An Introduction to Damages in California Personal Injury Matters

For a more general introduction to personal injury, please read our Basics of Personal Injury article.

Damages are the monetary award available to the injured party in a civil suit. As the Courts cannot mend broken bones or soothe emotional scars, awarding damages is their way of compensating the victim - to some degree - for the injuries suffered.

If you have a legitimate personal injury claim, what damages are you entitled to?

As a rule, personal injury victims should seek damages both consistent with the type of personal injury claim they are bringing and consistent with various facts and circumstances surrounding the case itself. To better understand this process, one must first be aware of the different types of personal injury claims.

Personal injury claims can be broadly separated into three categories: 1) intentional, 2) negligence-based, and 3) strict liability.

Intentional Torts

In personal injury law, intentional tort requires that the at-fault party willfully caused the injury. Though it is common for people to instinctively associate this willfulness with aggressive physical harm, such direct willfulness is not necessary to implicate intentional tort. Defendants can also be found liable in intentional tort for willful negligence and willful ignorance leading to injury.

Negligent Torts

Negligent torts are perhaps the most common type of personal injury claims. Under a theory of negligence, the at-fault party is liable for your injury if they owed you a duty of care, that duty of care was breached, and said breach substantially caused the injury. Negligence does not require willfulness or intention. For example, in an auto accident case, though the at-fault driver might not have intended to hurt you, his unsafe driving would still make him potentially liable for your damages under a theory of negligence.

Strict Liability

In a strict liability case, the defendant is liable for your damages even if they did not willfully inflict the harm upon you, intend to cause harm, or negligently cause harm. All that you have to show in a strict liability case is that the defendant is substantially responsible for your injuries. The most common strict liability cases typically involve product liability (for example, if your toaster explodes and burns your arm, you might be able to bring a product liability claim), but a personal injury claim can also be brought under a theory of strict liability for animal bites and for injuries due to a defendant's ultrahazardous activities.

Similarly, the damages aspect of a personal injury case can be broadly separated into three categories: 1) special damages (economic), 2) general damages (noneconomic), and 3) punitive damages.

Special Damages (Economic)

Special damages - otherwise known as economic damages - are the out-of-pocket expenses suffered by the victim as a result of the injury. They are easily identifiable, measurable, and generally financial in nature. Importantly, special damages are objective, not subjective, and therefore tend to be less speculative than general, noneconomic damages.

The following may be considered in totaling one's special damages. It is not an exhaustive list.

  • Wage loss.
  • Loss of future earning capacity and job opportunities.
    • This is more speculative, and may be assessed and estimated based upon the plaintiff's age, education, health, gender, and pre-injury career prospects, among numerous other factors.
  • Present and future medical expenses relating to the suffered injury.
  • Loss of property.
  • Cost of repairs for damaged property.

Importantly, plaintiffs are entitled to special damages in all personal injury actions.

General Damages (Noneconomic)

General damages - otherwise known as noneconomic damages - are more subjective, more speculative. They account for the emotional or psychological ramifications of the injury, as well as the pain and suffering resulting from the injury. General damages are not easily measurable, and under California personal injury law, there is no standard damages values for various general damages issues (such as pain and suffering). As such, it is important to hire a skilled personal injury attorney to accurately assess the value of your general damages and argue the same.

The following may be considered in assessing one's total general damages. It is not an exhaustive list.

  • Emotional distress.
    • This is quite a broad category and may include such feelings as embarrassment, public humiliation, anxiety, grief, anger, and more.
  • Physical pain and suffering.
  • Disability and impairment effects on quality-of-life.
  • General quality-of-life issues.
  • Loss of companionship/consortium.
    • This is available as a damages claim for surviving family members (for example, a husband who loses his wife to an auto accident may be entitled to loss of consortium general damages).

