DAMAGES

Assessment

In Jewish law, once the tortfeasor's liability for the damage has been established and he is ordered to compensate for the loss, the measure of damages requires determination. This is done by assessing the market price of the damaged object prior to and subsequent to sustained damage (see bk 84b on injury suffered by an animal or person); the difference is the amount which the tortfeasor has to pay (bk 11a). In this way, the party who has suffered damage is enabled to purchase on the market an object such as was his before it was damaged, which damage is thereby annulled. If the damaged object is not sold separately on the market but as part of a larger unit only, the difference between the assessed market price of the unit – i.e., undamaged and with the damaged part – is the measure of compensation. Thus, for example, the owner of an animal which has consumed a row of unripe fruit in another's field, does not pay according to the value of the fruit eaten by his animal – as no one buys unripe fruit, which is valueless. Instead – it being customary for merchants to buy a large field of yet unripened fruit – the market price of the fruit in a large field is assessed, with and without the row in question respectively, and the difference is the measure of damages. Another opinion maintains that the measure is the difference between the respective market values of the land itself when sold with and without the row of fruit (see Yam shel Shelomobk 6:18). The sages of the Talmud are divided on the question of the size of the field to be taken as the standard for valuing the damaged row, i.e., whether it should be 60 times the size of the row, or larger (bk 58b, 59b). Similarly, if injury is caused to the embryo of an animal, the measure of damages is the difference between the market values of the animal, pregnant and otherwise respectively, but the embryo itself is not assessed, for it is valueless – nor is it assessed as if it were already born (Shitah Mekubbeẓetbk 47a, s.v.amar rava).

In terms of this assessment, the tortfeasor does not compensate the injured party for any future loss of profits which result from the injury (Tos. to bk 34a, s.v.shilmale), nor for the loss of any benefits which could have been derived from the use of the damaged object, except insofar as such may already be accounted for in reducing the market price of the damaged object, at the time the damage was sustained. This rule is consistent with the principle that the tortfeasor is liable only for such damage as he ought to have foreseen at the time of his wrongful conduct, but not for any other or more extensive damage (see *Torts). The reason for this is that any loss of profits not reflected in the market price is a loss which is not foreseeable, and one which people accordingly do not make allowance for in the price they are prepared to pay on the market. For this reason too the tortfeasor does not compensate for any damage which the injured party could have avoided after suffering injury, since the former could not have foreseen that the latter would not do so. (Tos. to bk 10b, s.v.lo; bk 85b, on the failure to observe medical instructions in a case of personal injury.)

Where a person could not have foreseen that his conduct would cause damage, he is in the position of an "anus" (i.e., the consequences are caused by a mischance) and is absolved from liability (see *Torts); however if he benefits from the damage caused to another, as in the case where his animal eats vegetables left by another on a public road so that he does not have to feed it, he is liable to the injured party to the extent of the benefit derived (bk 20a:55b).

Assessment of Damages for Personal Injuries

A person who willfully, or by gross negligence (karov la-mezid), inflicts bodily harm (ḥabbalah) on another, must pay compensation to the latter, not only for the nezek ("loss," "damage") but also under four additional headings: ẓa'ar ("pain and suffering"), rippui ("medical expenses"), shevet ("loss of earnings"), and boshet ("humiliation"; detailed in ḤM 420). Nezek is assessed as in the case of damage to property, i.e., by comparing the injured party to a slave and estimating the respective prices he would fetch if sold as such on the market before and after the injury, the difference being the measure of compensation. This estimate takes account of the difference between the remuneration that could be earned for the heavy work he would have done if healthy and that which he shall earn for the work he can do having a disability (compare Abbaye's words "shevet gedolah," bk 86a; and R. Isaac in tj, bk 8:3, 6b). Ẓa'ar is assessed by estimating what a person, like the injured, would be prepared to pay to avoid the pain resulting from the injury as by way of narcotics or a drug; rippui is an estimate of the medical expenses to be incurred by the injured in order to be cured; shevet is the estimated loss of remuneration which the injured could have earned during the period of his illness; boshet is assessed according to the social position of both parties (bk 8:1). Because of the difficulty in measuring boshet in monetary terms, the sages at various times determined fixed measures for various acts of boshet, thus, e.g., 200 zuz for a slap on the face, 400 zuz for pulling a man's hair or spitting on him – the tannaim already being in dispute as to whether these measures were for the rich or for the poor (bk 8:6). Where the injured party suffers damage under one or some of the five headings only, the injuring party compensates him accordingly: thus if the injured party suffers boshet or rippui only, the latter compensates him under these headings alone.

