Factors Affecting Damages Awards

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Nature of injury

It stands to reason that the most important factor which will affect the amount of damages that you can recover is the nature of the injury sustained. The more serious an injury is, the higher the value of the claim. If you are suffer from a soft tissue injury, such as with whiplash or neck strain, you will not recover as much as someone who is injured more seriously, involving ligament tears, bone fractures, and nerve damage. Injuries such as whiplash and back strains are known as soft tissue injuries because they involve muscle. Although the condition can be painful, it's usually not permanent. Moreover, there is limited ability to detect this condition through medical examination, whereas bone and ligament damage is easily seen on a standard x-ray. serious injuries that can be detected with a medical examination typically receive much higher damage awards. If you have medical documentation to prove your damages, you will usually receive more compensation for your injuries.

In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.

Degree of defendant's liability

As noted in our materials on negligence, if the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. There will no reduction in the award based on the defendant not being entirely at fault. For example, if you are a passenger sleeping in a car hit by a drunk driver, you are not at fault for your injury, while the defendant is completely at fault. The only issue at trial will normally be how much your damages are worth. However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease. At Doehling Law, we will vigorously contest any claim that you are partially at fault for causing an accident where appropriate. Using our experience and the services of expert accident reconstructionists and investigators, we will focus on proving the fault of the defendant so that we can obtain the maximum possible settlement or verdict for you.

Comparative negligence

If a plaintiff is found partially at fault for an accident, he or she may not have lost his or her case altogether. In Colorado, comparative negligence is used to calculate the degree of the plaintiff's negligence and reduce the plaintiff's claim reward accordingly. as long as the plaintiff's negligence is not greater than the defendant's negligence. If the plaintiff's negligence is greater than 50%, then it will serve as a bar to recovery. C.R.S. § 13-21-111. The award of damages to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault, if less than 50% of the fault.

Plaintiff's and Defendant's credibility

Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you accurately describe the events of the accident? Can you describe your injuries in detail, and in a convincing manner? Are you intelligent and well spoken? Would you make a good witness on your own behalf?

The term used to describe these intangible factors is "jury appeal." Remember that the jury members will judge both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages, and if so, how much. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.

The credibility and perception of the defendant will also affect the amount of money you receive. If the defendant in a car accident case is a 20-year-old driving a hot rod, jurors aren't likely to view the defendant favorably. This can also help a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the "holes" in defendant's version of the accident will damage the defendant's credibility, resulting in higher damage awards in most cases.

Assumption of Risk

As a factor in apportioning fault in a negligence case, courts consider the "assumption of risk" by a plaintiff. If a person undertakes an action while aware of the risks associated with performing that action, there are circumstances where this assumption of the risk will be considered contributory negligence and will be weighed against the plaintiff when comparing fault in an accident. The person's actions become contributorily negligent when his knowledge of specific hazards that aren't normally present should create a standard of care that he must observe to be non-negligent. C.R.S. § 13-21-111.

Sudden Emergency Doctrine

Colorado recognizes the "sudden emergency doctrine." The sudden emergency doctrine was developed by the courts to recognize that a person confronted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal conditions.

This special rule is used when the actor is left no time for adequate thought, or is reasonably so disturbed or excited that the actor cannot weigh alternative courses of action, and must make a speedy decision, based very largely upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision, one which no reasonable person could possibly have made after due deliberation.

The doctrine does not, however, impose a lesser standard of care on a person caught in an emergency situation; the individual is still expected to respond to the situation as a reasonably prudent person under the circumstances. The emergency is merely a circumstance to be considered in determining whether the actor's conduct was reasonable.

The sudden emergency doctrine is available in a number of emergency situations and is used by both plaintiffs and defendants to counter charges of contributory and primary negligence. It is most commonly applied in the context of claims arising from motor vehicle accidents.

Plaintiff's age

Age plays a role in determining the value of a plaintiff's claim, particularly where permanency of injury is alleged. If you are a 20-year-old woman who lost her leg in an accident, then a jury will award a higher amount of damages than if you are a 80-year-old woman with the same injury. The basis for this is that the younger woman has more future pain and suffering, loss of enjoyment of life, loss of income, and mental anguish ahead of her than does the older woman.

Witness testimony

The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. It is helpful to have credible witnesses who can clearly describe your condition before the accident to the jury, so as to assist them in understanding the change in your condition post-accident. In addition, expert witnesses often play a critical role in the outcome of any personal injury trial. In cases where there are "dueling experts", the background and professional experience of your expert is critical to establishing his or her influence over the jury.

Joint and Several Liability

Some states holds two or more defendants who are responsible for causing an injury jointly and severally liable. This means that in cases where multiple defendants are responsible for the plaintiff's injury, each defendant is held individually liable for the full amount of the percentage of the damages that are not caused by the plaintiff himself. For example, if defendants' A and B are each responsible for 40% of plaintiff's damages, and plaintiff is 10% responsible, A and B are each still liable for the full 80% total apportioned to the defendants. This does not mean that the plaintiff can recover 80% from each of them, it merely means that the plaintiff can recover up to 80% total between the two defendants, whether it all comes from A, B, or a combination of the two.

