Factors Affecting Amount of Damages Awarded
NATURE, EXTENT, AND DURATION OF INJURY
In a Louisiana personal injury case, the most important factors which determine the amount of damages awarded to an injured person are the nature, extent, and duration of the injuries. A severe case involving skeletal, ligament, or nerve trauma is more likely to qualify for greater compensation than a minor case of whiplash or back strain. Furthermore, most severe injuries are strongly supported by solid medical documentation such as x-rays, CAT and/or MRI scans, whereas some soft tissue injuries involving only muscle are difficult to detect by standard procedures. Permanence of the injury as well as the extent of treatment required, such as surgical intervention and/or long-term rehabilitation, also increase the value of the case. Further, the greater the disability, typically the greater the wage loss and resulting damage award.
LOUISIANA COMPARATIVE FAULT
Comparative fault is a defense available pursuant to Civil Code Article 2324 to reduce the amount that any negligent defendant may have to pay to a plaintiff for damages. This defense is based on an assessment of fault of all persons causing or contributing to the injury death or loss.
Accordingly, if a plaintiff is 30% at fault for an accident, the plaintiff can recover 70% from the defendant(s). If a plaintiff is 1% at fault for an accident, the plaintiff can recover 99% from the defendant(s). If a plaintiff is 45% at fault for an accident, the plaintiff can recover 55% from the defendants(s). Each negligent defendant is only responsible for its percentage/share of liability.
In the above example, the judge or jury determines the degree of the each party’s fault expressed as a percentage of the total damages suffered by the plaintiff. Fault of all parties must total to 100%.
Under Civil Code Article 2324, fault of all persons (both parties and nonparties) is allocated. Furthermore, one who commits an intentional tort cannot use comparative negligence of plaintiff as a defense. The intentional tortfeasor is 100% liable for plaintiff’s damages.
CREDIBILITY OF THE PARTIES
Another factor that may impact upon the value of your personal injury claim is the credibility of both the plaintiff and defendant. Either party can deal a fatal blow his case by undermining his own credibility. It is important to be honest, accurate, sincere, competent and fair. Credible statements can also be bolstered by reliable documentary evidence. A credible plaintiff who has credible witnesses is more likely to obtain a positive result.
AGE OF THE PLAINTIFF
The age of an elderly plaintiff can affect the amount of damages awarded to her in a personal injury case. This is based upon the concept that a younger person who suffers a severe injury is subject to many more years of pain, suffering, mental anguish and wage loss than an elderly victim. However, this argument can be counterbalanced by the argument that the last few years of an elderly person’s life are cherished the most and now, as a result of the accident, these golden years are dominated primarily by pain and disability.
The witnesses who testify on your behalf can greatly impact the outcome of your case. A witness should be credible and able to describe in detail the events of the accident to help establish liability on the part of the defendant. The best liability witnesses are unbiased, have a good memory, are able to observe the events causing the injuries and have a cohesive account or report of the facts.
Witnesses used to establish damages should be able to clearly describe the victim’s condition before the accident and after the accident to point out the change in quality of life that the victim has undergone.
An expert witnesses should be a specialists or active practitioners in the field in which she is testifying, familiar with textbooks and other authorities in her field and well regarded in her field of practice.
If you need help or have any question about your personal injury case, call me at 866-558-9151 or submit your inquiry online. Please be advised that you may be facing important legal deadlines so don’t delay.
Louisiana Civil Code Article 2323
LA-R.S. 23:1032, Louisiana Workers Compensation Immunity For Employers