Compensation for damage under the above four headings, excluding nezek, is payable only in the case of bodily harm inflicted willfully, or by gross negligence, caused by the wrongdoer's person (Rashi to bk end of 26a). There is no liability for boshet in the absence of an intention to harm or shame (bk 8:1). The interpretation of the commentators is that there is liability for nezek even when resulting from mischance (ones), and no liability under the other four headings except when resulting from negligent or willful conduct. But it may also be argued that there is liability for nezek in the case of negligence only, while a man is not liable under the other four headings unless the conduct is willful, or grossly negligent. It would seem that the reason for confining liability under the aforesaid four headings to the case where an injury is willfully inflicted by one person on the body of another (and not by a person on an animal or by an animal on a person), whereas for nezek there is liability in all the above cases, stems from the principle that the tortfeasor's liability for compensation is confined to such damage only as he could have foreseen at the time of causing the injury. Hence, inasmuch as damage under the said four categories of compensation varies from one injured party to another, the tortfeasor cannot be required to have foreseen the measures of each relevant to the particular injured party except when he has willfully inflicted a bodily injury by his own hand, because in such case, having seen the injured party to whom he was about to cause harm, he should have known the measure of ẓa'ar, rippui, shevet, and boshet peculiar to this particular injured person. Insofar as the said four categories of damage accompany every case of ḥabbalah and thus their scope should therefore be foreseen by the tortfeasor, they are apparently already included in the assessment of the nezek. Moreover, even where compensation is payable under all five headings specifically, payment is made to the extent of the foreseeable measure of each only and in no larger measure. Thus if an assessment of compensation for an injury has been made, this amount of damages only is payable, even if the health of the injured party should thereafter deteriorate unexpectedly (bk 91a).

Already in the talmudic period – in Babylonia, and certainly in other countries – many judges would not give judgment for damages under one or more of these five categories. Some would not award compensation for boshet, or even nezek; it was not necessary as a deterrent because damage of this type was not common, and the judges outside Ereẓ Israel, not being ordained by the rabbis of Ereẓ Israel, did not feel themselves qualified to deal with such matters (bk 84b). Also in the post-talmudic period damages were not awarded under one or more of these categories according to law (Sh. Ar., ḤM 1:2), but rather the tortfeasor would be placed under a ban or punished in some other manner until he effected a reconciliation with the injured party and reached agreement with him on an equitable compensation (Piskei ha-Roshbk 8:3).

Payment of damages may be made in money or in chattels having a monetary value and sold on the market; land, to serve as a means of payment, must be "of the best" (ibid. bk 7a). The damages are looked upon as a debt due to the injured party, in the same way as a loan or any other debt. However there are traces in the Talmud of a view that payment of damages is a penalty serving to punish the wrongdoer for his conduct and is not merely compensation (Albeck, Hashlamot ve-Tosafot to his edition of the Mishnah bk 1:3). Some sages hold the opinion that payment of "half-damages" in the case of shor tam (ox that has not gored before – see *Avot Nezikin) is a fine (bk 15a), and therefore payment of "half-damages" was not sanctioned in Babylonia and in other countries as from the talmudic period (bk 15b).

The law of the State of Israel determines that the damages due to the injured party are the amount required to restore him, subjectively speaking, to the position in which he would have been but for suffering the injury. The measure of damages varies therefore not only according to the damage actually incurred, but also in accordance with the individual circumstances of the injured party.

[Shalom Albeck]

A Fixed Sum for Damages

payment

As noted above, for certain types of damage the Sages assessed and determined payment of a fixed sum.

The Jerusalem District Court adjudicated a case concerning a man who publicly hit another man in the face with his fist (ca [Jer] 507/00 Silberg u Sha'ir, 2 psm (5760) 289). The parties requested that the Court adjudicate their case in accordance with Jewish Law. The assailant argued that payment in this kind of case fell into the category of a fine so that in accordance with Maimonides' ruling, he should only have to pay the fixed sum determined by the halakhah: "Many blows involve humiliation and some pain, but no irreparable bodily injury. The Sages previously assigned fixed sums for such blows… and all of them constitute fines. The fixed sum paid covers pain [ẓa'ar], embarrassment [boshet], medical expenses [rpipui] and lost work time [shevet]…" (Maim. Yad, Hovel u-Mazik 3.8)

The Court (Judge Y. Adiel) rejected the assailant's argument, relying on Bet Yosef (at Tur, ḤM 420.34;), who rules that Maimonides' comments only refer to a case in which the blow lacks the force required to cause severe bodily injury. Only then does the fixed sum replace individual compensation under each of the main headings of damage. In the case of a stronger blow, one liable to cause severe physical injury, even Maimonides would concur that compensation must be made for each of the relevant headings of damage, based upon a separate assessment for each heading.

