Determining Damage Amount

The most significant issue to most people involved in a personal injury claim is the issue of damages. Obtaining fair and just compensation for injuries you have sustained is the primary concern at . By using our experience and the extensive resources available to us on your behalf, we focus on achieving the highest possible monetary recovery for you.

When a judge or jury finds the defendant liable for wrongful conduct in a personal injury case, the issue then becomes what types of damages are due to the plaintiff, and in what amount. As you know, if you suffer a personal injury you’ll likely require medical attention and may need rehabilitation, all of which costs substantial sums of money. You may lose income (and/or have to use up “sick time”) because of the injury, and you may continue to lose income while treatment and recovery takes place. You may have sustained property damage to your car and other property. Since you can’t drive your vehicle while it is being repaired, you may have to rent one, and car repairs and rentals can cost money. You may also lose the ability to perform various activities of normal daily living, for a while or permanently. You may also endure significant pain and suffering, which may be ongoing as well.

The law permits you to seek recovery after an accident to “make you whole again.” The central concept is that you should be compensated in a manner that, as best as the law can arrange, places you back in the same position as you were before the accident. In most personal injury actions the plaintiff must have been injured in some way to be entitled to damages. For example, in negligence cases, we must prove that you suffered injury (some type of physical, emotional or monetary harm) for the defendant to be required to pay compensation to you. However, with some intentional torts (such as battery, assault or trespass) we may only have to show that the defendant engaged in the unauthorized conduct, without proving that you suffered actual physical harm, in order to recover damages (though damages in these situations are often nominal absent serious injury).

Three basic kinds of damages are awarded in personal injury cases: compensatory damages, punitive damages and nominal damages.

COMPENSATORY DAMAGES

Compensatory damages are derived from the word “compensate,” meaning “to make up for” or “to make whole”. Generally, these damages can be broken up into two sub-categories – actual damages and general damages. Actual damages seek to reimburse a plaintiff for out-of-pocket expenses incurred, or financial losses sustained. Actual damages typically include: 

  • Medical and hospitalization bills incurred to treat your injuries

  • Wages lost due to work missed while you recuperate

  • Costs of household or nursing help during recovery, including costs of wheelchair or crutches required

  • Cost of rental car or substitute transportation

  • Cost to replace or repair damaged property

As noted, injured victims can also sue for general damages in addition to actual damages. General damages include the things that can’t be precisely documented in dollars spent, including: 

  • Pain and suffering endured due to injuries and any subsequent mental anguish

  • Disfigurement resulting from injuries

  • Value of medical expenses you are likely to incur in the future

  • Value of wages you are likely to lose in the future

  • Permanency of injury and resulting pain and suffering

  • Loss of consortium (benefits of a relationship)

  • Loss of opportunity 

Deluomo & Crow

PLAINTIFF’S AND DEFENDANT’S CREDIBILITY

Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you accurately describe the events of the accident? Can you describe your injuries in detail, and in a convincing manner? Are you intelligent and well spoken? Would you make a good witness on your own behalf?

The term used to describe these intangible factors is “jury appeal.” Remember that the jury members will judge both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages, and if so, how much. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.

The credibility and perception of the defendant will also affect the amount of money you receive. If the defendant in a car accident case is a 20-year-old driving a hot rod, jurors aren’t likely to view the defendant favorably. This can also help a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the “holes” in defendant’s version of the accident will damage the defendant’s credibility, resulting in higher damage awards in most cases.

PLAINTIFF’S AGE

Age plays a role in determining the value of a plaintiff’s claim, particularly where permanency of injury is alleged. If you are a 20-year-old woman who lost her leg in an accident, then a jury will award a higher amount of damages than if you are a 80-year-old woman with the same injury. The basis for this is that the younger woman has more future pain and suffering, loss of enjoyment of life, loss of income, and mental anguish ahead of her than does the older woman.

WITNESS TESTIMONY

The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. It is helpful to have credible witnesses who can clearly describe your condition before the accident to the jury, so as to assist them in understanding the change in your condition post-accident. In addition, expert witnesses often play a critical role in the outcome of any personal injury trial. In cases where there are “dueling experts”, the background and professional experience of your expert is critical to establishing his or her influence over the jury.

JOINT AND SEVERAL LIABILITY

As a general rule, Oklahoma holds two or more defendants who are negligently responsible for causing an injury jointly and severally liable. Laubach v. Morgan, 588 P.2d 1071 (Okla. 1978). This means that in cases where multiple defendants are responsible for the plaintiff’s injury, each defendant is held individually liable for the amount of the percentage of the damages that are apportioned to the individual defendant. For example, if defendants’ A and B are each responsible for 40% of plaintiff’s damages, and plaintiff is 10% responsible, A and B are still liable for the 40% apportioned to the defendants individually.

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6812 N Robinson Ave
Oklahoma City, OK
73116-9039

405-834-0400
 
monty@delluomo.com
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