Delaware Trial Handbook § 22:6. MEASURE OF DAMAGES: PERSONAL INJURY

The elements for compensatory damages for personal injury generally include (i) pain and suffering, (ii) loss of earning power (past and future), (iii) loss of time and necessary expense by procuring labor which but for such injuries the plaintiff would have performed himself or herself, (iv) medical expenses, and (v) compensation for the permanent nature of the injury.57

A plaintiff is entitled to such a sum as would reasonably compensate for any pain and suffering in the past or such as may occur in the future by reason of the injuries sustained.58 Such damages include mental as well as physical suffering.59 There is no benchmark by which a jury is obligated to measure pain and suffering.60 Rather, the amount of such damages will be controlled by the particular facts of the case.61 Damages, however, are confined to such pain and suffering as it is reasonably probable were caused by the injury.62

Lost earnings are not limited to monetary sums. They may be in any form (i.e., benefits) so long as they have economic value.63 Mere evidence of injury and the nature of the plaintiff’s occupation are insufficient to submit to a jury loss of future earnings. There must be expert testimony that the injury will interfere with the plaintiff’s ability to pursue a specific occupation or profession.64 An award for loss of future earnings must represent the present value of those earnings because of the plaintiff’s ability to use that money to earn further money. In determining future earnings, a jury may consider such issues as duration of earnings capacity, life expectancy, probability of increases, extent of incapacity, proper rate of interest and the applicable actuarial tables.65 In determining an award for loss of future earnings, the impact of income taxes should not be taken into account as it is too speculative.66 A decrease in actual earnings subsequent to an injury is the normal method of proving the loss of future earnings. The mere fact that wages do not increase following an injury, however, is not controlling upon the question as to whether or not there is evidence of probable loss of future earnings.67

Where the plaintiff owns his or her own business and the plaintiff’s personal services in its operation are of such a nature that another can perform the same services in the plaintiff’s stead, the expenditures for replacement of such services is a proper element of damages.68

To recover estimated future medical expenses, the plaintiff has the burden of showing a reasonable probability that such expenditures are necessary. This is usually shown by expert  medical testimony.69 A plaintiff may recover for medical or nursing services rendered only to the extent that such services were rendered for compensation. A loved one rendering free unskilled nursing services to a family member does not do so for compensation, and the value of such services generally may not be recovered by the injured party. The exception to this is when a spouse takes time off from work to give care, thereby losing earnings. In such circumstance, the plaintiff may recover the reasonable value of such service, not to exceed the financial loss suffered by the temporary unemployment.70 An award for all future medical expenses should be reduced to its present value as of the date of judgment. Otherwise, this may result in an overpayment to the plaintiff and an improper penalty against the defendant.71

In assessing damages for bodily injury, the jury may consider all of the activities, business, pleasure or otherwise, which the impairment impedes or prevents, but may not allow in addition special damages for deprivation of pleasure.72 A jury may also consider the life expectancy of the plaintiff.73 A party seeking damages for permanent injury has the burden of showing the reasonable probability of the permanency of the injury, although the permanent nature of the injury need not be established with absolute certainty.74

57. Garrett v. People’s R. Co., 64 A. 254, 257 (Del. Super. 1906); Graboski v. New Castle Leather Co., 64 A. 74, 75 (Del. Super. 1906); Wilman v. People’s R. Co., 55 A. 332, 334 (Del. Super. 1903); Armstrong v. Little, 54 A. 742, 743 (Del. Super. 1903); Armstrong v. Rhoades, 53 A. 435, 436 (Del. Super. 1902); Snyder v. People’s R. Co., 53 A. 433, 435 (Del. Super. 1902).

58. Prettyman v. Topkis, 3 A.2d 708, 711 (Del. Super. 1938).

59. Prettyman v. Topkis, 3 A.2d 708, 712 (Del. Super. 1938).

60. Smith v. Tappen, C.A. No. 91C-l 1-017, slip op. at 4, Steele, J. (Del. Super. Aug. 26, l993) (ORDER).

61. Kane v. Reed, 101 A.2d 800, 803 (Del. Super. 1954).

62. Coleman v. Garrison, 281 A.2d 616, 619 (Del. Super. 1971), app. dismissed, 298 A.2d 320 (Del. 1972), conformed to, 327 A.2d 757 (Del. Super. 1974), aff’d, 349 A.2d 8 (Del. 1975), overruled on other grounds by Garrison v. Medical Center of Delaware, Inc., 581 A.2d 288 (Del. 1989); Kane v. Reed, 101 A.2d 800, 803 (Del. Super. 1954).

63. Winter v. Pennsylvania R. Co., 68 A.2d 513, 514 (Del. Super. 1949).

64. Jardel Co. v. Hughes, 523 A.2d 518, 532 (Del. 1987). See also McNally v. Eckman, 466 A.2d 363, 371 (Del. 1983); Coles v. Spence, 202 A.2d 569, 571 (Del. 1964).

65. Steppi v. Stromwasser, 297 A.2d 26, 27-28 (Del. 1972).

66. McNally v. Eckman, 466 A.2d 363, 371 (Del. 1983); Gushen v. Penn Cent. Transp. Co., 280 A.2d 708, 710 (Del. 1971); Abele v. Massi, 273 A.2d 260, 261 (Del. 1970).

67. Coles v. Spence, 202 A.2d 569, 570-71 (Del. 1964).

68. Turner v. Vineyard, 80 A.2d 177, 179 (Del. 1951). See also Sears, Roebuck & Co. v. Facciolo, 320 A.2d 347, 349 (Del. 1974).

69. Weiner v. Wisniewski, 213 A.2d 857, 858 (Del. 1965).

70. Biddle v. Griffin, 277 A.2d 691, 692 (Del. Super. 1970).

71. Thorpe v. Bailey, 386 A.2d 668, 669 (Del. 1978).

72. Winter v. Pennsylvania R. Co., 68 A.2d 513, 515 (Del. Super. 1949).

73. Braderman v. Baltimore & P. R. Co., 134 A. 56, 57 (Del. Super. 1926); Messing v. Wilmington C. R. Co., 64 A. 247, 250 (Del. Super. 1905).

74. Laskowski v. Wallis, 205 A.2d 825 (Del. 1964).

© 2010  David L. Finger