Factors Affecting Damages Awards

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Nature of injury

It stands to reason that the most important factor which will affect the amount of damages that you can recover is the nature of the injury sustained. The more serious an injury is, the higher the value of the claim. If you are suffer from a soft tissue injury, such as with whiplash or neck strain, you will not recover as much as someone who is injured more seriously, involving ligament tears, bone fractures, and nerve damage. Injuries such as whiplash and back strains are known as soft tissue injuries because they involve muscle. Although the condition can be painful, it's usually not permanent. Moreover, there is limited ability to detect this condition through medical examination, whereas bone and ligament damage is easily seen on a standard x-ray. serious injuries that can be detected with a medical examination typically receive much higher damage awards. If you have medical documentation to prove your damages, you will usually receive more compensation for your injuries.

In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.

Degree of defendant's liability

As noted in our materials on negligence, if the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. There will no reduction in the award based on the defendant not being entirely at fault. For example, if you are a passenger sleeping in a car hit by a drunk driver, you are not at fault for your injury, while the defendant is completely at fault. The only issue at trial will normally be how much your damages are worth. However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease. At Richard C. Senker, Attorney at Law, we will vigorously contest any claim that you are partially at fault for causing an accident where appropriate. Using our experience and the services of expert accident reconstructionists and investigators, we will focus on proving the fault of the defendant so that we can obtain the maximum possible settlement or verdict for you.

Comparative negligence

If a plaintiff is found partially at fault for an accident, he or she has not lost his or her case altogether as long as the plaintiff could not have avoided the accident by exercising ordinary care. In Pennsylvania, modified comparative negligence is used to calculate the degree of the plaintiff's negligence and reduce the plaintiff's claim reward accordingly. 42 Pa. Cons. Stat. Ann. § 7102. The plaintiff's fault must be 50% (percent) or less of the total negligence in order for the plaintiff to recover damages. If the plaintiff is found to be more than 50% at fault for his or her injuries, there will be no recovery. 42 Pa. Cons. Stat. Ann. § 7102 If the plaintiff is found to be 50% or less at fault, the award of damages to the plaintiff will then be reduced in direct proportion to the plaintiff's percentage of fault, no matter what the ratio.

Example: Suppose a jury awards you $100,000 in damages after you fell down the stairs, however, it finds you 30 percent at fault for your injuries because you did not hold on to the hand rail. After applying modified comparative negligence, you would be entitled to $70,000 in damages - $100,000 minus 30 percent.

Joint Tortfeasors
The theory of joint and several liability is that when separate and independent acts of negligence of several persons combine to produce a single injury, the actors are considered joint tortfeasors. The plaintiff can sue these joint tortfeasors in the same action, and each individual defendant will be held responsible for the entire amount of damages. The purpose of this rule is to transfer the risk that one defendant will lack the resources to pay the damages from the plaintiff to the other defendants. If one defendant pays the entire judgment, that defendant can sue the other defendants for contribution equal to the amount of the damages that the jury found them responsible for. 42 Pa. Cons. Stat. Ann. § 7102 For the plaintiff to recover from the defendants, the plaintiff's negligence must be 50 percent or less of the defendants' combined negligence. So if the plaintiff is 45 percent at fault, and one defendant is 40 percent at fault and another defendant is 15 percent at fault, the plaintiff can bring an action against both defendants.

Example: Suppose the jury awards you $100,000 in damages because you were injured in a car accident. If the jury finds the driver of the other car 60 percent at fault and the municipality 40 percent at fault, you would be able to recover the full $100,000 from either defendant. If the municipality pays you $100,000 it can then sue the other driver for $60,000.

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.

In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations. If you or a loved one is a victim of personal injuries, call Richard C. Senker, Attorney at Law now at 1 800 AUTOCRASH or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don't delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

The Law Office of Richard C. Senker handles the following types of cases: Personal Injury including Automobile Accidents, Spinal Cord Injuries, Traumatic Brain Injuries, Medical Malpractice, Wrongful Death, Insurance Bad Faith, Nursing Home Abuse, Workers' Compensation, Airplane Accidents, Dog Bites, Drunk Driving Injuries, Large Truck Accidents, Motorcycle Accidents, School Bus Accidents, Slip and Fall Accidents.