In the case at hand, the Court determined that the blow was capable of causing severe bodily harm; hence, the payment of a fixed sum was not applicable. Even so, in the absence of any irreversible injury, compensation was only awarded under the four heads of damage. (Maim., ibid., 2.2; Sh. Ar., ḤM 420.5).

Damages – Li-Fenim mi-Shurat ha-Din (Beyond the Letter of the Law)

There are cases in Jewish law in which the strict law does not allow the court to impose payment on the assailant, yet the assailant is still liable under "the Law of Heaven" – that is, morally culpable. The authorities ruled that the practical import of such liability is that the Court must inform the guilty party that, while it cannot impose monetary payment on him, he is still morally obligated to discharge his liability and pay the plaintiff (R. Shlomo Luria, Yam Shel Shlomo, bk 6.6). Other authorities even ruled that he is disqualified as a witness until he pays, because he is in possession of stolen money (Me'iri, on bk 56a).

On occasion, the contemporary rabbinical courts obligate the assailant to pay part of the damages by choosing the path of compromise (see *Compromise). For example, when damage occurs by way of gerama (damage resulting indirectly from the assailant's action. See *Gerama and Garme). In such cases, the courts do not obligate the assailant to pay in the framework of damages, but instead rule that he must pay under the law of compromise. The rabbinical court ensures the execution of justice by resorting to the institution of compromise when the strict law does not provide a remedy (see, e.g., the rulings of the Kiryat Arba Regional Court, vol. I, page 205, and the index there; Rabbi Z.N. Goldberg, "Shivḥei ha-Pesharah," in: Mishpetei Areẓ (2002).

As noted, another means of achieving the same goal is by the principle of li-fenim mi-shurat ha-din ("being more generous than the law requires"). This issue was adjudicated in the Israeli civil court. In the Kitan ruling (ca 350/77 Kitan v. Weiss, pd 33(2) 785), the Israeli Supreme Court reversed a lower court's award of compensation for damages in a claim submitted by the relatives of a man murdered by a worker in a factory. The worker killed the man with a gun given him by the factory for work purposes. The respondents argued that, due to the worker's problematic mental state, the factory should have foreseen that his possession of a weapon was fraught with danger. Hence, they argued, the factory should be required to compensate the victim's family. The appeal was rejected due to "lack of the required causal connection between the appellant's (i.e. the factory's) negligence, and the killing of the deceased (page 808 of the ruling).

In terms of strict law all three presiding judges (Justices Shamgar, Witkon, and Elon) concurred with this conclusion. In his ruling, Judge Elon added that it would be appropriate for the factory to go beyond the strict law and compensate the relatives of the deceased:

For Judaism has a tradition, and there is a fundamental principle of Jewish Law, that along with strict liability, there is an additional obligation to act beyond the dictates of strict law (li-fenim mi-shurat ha-din). It is of particular significance here that this obligation found its chief expressions in the field of torts in a case relating to a problem identical to the one at hand. (ibid., 809).

Judge Elon states further:

In the development of the principle of "going beyond the letter of the law" in Jewish law, many halakhic authorities took the position that in certain circumstances this approach is mandatory. This is attested to by Rabbi Joel Sirkes, one of the leading Sages in Poland at the end of the 16^th and the first half of the 17^th century, in his commentary Bayit Hadash (Bah) on the Tur: "It is customary in every Jewish court to compel the wealthy to pay where proper and appropriate, even where the letter of the law goes against it" (Bah on Tur, ḤM 12.4; see Menachem Elon, Jewish Law, 1:155f.).

This approach is anchored in the broader worldview of Jewish law, that finds expression, inter alia, in the well-known principle that "the giving of charity may be compelled" (tb, Ket. 49b), although this principle too is only exercised under certain conditions and circumstances. As is known, this rule constitutes the basis for the duty to provide maintenance for children and relatives under certain circumstances, even when this duty does not exist under strict law (see Jewish Law, 1:116f).

