Compensatory Damages in Small Claims Negligence Cases - dummies

Compensatory Damages in Small Claims Negligence Cases

By Judge Philip Straniere

In a negligence case in which you suffer personal injury or property damage because of the defendant’s negligence, the money you receive in small claims is also designed to make you whole. But you may also be able to recover money for “conscious pain and suffering,” in addition to lost wages, medical expenses, and the like.

Personal injury

Establishing pain and suffering is a more difficult undertaking than establishing a cut-and-dried monetary claim. You must produce medical records and medical testimony as well as establish a subjective standard of how much pain you suffered as a result of the defendant’s negligence.

Truthfully, the only personal injury cases in small claims cases are those where the plaintiff doesn’t have a lawyer because:

  • The plaintiff is a difficult client — to put it politely.

  • The defendant’s liability is difficult to prove.

  • The injuries to the plaintiff are so inconsequential that no lawyer would waste time taking the case.

Medical expenses, lost wages, and other out-of-pocket costs are easy to prove if you have the proper documentation, but loss of enjoyment of life and other similar damages are harder to evaluate.

Loss of enjoyment of life is a separate complaint than physical or mental pain and suffering. It refers to any damages that result in the plaintiff being unable to participate in activities or pleasures of life as he could previously. For example, a person who is paralyzed after being hit by a drunk driver can claim loss of enjoyment of life because he can no longer play with his children.

Experts are often needed to prove future lost wages and future medical expenses in personal injury cases. Because no one can predict what future expenses will be with any certainty, experts are required to make educated guesses. Without expert witnesses, such damages are considered speculative and uncertain.

To establish psychological damages, you must prove your response is beyond a normal reaction and resulted in a change in behavior. For instance, if a dog bites you, it’s normal to be afraid of dogs. Bringing that statement into court will only result in a minimal damage award, for instance the medical costs incurred and the monetary value of the scar resulting from the bite or the stitches you received.

But if you testify that you’re now afraid to leave the house, require someone to be with you at all times, can’t sleep at night, and are scared of the dark and must leave all your lights on, you establish a change in behavior beyond the normal reaction. This may result in a greater damage award.

How to get money after a car accident

Damage to personal property also has its own rules. If your car is damaged in an accident, then the amount of damages is the cost of repairs. You aren’t getting a new car from the accident; you’re only getting the value of the car on the date of loss.

Several things can happen after a car accident:

  • You accept the defendant’s insurance company’s estimate, and take the money it determines it will cost to have the car repaired. In this case, you do not need to involve the court. This is what insurance is for.

  • You reject the insurance company’s estimate, pay for the repairs out-of-pocket, and take the defendant to small claims court for the difference. You’ll have to establish why the insurance company’s offer wasn’t enough to repair your car. For example, you may have the mechanic come in and explain why what he had to do cost more than the insurance carrier wanted to pay.

  • You reject the insurance company’s estimate but can’t afford to pay for the repairs until you collect from the defendant. You may have to produce at least two repair estimates. Some courts award you the average of cost estimates from both you and the defendant. Other courts take the lowest estimate.

  • The cost of repairs exceeds the value of the vehicle. You get the book value of the vehicle paid by the defendant’s insurance. To counter this possibility, you may need to have your mechanic come in and establish the mileage and the condition of the car. You can also go to websites or books recognized in the auto industry as accurately evaluating the value of used vehicles.

You must establish both the liability of the defendant and the amount of damages you suffered.

If you produce a picture of your car or the defendant’s car, make sure that the photo includes the license plate or some other distinctive marking on the vehicle. Unless you’re injured in the accident, there really is no excuse as to why you wouldn’t have a photo taken at the scene.

It can also be important to be able to establish when the pictures were taken, either with a date and time stamp on the photo itself or digital information in the photo file.

Personal property damage

When other types of personal property are involved, such as if your basement floods or the cleaner ruins your clothes, the amount you can recover as damages is the value of the property on the date of loss.

This means if your ten-year-old couch is ruined by a sewer backup, you get the value of a ten-year-old couch. The court won’t award you what you paid for the couch ten years ago or the cost of going out to the furniture store and buying a new couch.

Trying to prove the value of old items of personal property is difficult. What you paid for it is not the measure of damages, nor is what it costs today to replace it. If you have a great deal of personal property damaged, it pays to hire an insurance adjuster to prepare a statement as to the value of the property on the date of loss, called actual cash value.