Plaintiffs are entitled to general damages in all personal injury actions, but may only be able to assert a legitimate claim as to certain general damages (for example, a single woman who is injured falling down faulty stairs at a restaurant may be entitled to damages for pain and suffering, but may not be entitled to damages based on loss of consortium or loss of companionship (as the fall was not fatal and, further, only a surviving family member or spouse can claim loss of consortium/companionship)).

Punitive Damages

Cases involving punitive damages are sometimes responsible for extremely high damage awards (punitive damages are calculated by multiplying the compensatory damages - the special damages and general damages total - by a factor to be determined by the court). Unlike special damages or general damages, punitive damages are not meant to compensate the victim of an injury. Punitive damages are awarded for the public purpose of punishing the at-fault party when they have engaged in particularly bad behavior. The high damage totals in punitive damages cases are thus meant to discourage similar bad behavior in society as a whole. Punitive damages are fairly uncommon in personal injury law, as the plaintiff has to prove not only that the defendant(s) acted willfully, but also that they did so in a particularly malicious, wanton, or reckless manner.

In personal injury, punitive damages are generally only available in Intentional Tort actions and sometimes in Strict Liability actions. It is difficult to sustain a punitive damages award in a product liability action, but not impossible, as proof of malice does not require an actual intent to harm - proof of malice can be satisfied by the defendant's conscious disregard for safety and willful disregard of the dangerous consequences that result (Taylor v. Superior Court (1978) 24 Cal.3d 890, 894-895). For example, in the product liability case of Grimshaw v. Ford Motor Company (1981), a punitive damages award was found to be justified when evidence was presented that defendant automobile manufacturer knew of a probability of fuel tank fires and could have inexpensively prevented them, but did not take quick corrective action to fix the issue. Defendant's behavior was found to be malicious under the law.

Another example of a case in which punitive damages may be awarded is where a drunk driver causes serious bodily injuries or death. The law provides that voluntary intoxication may be sufficient to establish the malice element. Driving while intoxicated can be used to establish conscious disregard for safety and willful disregard of the very dangerous consequences that result from such conduct. One of the leading cases establishing the right of victims of drunk drivers to recover punitive damages is Shore v. Gurnett, 122 Cal.App.4th 166, in which founding partner Brian J. O'Grady worked as plaintiff's counsel. In this case published by the First District Court of Appeal, the Court affirmed a jury verdict obtained by Brian J. O'Grady of $7,500,000 in favor of the surviving victims whose husband and father were killed at the hands of a drunk driver.

Damage Limitations

Depending on your personal injury claim, the total damages award may be limited to some degree.

In California, medical malpractice damages are capped by the Medical Injury Compensation Reform Act (MICRA). Essentially, MICRA caps a medical malpractice plaintiff's potential general damages (noneconomic) at $250,000 if the malpractice claim is based on negligence. This is a significant limitation, as special damages may be low, and thus a medical malpractice plaintiff may have to rely on general, noneconomic damages. Medical malpractice cases are also notoriously expensive to try, as they involve numerous expensive experts and juries tend to be biased towards educated medical professionals in negligence actions (i.e., juries tend to trust that the decisions made by medical professionals are by default reasonable). Because of the inherent difficulty and expense of trying a medical malpractice case, in combination with the MICRA damages cap, many attorneys avoid taking on personal injury cases involving negligence-based medical malpractice claims.

California law also places a general damages (noneconomic) cap on uninsured drivers, even if the uninsured driver is not at-fault. If you are an uninsured driver, you are therefore at a significant disadvantage when bringing a personal injury action, as you will be unable to obtain compensation for pain and suffering, emotional distress, etc.,, which often comprise significant portions of one's total damages award.

Punitive damages are not immune to damage caps, and have actually been capped at the federal level. In several cases through the 2000s (State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408; Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159), the US Supreme Court capped punitive damages awards at a maximum of nine times the compensatory damage award (special and general damages combined). This punitive damages cap currently operates as legal precedent in the state of California.

For a free consultation with an experienced, highly successful personal injury attorney, call the Law Offices of Brian J. O'Grady at (650) 318-6131 to set up your appointment today.