In the Israeli legal system, no person is compelled to act more generously than the law requires; such action is left to the [personal] initiative and will of the litigant. Yet under certain circumstances, it seems appropriate for the expression of such a wish to originate with the judge sitting on the dais-and here, too, the tradition of Jewish law provides a firm basis for this approach. In this context, Justice Elon wrote elsewhere that:

The halakhic system clearly distinguishes between normative rulings, accompanied by judicially enforceable sanctions, and rulings lacking such sanction. Yet the source and background common to legal rulings and to moral imperatives have brought about the following substantive phenomenon within the world of halakhah: The legal system itself; in its role as such, occasionally makes reference to a moral imperative unaccompanied by coercion on the part of the court. Hence, even when there is no legal recourse to coercion, this does not absolve the Court of its judicial responsibility in the particular case. A rabbinical authority in his responsa, and Jewish courts in their rulings, should all include the moral imperative – to the extent that it exists – as part of their response or ruling on the matter under discussion. (Jewish Law, I. 145f.; cf ibid., 619–620).

Personally, I would hope that the appellant, whose position is supported by strict law, will act more generously, and compensate the respondents, just as he originally proposed. This will fulfill what the wisest of all men taught us: "So follow the way of the good and keep to the paths of the just" (Prov. 2:20), this being the source for the principle of going beyond the letter of the law (Jewish Law, I:809–10).

President Shamgar demurs from the aforementioned approach of Judge Elon "that seeks to elevate payment of compensation li-fenim mi-shurat ha-din to the status of a settled general principal of the law of torts," due to "the absence of clear standards"; [the danger of] "filing frivolous appeals"; and other reasons (ibid., 805). This was also the position of Justice Witkon, who felt that granting compensation beyond the letter of the law should be left to the discretion of the person who would have to pay it. He explains, "I would not recommend blurring the boundaries between liability and non-liability" (ibid., 807).

Further on in his judgment, Judge Elon added, in explaining his position:

I believe that it is fitting, as I emphasized, that in certain circumstances the court should make such a request. As to the effect of that request, I completely agree with the following statement of my distinguished colleague, Justice Witkon, for whom I have the utmost respect: "I too will be happy if the respondents receive some measure of compensation, but the matter is entirely in the discretion of the appellant, and I would not propose to obscure the boundary between liability and non-liability."

What are the particular circumstances in the matter before us? The District Court found the appellant liable, by law, to compensate the respondents. The appellant believed – and, it turned out, correctly – that by law he was not liable to compensate the respondents; but in consideration of the circumstances of the case he offered, to pay a certain sum lifnim mi-shurat hadin. The majority of this Court held that, in fact, the appellant's negligence was proved, but that the causal connection between this negligence and the death of the respondents' relative was not proved; we therefore absolved the appellant, under the law, from liability to compensate the respondents. Why should we now refrain from expressing our wish that the appellant, who started to perform the mitzvah [lit. "commandment," and in colloquial usage "good deed"] of li-fenim mi-shurat ha-din continue and complete what he began

These are the specific circumstances of the matter before us, and the Court should consider whether it is proper under the special circumstances of each case coming before it to express such a request. It need not be pointed out that appellants who think they can submit frivolous appeals will soon discover that not only will there be no suggestion by us that respondents do more than the law requires of them, but such appellants will also incur appropriate costs for conducting vexatious litigation against the respondents and for wasting the Court's time.

I do not share the apprehension that it would engender confusion in the law were we to express our view and make the parties aware that in certain circumstances one should act more generously than the law requires. Courts regularly make decisions based on considerations of justice, equity, good faith, public welfare, equal protection, and locus standi in matters on which property and life itself depend. They are not deterred by fear that these standards are vague or, Heaven forbid, that on occasion they may reach an unfair result. It should therefore be presumed that the Courts will find their way in this matter where law and morality intersect and will be capable of soundly weighing up, in light of the circumstances of each case, whether to request – and it would be only a request – that the injured party be compensated li-ferim mi-shurat ha-din.

