In a traditional case of negligence, the fact that the Defendant did a bad act is not necessarily enough for the Plaintiff to recover sums of money. Our judicial system is grounded on the fact that we want to compensate victims, not punish wrongdoers. As such, if a Plaintiff suffers a harm by a Defendant but has no lasting injury or damages to show for it- it will be very difficult for that Plaintiff to recover any compensation. In addition to showing a duty that was owed to the Plaintiff, which was breached by the Defendant, the Plaintiff also has the burden of showing and proving that this breach caused him or her to sustain damages.
The evaluation of pain and suffering and of the other aspects of damages requires a determination of how badly the plaintiff was hurt—the nature, extent, severity, permanency, and effect of the injuries. While any sort of physical pain or injury may have been small, this is not a bar to recovery. Courts in Massachusetts have articulated that even if a bodily injury may have been very small, if it caused mental suffering to the plaintiff, that suffering was a part of the injury for which he/she was entitled to damages.
Showcasing damages may come in a variety of flavors. For instance, if the injury causes or contributes to cause the development of a pre-existing disease, the person liable for the injury is also liable for the resulting aggravation. A court may also look to the loss of earning capacity sustained by the Plaintiff. When deciding such an amount the factfinder (be it judge or jury) may take into consideration what type of person the plaintiff is, the talents he or she has, the contributions plaintiff has made to society, etc. Another category of damages is loss of enjoyment of life. This is measured by his or her status in community affairs, personal interests and hobbies, contribution to society, etc. A plaintiff may recover reasonable medical and hospital expenses incurred in treating the injuries caused by a defendant’s purported negligence. It is not necessary that the plaintiff actually paid the expenses, just that they were incurred (such as through insurance).
As far as damages that punish the wrongdoer, also referred to as punitive damages, these are only recoverable on a negligence claim predicated on gross negligence and/or wrongful death. Under M.G.L. c. 229 § 2:
a person who …by willful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted …shall be liable in punitive damages in an amount of not less than five thousand dollars in such case as the decedent’s death was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant
One must keep in mind that a Plaintiff always has a duty to mitigate his or her own damages. The court has held that a party who fails to make reasonable efforts mitigate his or her loss, with the result that the injury is greater than it would otherwise have been, cannot recover for the amount of the available and necessary increase.
Pursing claims for negligence or under the Wrongful Death statute can be complicated and involve a multitude of moving parts. From determining whether you may have a Wrongful Death claim, who the Personal Representative should be, or whether or not a claim for conscious pain and suffering should be pursued, are matters that should be discussed with an attorney. Our office can help you. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.