What You'll Learn

  • Compensatory damages 2. Property loss
  • Punitive and nominal awards 4. Wrongful death and survival
  • Limits on recovery

Educational information only; not legal advice. This article is a general study aid and should be checked against current authority and course materials.

1. Identify the Recoverable Interest

Economic loss Medical expenses, lost wages, reduced earning capacity, funeral costs, and other out-of-pocket losses supported by evidence. Non-economic loss Pain and suffering, emotional distress, disfigurement, disability, and loss of enjoyment of life.

Property loss Full value for destruction or conversion; diminution in value or reasonable repair cost for damage; rental value for loss of use. Punitive damages Available for malicious, reckless, wanton, or similarly aggravated conduct when an underlying tort and the jurisdiction's requirements are satisfied.

Future damages must be supported with reasonable certainty and are commonly reduced to present value. The single-recovery rule requires the plaintiff to recover all past and future loss from the injury in one action.

Wrongful-death and survival statutes solve different problems. One compensates designated survivors for their own loss; the other preserves the decedent's existing claim for the estate.

Claim Who owns it? Typical recovery

Wrongful death Statutory beneficiaries or survivors. Lost financial support and services, companionship or society where allowed, and funeral or burial expenses.

Survival action The decedent's estate. Medical expenses, lost wages, property loss, and pain and suffering incurred before death, subject to statute.

Loss of consortium Spouse and, in some jurisdictions, another close family member. Loss of companionship, services, affection, intimacy, guidance, or support.

Property destruction Owner or possessor with the protected interest. Market value at the time and place of the tort, or another supported measure when no market exists.

Key Takeaway

The collateral-source rule traditionally prevents insurance or gratuitous benefits from reducing the defendant's obligation, although statutes may modify it. Mitigation prevents recovery for losses the plaintiff could reasonably have avoided. Payments for the same injury are credited so the plaintiff does not receive more than one full satisfaction.

Punitive damages are discretionary

They are not compensation and generally require a base award of compensatory or nominal damages. The amount must remain connected to the defendant's conduct and the harm to the plaintiff.

Nominal damages depend on the tort

Intentional torts protecting bodily or property interests may allow nominal damages. Negligence ordinarily requires actual damage and therefore does not use nominal damages to complete the claim.

3. Build the Damages Analysis

1 Identify each legally protected interest harmed: person, property, reputation, relationship, or estate. 2 Separate economic from non-economic loss and past from future loss. 3 Use the correct property measure: value, diminution, repair, or loss of use. 4 Test foreseeability, causation, certainty, and mitigation for each claimed item. 5 Distinguish wrongful-death recovery from survival recovery to avoid duplication. 6 Address collateral sources, settlements, punitive standards, and statutory caps only if the facts or jurisdiction raise them.

Key Takeaway

A crash victim incurs medical expenses and lost wages, experiences permanent pain, and later dies from the injuries. The estate may pursue losses belonging to the decedent before death, while statutory survivors may pursue their own support and companionship losses. The same item cannot be recovered twice.

Common Mistake

Do not list damages generically. Connect each item to the proper claimant, time period, proof, and legal measure.

Primary Authorities

  • • Anderson v. Sears, Roebuck & Co. (review of personal-injury awards).

  • • Montgomery Ward & Co. v. Anderson (collateral-source evidence).

  • • State Farm Mutual Automobile Insurance Co. v. Campbell (constitutional limits on punitive damages).

  • • Wrongful-death and survival statutes of the governing jurisdiction.

Exam-ready conclusion

Tort damages are structured, not intuitive. Classify the loss, identify who owns the claim, apply the correct measure, and enforce the rules against speculation and double recovery.