If we are apprehensive about the danger of combining morality with law, we should be equally concerned with the manner in which the law itself is applied. My colleague points out that, in the case before us, the injury occurred in 1965 and the final judgment was given in 1979. How does the judgment look to the parties and to us when it is given – and to our sorrow this is not a rare occurrence – after the passage of two full sabbatical cycles [fourteen years], and we see [the injustice] yet are powerless to afford any remedy? Perhaps when parties recognize the value of acting lifnim mi-shurat ha-din in appropriate circumstances, there will even be a decrease in the innumerable legal actions for strictly legal relief, which are not always necessary, and thus the heavy burden on the courts may possibly be reduced somewhat (ibid. 811),

The gist of the aforementioned ruling was quoted again in a ruling rendered some time later (ca 842/79 Ness and Others u Golda and Others, pd 36(1) 204, by President Moshe Landau and Justices Menachem Elon and Dou Levin), per the comments of Justice Elon (220–221):

There is a rule in Jewish law that when someone injures another person, and due to a lack of the required causal connection between the tortfeasor's negligence and the act itself; he is legally exempt from damage payments, under certain circumstances he will still be obligated to pay in order to "meet his Heavenly obligation" (see, for example, tb, bk 55b). It is therefore appropriate for the court to inform the litigants accordingly [i.e., of their obligation to meet their heavenly obligation] (see Ra'avan, bk 55b).

This compensation for damage, whether total or partial, is likewise anchored in the great principle of li-fenim mi-shurat ha-din. The Sages, in fact, based that principle on a homily of the wisest of all men: 'That thou mayest walk in the way of goodmen, and keep the paths of the righteous' (Prov., 2:20)." (See tb. bm 83a; see Kitan v. Weiss; see Ha-Mishpat ha-Ivri, ibid.). As mentioned above, Golda's conduct provided no grounds to prevent their receiving the apartment back, for it had never left their ownership. It certainly provided no grounds to make them incur payment for the damage suffered by Davidman. Yet without a doubt, their own conduct as well played no small part, as detailed above, in making Davidman buy the apartment from Nes under his mistaken belief in good faith that Nes was the true owner. Under such circumstances, it would be appropriate for Golda to provide some compensation to Davidman for the damage caused him-his payment of £740,000 to Nes for the apartment. Ibis could be fulfilled by their returning to Davidman the entire sum that they had received from Nes for the apartment, which was now returned to them, including a sum of £50,000 lawfully owed them by Nes for having breached the contract with them. Under this strict law, C'Tolda is not bound by any such obligation. Rather, it is a request of them to act li-fenim mi-shurat ha-din. By such means they could "walk in the way of good men, and keep the paths of the righteous."

It would seem appropriate for this topic to emerge anew with the enactment of the Basic Laws of 1992, whose declared purpose is "to entrench within a Basic Law the values of the State of Israel as a Jewish and Democratic State." According to these laws, a prominent role is accorded to Jewish law within the values of the State of Israel as a Jewish State. A central issue in the process of combining Jewish and democratic values is the relationship between law and morality. According to these Basic Laws, Jewish values and the emphasis placed on them, precede the democratic values.

Under the law and in terms of propriety, in circumstances such as these, the Court should stress these values and incorporate them in its ruling, namely the duty stemming from these values to go beyond the letter of the law, and to compensate the victim for damages done to him.

For a detailed discussion of this, see the entry: *Law and Morality.

The Law in the State of Israel

The Civil Wrongs Ordinance (New Version) 1968 regulates the payment of compensation for damages. Section 76 provides that a victim is paid compensation "only in respect of such damage as would naturally arise in the usual course of events, and which directly arose from the defendant's civil wrong." This condition bears a certain resemblance to the position of Jewish law to the extent that it exempts the tortfeasor for indirectly caused damage (see *Gerama and Garme). On the other hand, the scope of liability in tort under section 76 is far broader than under Jewish law. Moreover, section 76 provides that awarding compensation is dependent upon the plaintiff specifying the damage he sustained.

Damages caused by traffic accidents are adjudicated under a special law – the Road Accident Victims (Compensation) Law, 5735 – 1975.

All of those laws will be interpreted in accordance with, and in light of, the values of the State of Israel as a Jewish and Democratic state, as elaborated in our discussion above.

