In any personal injury civil claim, the injured victim will take the role of plaintiff. Under both state and federal law, this victim will have the burden of proof to establish not only (1) the liability of the defendant(s), but (2) their damages that resulted from the defendant’s bad acts. Illinois, Indiana, and federal law will vary here.
To learn more, read: Work Accident in Illinois or Indiana: Workers Compensation Claim vs. Personal Injury Damages; Work Injuries and On-the-Job Accidents in Indiana and Illinois With Federal Law Protections: FELA, Jones Act, LHWCA, DBA; and Who Can Claim Damages After a Work Accident in Indiana or Illinois?
As a general rule, regardless of jurisdiction, the following list of ten different types of harm suffered after a serious accident are usually compensable in a personal injury matter.
Overview of Compensable Damages for an Accident Claim in Illinois or Indiana
Whether in a negotiated settlement or after a full jury trial, damages will be allowed once proven by the plaintiff in several different categories. The plaintiff-victim has the job of providing authenticated and admissible evidence of each individual item of damage.
As explained in the Indiana Model Civil Jury Instruction 703, jurors are instructed (paraphrased):
If you decide from the greater weight of the evidence that defendant is liable to plaintiff, then you must decide the amount of money that will fairly compensate plaintiff. In deciding the amount of money you award, you may consider the nature and extent of the injuries, and the effect of the injuries on the plaintiff’s ability to function as a whole person; whether the injuries are temporary or permanent; the value of lost time, lost earnings, and loss or impairment of earning capacity; the physical pain and mental suffering the plaintiff has experienced and will experience in the future as a result of the injuries; the reasonable value of necessary medical care, treatment, and services plaintiff incurred and will incur in the future as a result of the injuries; the aggravation of a pre-existing injury, disease, or condition; the disfigurement and/or deformity resulting from the injury and the life expectancy of the plaintiff.
1. Medical Expenses
Often, these types of damages begin to accumulate within minutes of the accident itself. First responders at the accident scene, as well as those providing emergency care at the hospital, will have charges. There may be extensive stays at a hospital; surgeries; anesthesia costs; physical therapy charges; drugs; and more. All medical care will have a correlated invoice documenting the expense. Future medical needs will also be involved here, as forecast by experts.
These damages are awarded to make sure the victim is not unjustly burdened with medical care costs that are the result of the wrongdoer’s actions (or failures to act).
From the Indiana Model Civil Jury Instructions on Damages (p.703):
An injured plaintiff may recover the reasonable cost of necessary medical expenses. To recover for medical expenses a plaintiff must prove that they were reasonable and necessary. … by showing payment of the bills or testimony of a treating doctor and generally proves necessity thought the testimony of medical experts.
2. Disfigurement or Scarring
Many different kinds of accidents are so severe that the human body is forever changed with scarring or disfigurement. The victim literally looks differently. Damages are recoverable here, recognizing not only redress for these permanent changes to appearance, but how the victim’s identity, self-confidence, and relationships (personal and professional) have been and will be impacted.
3. Pain and Suffering
Bodily injuries during and after a serious accident aren’t just the physical impact upon the human body itself, but include the physical pain and mental suffering of the victim. These will not have specific, corresponding invoices (exceptions here: specialized treatment to deal with constant pain and suffering; pain medications; etc.). Experts will be able to help prove up these damages.
From the Illinois Pattern Jury Charge Instructions:
The pain and suffering experienced [and reasonably certain to be experienced in the future] as a result of the injuries… [t]here must be evidence that such pain and suffering is reasonably certain to occur in the future.
4. Emotional Distress
This is a different form of damage from mental suffering. Damages involving emotional distress are more psychological in nature. The victim’s continued fear and distress caused by the accident (insomnia; nightmares; fear of driving or being in a car; etc.) are involved. It’s an absence of peace suffered by the victim after the accident. Therapists, psychiatrists, and other professionals can help to prove up these damages.
5. Rehabilitation Expenses
Accident victims may need weeks, months, or even years of physical or occupational therapy. They may require special equipment (i.e., a wheelchair). Modifications may need to be made to their home (think ramps instead of stairs; rails for beds and bathrooms; etc.). All these are recoverable damages.
