the aggrieved family something for their loss and protecting the social order from the destabilizing effects of blood feuds.
Eventually, some of these old Germanic tribes would invade post-Roman England and bring the idea of "blood money" with them.
Blood Money and Damages
Through slow legal evolution and creation of the English Common Law, "blood money" became damages, which took the form of some economic compensation (in agrarian societies this could be farm produce, livestock, or money).
When the English moved across the Atlantic to found the American colonies, English Common Law came with them, and still serves as the basis of our legal system today.
While critics might argue that lawsuits are outrageous, "get rich quick" schemes concocted by personal injury lawyers, this critique fail to account for history and human nature.
While money is an imperfect tool for achieving justice, it really is the only effective device that has yet been devised.
To attack lawsuits and damages, simply because attorneys derive financial gain from them, ignores both the injuries that plaintiffs have suffered and the fact that the only other alternative in human history is for people to seek their own justice through personal vengeance.
As much as literacy, property rights, and individual freedoms, the concept of damages is a cultural line of demarcation, separating the modern from all that came before.
In our modern society, damages represent the pinnacle of our imperfect attempts to achieve justice. When a person is injured by the negligence of another person, they are afforded the right to pursue a lawsuit against the party who injured them.
In many respects, a lawsuit is just a legal tool for accomplishing justice, in which compensation for wrongs committed is structured around the organizing concept of damages.
Damages and the Elements of a Texas Personal Injury Case
When someone is injured and they wish to recover compensation from the party that injured them, the law requires them to prove certain elements. For simplicity's sake, these elements are lumped together under a single heading: a lawsuit.
In any Texas personal injury lawsuit (based on a theory of negligence, as most are), a plaintiff has to prove four elements, or parts of their case. These are:
- The accused owed the victim a duty
- The accused breached a duty they owed to the victim
- The breach of that duty was the primary cause of the injuries the victim sustained
- The victim suffered damages from the injury
The ultimate goal of any lawsuit is to prove that the plaintiff suffered damages and deserves to be compensated for those damages.
The first three elements are essentially making sure that the person accused is the right person and the damages the plaintiff sustained were actually the defendant's fault.
However, someone can meet all of the first three elements, but, if they suffered no tangible damages, still have no case.
Example of Damages in a Personal Injury Case
For instance, let's suppose that Jay is digging up the sidewalk in front of his house. No one's really sure why Jay is doing this, but Jay digs up the sidewalk and leaves a really big, open pit in the sidewalk, then walks away.
Bob comes along, minding his own business, walking on the sidewalk and doesn't see the hole until it's too late and he falls in.
Bob falls a few feet and sustains very minor bruises, but is really upset that Jay dug a hole in the sidewalk, so he wants to sue Jay.
Certainly, Jay owed Bob a duty to warn him about the hole that he had dug in the sidewalk.
It is beyond doubt that Jay breached that duty. If it were not for Jay's breach of that duty, Bob would not have fallen into the hole and suffered bruises.
However, Bob probably wouldn't have a viable lawsuit against Jay because his injuries did not result in significant damages.
In this scenario, the true purpose of a personal injury lawsuit reveals itself. A person may be tempted to ask, "Well, if Bob's claim satisfies the first three elements, why wouldn't he have a viable lawsuit?"
The answer is that the means of achieving justice and holding people accountable for their wrongdoing is through proving damages and providing compensation for those damages.
Becuase bruises don't prevent people from working and they don't cost much to treat, since there really isn't much a doctor could do to treat them, they generate essentially nothing in the way of damages.
Contrary to the impression given by the media and popular culture in general, damages are not a "jerk tax" or a "lottery". Damages are specialized legal tools to help victims recover compensation for losses that are recognized under the law.
Personal Injury Damages Recognized by Texas Law
These categories are useful for classifying and understanding damages, but lawyers instead prefer to classify them in terms of general and special damages (which are just substitute ways of saying economic and non-economic, respectively).
General damages are inseparable from the lawsuit and do not require the lawyer to plead those damages, whereas an attorney has to specifically argue for special damages.
For example, one type of damages is past pain and suffering. A plaintiff's lawyer does not have to argue that these damages occurred, because in the normal course of proving their personal injury case, a jury can logically assume that some amount of pain and suffering took place, simply by virtue of the victim having been injured.
By contrast, special damages have to be specifically pleaded by the plaintiff. The clearest example of special damages would be loss of past earnings. It would be silly for a jury to assume that someone suffered loss of earnings simply because they were injured.
For instance, children, retirees, and homemakers rarely earn income which could be affected an injury. For this reason, Texas personal injury law requires plaintiff's attorneys to argue for these damages specifically and demonstrate how they are applicable to a particular victim's unique scenario.
While it is nice to know about general and special damages, the distinction is mainly the concern of lawyers and, while more accurate, technically, those terms are not as useful for understanding and organizing damages.
Instead, the terms economic and non-economic damages have distinctive characteristics, which make damages easier to group and understand, so we'll stick with them throughout this article.
Economic Damages in Texas Personal Injury Cases
When a lawyer refers to economic damages, what she means is a class of damages whose cost is relatively easy to quantify.