In Colorado, however, a defendant is only liable for the amount represented by the percentage of fault attributed to him that produced the claimed injury, death, or damage. C.R.S. § 13-21-111.5 This statute abolished the concept of joint and several liability in Colorado law, and promotes the policy that no tortfeasor should be responsible for damages that the tortfeasor did not case. The same results apply whether the tortfeasor's actions were intentional or not. Slack v. Farmers Ins. Exch., 5 P.3d 280 (2000).

Example: A plaintiff is injured in a car accident and sees a chiropractor for treatment. Her insurance company asks that she see an independent medical examiner to confirm the injuries. This medical examiner injures her during the examination. The plaintiff sues both the independent medical examiner and her insurance company, whom she claims should have known he would have injured her. A jury awards the plaintiff $40,000 in compensatory damages, and finds the insurance company 40% and the independent medical examiner 60% at fault. Each defendant is required to pay out only the percentage of damages allocated by fault. So, the insurance company has to pay $16,000, and the independent medical examiner has to pay $24,000. Slack v. Farmers Ins. Exch., 5 P.3d 280 (2000).

Respondeat Superior

If an employee commits a tort during the "scope of his employment," his employer will be liable (jointly with the employer). This is the rule of respondeat superior. Respondeat superior is applied to cases involving "employees," in which the employee is subject to the close control of the person who has hired him. This is distinguished from an independent contractor situation, where the hiring person does not control the "physical details" of the work but rather just the general manner that the work is carried in. Independent contractors generally do not fall under respondeat superior liability unless the employer retains the right to control the manner in which the contractor performs the work. Lytle v. Kite, 728 P.2d 305 (1986). Example: A child is injured while crossing a road when he is hit by a plumber driving a company truck, which he maintains 24X7. The child sues the plumber's employer, under respondeat superior. If the plumber is found to be driving within the scope of employment, his employer will be liable for the damages. If he is not driving within the scope of employment, i.e. just picking up groceries for his family, then his employer will not be held liable under respondeat superior.

Alternative Liability/Acting in Concert Liability

As a special circumstance of joint and divisable liability, sometimes the actions of two or more defendants combine in such a way that it is nearly impossible for the plaintiff to identify which defendant's action caused the plaintiff's injury. An example of this would be if two hunters in the woods fired towards an animal, but one of the bullets struck the animal while the other bullet hit a bystander. Without knowing which bullet was fired by which hunter, the plaintiff would be unable to establish the liability of either hunter. To remedy this, some states, including Colorado, recognize "alternative liability" or "concert of action," where the actions of multiple negligent defendants result in an injury and the plaintiff can't prove whose act caused the injury. Reyher v. Mayne, 90 Colo. 586 (1932).

Example: Two hunters enter the land of another and shoot at the plaintiff's decoy geese. During this shooting, a bullet from one of the defendants' guns hits the plaintiff, and it can be determined which hunter fired the shot. However, since both were unlawfully engaged in hunting on the land where the plaintiff was allowed to hunt, both defendants are held liable under "acting in concert" theory. Even though only one defendant caused the bodily injury to the plaintiff, it was the participation, and not the degree that makes all the defendants liable. Reyher v. Mayne, 90 Colo. 586 (1932).

Joint Enterprise Liability

A "joint enterprise" may arise in negligence actions, where the negligence of one main actor is imputed to the other actors and results in imputed contributory negligence. It often arises in auto accident cases, where the negligence of the driver is imputed to the passenger because of the passenger's "right to exercise control" (either to allow the occupant of a second car to recover against the passenger, or to prevent the passenger from recovering against the negligent driver of the other car under the doctrine of imputed contributory negligence.) The 'right to exercise control' is not dependent upon the ability of the passenger to actually drive the vehicle. It is not contemplated that a co-owning passenger in exercising his right to control will physically wrest the wheel from the driver. Rather, verbal admonition, suggestions or even outright commands are the usual methods whereby the co-owning passenger exercises his right to control. It is a well-known fact that some of the better 'back seat' drivers are those who know little, or nothing, about the actual driving of the vehicle, but can nonetheless still offer friendly advice, if not flat commands, to the driver. Watson v. Regional Transp. Dist., 762 P.2d 133 (1988).

Example: A wife was riding as a passenger on a motorcycle operated by her husband. The wife suffered severe injuries to her leg and foot when the motorcycle collided with a bus owned and operated by the transportation district. The wife brought a negligence action against the district. A jury determined that the wife had suffered damages in the amount of $ 100,000 and that 51 percent of the damages were caused by the district's negligence and 49 percent by the husband's negligence. The husband's negligence could not be imputed to the wife under "joint enterprise liability" only if she was negligent by having control over the motorcycle, and that that negligence was the proximate cause of her injuries. Watson v. Regional Transp. Dist., 762 P.2d 133 (1988).

In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations. If you or a loved one is a victim of personal injuries, call Doehling Law now at (866) 941-9370 or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don't delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

The Gary Doehling Personal Injury Law Firm, P.C. handles the following types of cases: Automobile Accidents, Oil Field Accidents, Spinal Cord Injuries, Wrongful Death, Nursing Home Negligence, Cerebral Palsy, Traumatic Brain Injuries, Lead Paint Exposure, Toxic Molds, Medical Malpractice, Insurance Bad Faith Claims, Airplane Accidents, Dog Bites, Drunk Drivers, Large Truck Accidents, Motorcycle Accidents, School Bus Accidents, and Slip & Fall Accidents.