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22.1 Damages – Personal Injury

Delaware Auto Injury Lawsuits – Personal Injury Claims for Damages

Per Civil Jury Instruction 22.1, the injured party (plaintiff) in a car or truck accident lawsuit in Delaware is permitted to make claims for financial losses as well as pain and suffering. Below is the text of the jury instruction for Personal Injury Damages, which explains the nature and scope of the claims allowed.

Personal Injury

If you do not find that [plaintiff’s name] has sustained [his/her] burden of proof, the verdict must be for [defendant’s name].  If you do find that [plaintiff’s name] is entitled to recover for damages proximately caused by the [__accident / injury__], you should consider the compensation to which [he/she] is entitled.

The purpose of a damages award in a civil lawsuit is just and reasonable compensation for the harm or injury done.  Certain guiding principles must be employed to reach a proper damages award.  First, damages must be proved with reasonable probability and not left to speculation.  Damages are speculative when there is merely a possibility rather than a reasonable probability that an injury exists.  While pain and suffering are proper elements on which to determine monetary damages, the damages for pain and suffering must be fair and reasonably determined and may not be determined by a fanciful or sentimental standard.  They must be determined from a conclusion about how long the suffering lasted, the degree of suffering, and the nature of the injury causing the suffering.

If you find for [plaintiff’s name], you should award to [him/her] the sum of money that in your judgment will fairly and reasonably compensate [him/her] for the following elements of damages that you find to exist by a preponderance of the evidence:

(1) compensation for pain and suffering that [he/she] has suffered to date;

(2) compensation for pain and suffering that it is reasonably probable that [plaintiff’s name] will suffer in the future;

(3) compensation for permanent impairment;

(4) compensation for reasonable and necessary medical expenses incurred to date;

(5) compensation for reasonable and necessary medical expenses that it is reasonably probable that [plaintiff’s name] will incur in the future;

(6) compensation for loss of earnings suffered to date; and

(7) compensation for earnings that will probably be lost in the future.

In evaluating pain and suffering, you may consider its mental as well as its physical consequences.  You may also consider such things as discomfort, anxiety, grief, or other mental or emotional distress that may accompany any deprivation of usual pleasurable activities and enjoyments.

In evaluating impairment or disability, you may consider all the activities that [plaintiff’s name] used to engage in, including those activities for work and pleasure, and you may consider to what extent these activities have been impaired because of the injury and to what extent they will continue to be impaired for the rest of [his/her] life expectancy.  [It has been agreed that a person of [plaintiff’s name]’s age and sex would have a life expectancy of ___ years.]

The law does not prescribe any definite standard by which to compensate an injured person for pain and suffering or impairment, nor does it require that any witness should have expressed an opinion about the amount of damages that would compensate for such injury.  Your award should be just and reasonable in light of the evidence and reasonably sufficient to compensate [plaintiff’s name] fully and adequately.

{CommentThis instruction almost always needs to be tailored to the particular facts of each claim for damages.}

Source:

Medical Ctr. of Delaware, Inc. v. Lougheed, Del. Supr., 661 A.2d 1055, 1060-61 (1995)(discussing issue of excessive awards for damages); Jardel Co. v. Hughes, Del. Supr., 523 A.2d 518, 527-32 (1987)(discussing compensatory and punitive damages); McNally v. Eckman, Del. Supr., 466 A.2d 363, 371 (1983)(allowances for likely promotions and pay increases proper in award of damages); Thorpe v. Bailey, Del. Supr., 386 A.2d 668, 668-70 (1978)(reduction of award to present value); Steppi v. Stromwasser, Del. Supr., 297 A.2d 26, 27-28 (1972)(future earnings must be reduced to present value); Henne v. Balick, Del. Supr., 146 A.2d 394 (1958)(requiring evidence of reasonable probability for loss of future earnings); Biggs v. Strauss, Del. Super., C.A. No. 81C-OC-46, Poppiti, J. (October 22, 1984), aff’d, Del. Supr., 525 A.2d 992 (1987);  Baker v. Streets, Del. Super., C.A. No. 84C-MR-18, Taylor, J. (July 25, 1985); Coleman v. Garrison, Del. Super., 281 A.2d 616, 619 (1971); Biddle v. Griffin, Del. Super., 277 A.2d 691, 692 (1970); J.J. White, Inc. v. Metropolitan Merchandise Mart, Del. Super., 107 A.2d 892, 894 (1954)(measure of damages in the absence of any willful, wanton, or intentional wrong-doing is the loss or injury resulting from the wrongful act of the defendant); Kane v. Reed, Del. Super., 101 A.2d 800, 802-04 (1954); Prettyman v. Topkis, Del. Super., 3 A.2d 708, 710-12 (1939); Balick v. Philadelphia Dairy Products Co., Del. Super., 162 A. 776, 779 (1932).

Credit: Delaware Superior Court

Page last reviewed and updated: April 4, 2017