Put most simply, if you can prove the damages with a bill or a receipt, then they are economic damages.
Another way to think of these damages is that they are damages that have already been independently priced in the marketplace.
A jury can simply use the price that has already been attributed in the marketplace when trying to determine these damages. Examples of economic damages include:
Medical Expenses, Past and Future
Medical Expenses, past and future - Contrary to popular belief that "the real money in a personal injury lawsuit is in the pain and suffering damages," the fact of the matter is that in most personal injury cases, the vast majority of the compensation comes from medical expenses.
As you may have noticed if you've ever needed significant amounts of medical care, it can be quite expensive.
Given that many times the injuries disputed in a personal injury case are quite severe, the costs can quickly become astronomically large.
These costs are relatively easy to prove to juries, because a plaintiff's attorney can easily get an injury victim's medical bills entered into evidence, and most juries don't consider it unreasonable to include medical expenses, past and future, in the cost of making a person whole after an accident.
Loss of Past Earning Capacity
Loss of Past Earning Capacity - More generally referred to as lost wages, this type of damages compensates victims for money they would have otherwise made while working, had the injury not occurred.
This is because injuries often cause people to miss work. Even more than the medical bills, the loss of past earning capacity places more immediate strain on most people's finances.
These damages are also relatively easy to establish, in that a plaintiff's attorney only has to show what the injured person was making at the time of the injury and then calculate the money they lost out on because they could not work.
The name for this type of damages refers to the past, because the time period that is covered is from the time of the injury until a settlement or jury verdict is reached.
An important consideration is that earning capacity can also apply to reductions in wages, not just being unable to work.
For example if an injured person has to take on a lower-paying, less physically demanding job than the one they held at the time of the accident, the difference between what they earned and what they would have earned if not for the accident can be used to calculate their loss of past earning capacity.
Loss of Future Earning Capacity
Loss of Future Earning Capacity - Sometimes injuries can be so severe that the victim is unable to continue working in their pre-injury profession.
This type of damages allows a victim to recover for any reduced ability to earn a living. For instance, our firm recently worked a case on behalf of a gentleman who had been a welder before a serious accident led to brain trauma, which made it impossible for him to ever return to his previous job, or any other job for that matter.
Typically more difficult to prove, obtaining this type of damages generally requires the plaintiff to hire an economist who can forecast future earning capacity in a more academically rigorous manner, rather than simply taking what an injury victim was making before an accident and multiplying by how many years the worker had left until retirement.
While this type of damages can blur the line between economic and non-economic, the fact that future projected earnings are based on prices set by the job market mean that it fits better as economic damages.
In the event that the injured party is a child, the jury is allowed to use common sense when calculating these damages.
Loss of Household Services
Loss of Household Services - This type of economic damages can be claimed by both spouses and parents of the deceased.
It places a monetary value on the duties, which are performed around the house by the person who was injured.
For example, if a husband vacuumed the house and handled the dusting, that household work has a monetary value.
The injured person's attorney has to prove both that the duties were actually performed by the victim, as well as provide some evidence for how much it will cost the injured person's spouse or parents to hire someone to perform the activities they is no longer capable of performing.
These damages may seem silly, but is in fact a way of quantifying the many household tasks that were traditionally performed by women, in an effort to treat the sexes more fairly in injury cases.
Non-Economic Damages in Texas Personal Injury Cases
Damages that cannot look to the marketplace to help determine a proper valuation are best classified as Non-Economic Damages.
Because they are difficult to quantify, these are usually the damages that receive the most media attention.
Often this will be done via sensational headlines such as "Woman Receives $1 million dollars for pain and suffering."
When one looks at the details of the case, invariably, the $1 million dollars is the total verdict, of which pain and suffering represent only a small part.
While these damages are every bit as legitimate in the eyes of the law, the difficulty of assigning a dollar value to them means that, contrary to popular belief, juries are actually far more likely to discount these damages when they calculate awards than they are to over-inflate them.
Examples of Non-Economic Damages
Pain and Suffering, Past and Future
Pain and Suffering, past and future - Pain and Suffering is everyone's favorite whipping boy for damages.
Contrary to their portrayal in the media, Pain and Suffering damages are not a blank check for juries to award ridiculous sums of money.
Pain and Suffering compensates injury victims for the ordeal they had to endure due to their injury, plain and simple.
They answer a question that many people ask themselves when they try to empathize with a victim, "How much would you have to pay me to endure that injury?"
Everyone answers that question differently, leading to a wide range of possible awards, which depend completely on the jury.
Since pain and suffering is something that cannot be felt by another person, often people are hyper-vigilant about people potentially "faking" the pain and suffering they have endured.
An experienced personal injury overcomes this bias by presenting the severity of a victim's injuries in such a way as to remove any doubt for the jury that pain and suffering was an inevitable consequence of receiving them.
Mental Anguish, Past and Future
Mental Anguish, past and present - This is another much-maligned form of damages that are often sensationalized in the media.
For personal injury purposes, mental anguish damages are recoverable when the circumstances of an accident are particularly disturbing.
Common instances could be a person seeing a loved-one injured or killed in a particularly gruesome or shocking accident.