[Menachem Elon (2^nd ed.)]

bibliography:

Gulak, Yesodei, 2 (1922), 14ff., 22ff., 31f., 211ff.; idem, Le-Ḥeker Toledot ha-Mishpat ha-Ivri bi-Tekufat ha-Talmud, 1 (Dinei Karka'ot) (1929), 28–30, 33n. 2, 34n. 2; idem, Toledot ha-Mishpat be-Yisrael bi-Tekufat ha-Talmud, 1 (Ha-Ḥiyyuv ve-Shi'bbudav) (1939), 43f., 95n.35, 109–11, 124, 141f., Herzog, Instit, 1 (1936), 211, 359; et, 1 (1951³), 81f.; 2 (1949), 167; 3 (1951), 42–50, 161f.; 7 (1956), 376–82; Z. Karl, in: Mazkeret Levi… Freund (1953), 29–32, 46–52; S. Albeck, Pesher Dinei ha-Nezikin ba-Talmud (1965). add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:129f., 258, 341f., 486f., 495, 532; 2:885; idem, Jewish Law (1994), I:145f., 302, 410f.; 2:591f, 602, 648; 3:1078f.; idem, Jewish Law (Cases and Materials) (1999), 50–52; M. Elon, B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah, 2 (1986), 293, 299; S. Albeck, Pesher Dinei Nezikin ba-Talmud (1965); A. Guulak, Yesodei, (1922). 2:14ff., 22ff., 31f., 211ff.; idem, Le-Ḥeker Toledot ha-Mishpat ha-Ivri bi-Tekufat ha-Talmud, 1 (Dinei Kurka'ot) (1929), 28–30, 33 n. 2, 34 n. 2; idem, Toledot ha-Mishpat be-Yisrael bi-Tekufat ha-Talmud, (Ha-Ḥiyyuv ve-Shibbudav) (1939), 1:43f., 95n. 35, 109; 2:124, 141f.; Herzog, Institutes, 1 (1936), 211, 359; et, 1 (1951¹), 81f; 2 (1949), 167; 3 (1951), 42–50, 161f.; 7 (1956), 376–82; Z. Karl, in: Mazkerethevi… Freund (1953), 29–32, 46–52; B. Lifshitz, E. Shohetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italya (1997), 204–7; A. Sheinfeld, Nezikin (Ḥok le-Yisrael, N. Rakover (ed.)), 5752.

DAMAGES

Monetary compensation that is awarded by a court in a civil action to an individual who has been injured through the wrongful conduct of another party.

Damages attempt to measure in financial terms the extent of harm a plaintiff has suffered because of a defendant's actions. Damages are distinguishable from costs, which are the expenses incurred as a result of bringing a lawsuit and which the court may order the losing party to pay. Damages also differ from the verdict, which is the final decision issued by a jury.

The purpose of damages is to restore an injured party to the position the party was in before being harmed. As a result, damages are generally regarded as remedial rather than preventive or punitive. However, punitive damages may be awarded for particular types of wrongful conduct. Before an individual can recover damages, the injury suffered must be one recognized by law as warranting redress, and must have actually been sustained by the individual.

The law recognizes three major categories of damages: compensatory damages, which are intended to restore what a plaintiff has lost as a result of a defendant's wrongful conduct; nominal damages, which consist of a small sum awarded to a plaintiff who has suffered no substantial loss or injury but has nevertheless experienced an invasion of rights; and punitive damages, which are awarded not to compensate a plaintiff for injury suffered but to penalize a defendant for particularly egregious, wrongful conduct. In specific situations, two other forms of damages may be awarded: treble and liquidated.

Compensatory Damages

With respect to compensatory damages, a defendant is liable to a plaintiff for all the natural and direct consequences of the defendant's wrongful act. Remote consequences of a defendant's act or omission cannot form the basis for an award of compensatory damages.

Consequential damages, a type of compensatory damages, may be awarded when the loss suffered by a plaintiff is not caused directly or immediately by the wrongful conduct of a defendant, but results from the defendant's action instead. For example, if a defendant carried a ladder and negligently walked into a plaintiff who was a professional model, injuring the plaintiff's face, the plaintiff could recover consequential damages for the loss of income resulting from the injury. These consequential damages are based on the resulting harm to the plaintiff's career. They are not based on the injury itself, which was the direct result of the defendant's conduct.

The measure of compensatory damages must be real and tangible, although it can be difficult to fix the amount with certainty, especially in cases involving claims such as pain and suffering or emotional distress. In assessing the amount of compensatory damages to be awarded, a trier of fact (the jury or, if no jury exists, the judge) must exercise good judgment and common sense, based on general experience and knowledge of economics and social affairs. Within these broad guidelines, the jury or judge has wide discretion to award damages in whatever amount is deemed appropriate, so long as the amount is supported by the evidence in the case.