6. Lost Wages and Lost Earning Capacity
After a serious accident, the victim is often hospitalized for a significant period of time and thereafter faces a long time of recovery and rehabilitation. Working is not an option now. Accordingly, the victim is not able to earn their wages as they did before the accident. These “lost wages” can be recovered from the defendants in a personal injury civil claim.
Sadly, all too often the victims of a catastrophic accident will never be able to return to their old line of work. Their injuries prevent it. The law recognizes this in the form of “lost earning capacity” damages, which are calculated by experts as the amount of money they would have been earning if there had been no accident.
7. Loss of Enjoyment of Life
Severe injuries after an accident will not only result in things like lost wages or lost earning capacity, they will also involve an entire change in the victim’s overall life. Things the victim liked to do before the accident, and can do no longer, are recognized as a form of damage. The changes in the victim’s quality of life are included here. For instance, if the victim can no longer enjoy morning walks with their dog, or play on the company’s softball team, they can obtain damages here.
8. Loss of Consortium
For those accident victims with a spouse, damages can be recovered for any harm suffered in that marriage. Changes in intimacy, affection, or daily companionship are recoverable. These are available for the accident victim’s husband or wife, as well.
From the Illinois Pattern Jury Charge Instructions (citations omitted):
In Illinois both husband and wife may recover for loss of consortium. The loss of consortium action must be joined with the principal action. However, punitive damages are not allowed in an action for loss of consortium.
9. Property Damage
Anything of real or personal property (think car, phone, etc.) that was harmed or destroyed in the accident is a recognized form of damage under the law. Damages will be calculated by experts who will opine on the lost value. Damages claims here may be for repair, or for replacement.
10. Punitive Damages
These are also known as “punishment damages,” and may be awarded not only to compensate an accident victim, but to punish the defendant whose acts or failures to act were egregious or grossly negligent. Their goal is to serve as a warning that our society will not abide such evildoing.
From the Illinois Pattern Jury Charge Instructions (citations omitted):
Where punitive damages may be assessed, they are allowed in the nature of punishment and as a warning and example to deter the defendant and others from committing like offenses in the future. The Illinois Supreme Court established that a reviewing court would “not disturb an award of punitive damages on grounds that an amount is excessive unless it is apparent that the award is a result of passion, partiality or corruption There were no clear guidelines in Illinois for determining when a punitive damages award was excessive. Relevant circumstances that a reviewing court should consider in determining whether a punitive damage award is excessive are to include the nature and enormity of the wrong, the financial status of the defendant, and the potential liability of the defendant.
Accident Injury Claims for Damages in Indiana or Illinois
For anyone who is hurt in an accident in our part of the country, there will be legal avenues for justice available under state or federal law. These accident victims will have the responsibility of proving up their case. They will have to gather the evidence, in its proper form, to show the wrongdoers who are liable and to establish each and every element of their legal damages.
Sometimes, all this mounting evidence will be so overwhelming that the wrongdoers (and their insurance carriers) will resolve the matter in settlement or mediation. In other situations, justice may require a jury’s involvement.
All accident victims need to understand the complicated procedure and need to recognize and prove all the kinds of harm that results from a serious injury. Sometimes, victims and their loved ones may not be aware that there are legal rights to things like the inability to play basketball with their kids, or their pain medication which doctors forecast will be necessary for a lifetime.
Having an experienced personal injury advocate to help in these matters can be invaluable, especially in areas where expert opinions will help prove up liability or damages.
For more, read:
- Why a Lawyer who is a Trial Attorney Is Important for Accident Victims in Personal Injury Cases
- Accident Reconstruction Experts and Injury Claims
- Deadlines for Injury Victims to File Lawsuits: Statutes of Limitations
- Task List for Chicago Road Construction Accident Victims Seeking Justice for Work Injuries
- Bad Faith: When an Accident Victim is Victimized a Second Time by the Insurance Company.
Accident damages are recognized in Indiana and Illinois. State or federal law will define what they are, and how to meet the burden of proving them up. Accident victims have the job of proving their claims with admissible evidence. They need to know the laws apply to their situation and all their damages recognized as recoverable under the law. Please be careful out there!