As established in the Texas Supreme Court decision in Hancock v. Variyam, (2013) the burden on the plaintiff in establishing these damages is to show that the mental anguish of an accident caused "a substantial disruption in his(her) daily routine or a high degree of mental pain."
This built upon an earlier Texas Supreme Court decision in Parkway Co. v. Woodruff (1995), which established the modern rules governing mental anguish in Texas personal injury cases.
Generally, the type of injuries for which victims receive mental anguish damages are events whose brutality and shocking nature rarely occur outside of war zones, and often lead to the same Post-Traumatic Stress Disorder (PTSD) associated with some returning soldiers.
Physical Impairment - It is easiest to think of Physical Impairment Damages as a non-economic analogue to Loss of Future Earning Capacity damages.
While Loss of Future Earning Capacity damages are awarded as compensation for the diminished ability of an injured person to make a living after an accident, Physical Impairment Damages compensates victims with injuries that limit their enjoyment of non-work aspects of their lives.
For instance, in an accident where someone loses their vision most people would consider that to be a pretty serious impairment, which would greatly detract from their enjoyment of life.
Of all of the non-economic damages this can be one of the most difficult to rebut, especially in cases with extensive Loss of Future Earning Capacity evidence.
Once a jury determines that a person is so severely injured that they cannot make a living as they could before the injury, it is not a leap to conclude that other areas of life may be negatively impacted and that the plaintiff should be awarded compensation for the negative impact on their life.
Disfigurement - This type of damages refers to people whose injuries have altered the physical appearance of their body.
These damages can include amputations, scars, and facial dislocation, none of which are uncommon after serious injuries.
Basically, damages disfigurement reflect the extent to which these injuries inhibit the person's ability to live a normal life.
In one case our firm worked, a gentleman's face had been smashed in an accident.
As a result, one of his eyes was not positioned in its head where it was supposed to be.
When his children saw him, they thought that he was some kind of monster and became terrified.
This is a classic case where an injury victim can recover damages for disfigurement.
The most common way for injury attorneys to prove these damages is with before and after photographs.
In many cases where disfigurement damages are sought, the before and after pictures will produce an audible gasp when a jury sees them.
Loss of Consortium
Loss of Consortium - In a non-fatal Texas personal injury case, the only parties who can claim Loss of Consortium Damages are spouses and children of the injured person.
This type of damages accounts for the value that people derive from social interactions with certain, legally recognized close relationships, like those between spouses or between parents and children.
An impediment to recovering these types of damages could be any deterioration in the relationship between the family members and the plaintiff before the injury occurred.
For instance, if spouses were separated at the time of the accident, juries will tend to award much less money, if any at all, for loss of consortium.
These damages can also be pursued by parents in the event of a child's death. They are explicitly denied to step-parents, siblings, and pet owners.
It is important to keep in mind that not all of these damages apply to every personal injury case.
In fact, it is very rare that every category of damages applies to a single case.
However, an experienced personal injury attorney will evaluate each type of damages that is available and pursue all of those that apply to a particular victim's case, while keeping in mind how the jury will react to each of the different damages claims.
This view towards how the jury will react to damage claims, in the context of the facts of the case, is essential for successful settlement negotiation, or if it comes down to it, success in the courtroom.
Obstacles to Collecting Damages in Texas Personal Injury Case
Just because the law grants someone who was injured by another's negligence the right to pursue certain kinds of damages doesn't mean that the person responsible for the accident is going to say, "Sure, we did it and we'll pay you each and every category of damages you are owed."
In any injury case, it is the burden of the injured party to prove the defendant's culpability, as well as the validity of the damages sought.
At Grossman Law Offices, we respect that defense attorneys have a duty to their clients to pursue their interests as aggressively as possible. Sometimes though, that aggression crosses lines of decency that shock most people.
For instance, often when an injured person's spouse pursues a Loss of Consortium damages, the other side will troll social media, checking
Facebook relationship statuses, looking for posts which indicate that things aren't as going as well with the marriage marriage as the couple claims in court.
Similarly, they will speak to friends, co-workers, and anyone else they can find in an effort to uncover a fight that took place, even if it was years ago, to diminish the value of the Loss of Consortium claim.
It is quite strange that the news media will go ballistic and pontificate about how our legal system is broken when a suspect pain and suffering award is returned by a jury that heard all of the facts of a case, but the tactics that are used by defense attorneys every day, in an attempt to persuade juries not to award damages the law allows people to recover, never get reported.
Why an Experienced Texas Personal Injury Attorney is Crucial to Your Case
Not every lawyer is a personal injury attorney, and even most personal injury attorneys do not have over 25 years of experience helping thousands of injured Texans recover the compensation they are permitted to pursue under the law, like the attorneys at Grossman Law Offices.
That experience and the knowledge of how the law works in practice, not just in theory, is invaluable when pursuing a personal injury claim.
It helps injury victims maximize their ability to prove damages and receive the maximum amount of compensation that the facts of their case allow for.
If you have a question about a Texas personal injury, feel free to give us a call at any time, toll free, at (855) 326-0000. We answer the phone any time, day or night.