A plaintiff can recover damages for a number of different injuries suffered as a result of another person's wrongful conduct. The plaintiff can recover for a physical impairment if it results directly from a harm caused by the defendant. The jury, in determining damages, considers the present as well as long-range effects of the disease or injury on the physical well-being of the plaintiff, who must demonstrate the disability with reasonable certainty. Compensatory damages can be awarded for mental impairment, such as a loss of memory or a reduction in intellectual capacity suffered as a result of a defendant's wrongful conduct.

A plaintiff may recover compensatory damages for both present and future physical pain and suffering. Compensation for future pain is permitted when there is a reasonable likelihood that the plaintiff will experience it; the plaintiff is not permitted to recover for future pain and suffering that is speculative. The jury has broad discretion to award damages for pain and suffering, and its judgment will be overturned only if it appears that the jury abused its discretion in reaching the decision.

Mental pain and suffering can be considered in assessing compensatory damages. Mental pain and suffering includes fright, nervousness, grief, emotional trauma, anxiety, humiliation, and indignity. Historically, a plaintiff could not recover damages for mental pain and suffering without an accompanying physical injury. Today, most jurisdictions have modified this rule, allowing recovery for mental anguish alone where the act precipitating the anguish was willful or intentional, or done with extreme care-lessness or recklessness. Ordinarily, mental distress brought on by sympathy for the injury of another will not warrant an award of damages, although some jurisdictions may allow recovery if the injury was caused by the willful or malicious conduct of the defendant. For instance, if an individual wrongfully and intentionally injures a child in the presence of the child's mother, and the mother suffers psychological trauma as a result, the defendant can be liable for the mother's mental suffering. In some jurisdictions, a bystander can recover damages for mental distress caused by observing an event in which another person negligently, but not intentionally, causes harm to a family member.

Compensatory damages of an economic nature may also be recovered by an injured party. A plaintiff may recover for loss of earnings resulting from an injury. The measure of lost earnings is the amount of money that the plaintiff might reasonably have earned by working in her or his profession during the time the plaintiff was incapacitated because of the injury. In the case of a permanent disability, this amount can be determined by calculating the earnings that the injured party actually lost and multiplying that figure out to the age of retirement—with adjustments. If the amount of earnings actually lost cannot be determined with certainty, as in the case of a salesperson paid by commission, the plaintiff's average earnings or general qualities and qualifications for the occupation in which she or he has been employed are considered. Evidence of past earnings can also be used to determine loss of future earnings. As a general rule, lost earnings that are speculative are not recoverable, although each case must be examined individually to determine whether damages can be established with reasonable certainty. For example, a plaintiff who bought a restaurant immediately before suffering an injury could not recover damages for the profits he might have made running it, because such profits would be speculative. A plaintiff who is unable to accept a promotion to another job because of an injury would stand a better chance of recovering damages for loss of earnings, because the amount lost could be established with more certainty.

Individuals injured by the wrongful conduct of another may also recover damages for impairment of earning capacity, so long as that impairment is a direct and foreseeable consequence of a disabling injury of a permanent or lingering nature. The amount of damages is determined by calculating the difference between the amount of money the injured person had the capacity to earn prior to the injury and the amount he or she is capable of earning after the injury, in view of his or her life expectancy.

Loss of profit is another element of compensatory damages, allowing an individual to recover if such a loss can be established with sufficient certainty and is a direct and probable result of the defendant's wrongful actions. Expected profits that are uncertain or contingent upon fluctuating conditions would not be recoverable, nor would they be awarded if no evidence existed from which they could be reasonably determined.

A plaintiff can recover all reasonable and necessary expenses brought about by an injury caused by the wrongful acts of a defendant. In a contract action, for example, the party who has been injured by another's breach can recover compensatory damages that include the reasonable expenses that result from reliance on the contract, such as the cost of transporting perishable goods wrongfully refused by the other contracting party. In other actions, expenses awarded as part of compensatory damages may include medical, nursing, and prescription drug costs; the costs of future medical treatment, if necessary; or the costs of restoring a damaged vehicle and of renting another vehicle while repairs are performed.

Interest can be awarded to compensate an injured party for money wrongfully withheld from her or him, as when an individual defaults on an obligation to pay money owed under a contract. Interest is ordinarily awarded from the date of default, which is set by the time stated in the contract for payment, the date a demand for payment is made, or the date the lawsuit alleging the breach of the contract is initiated.

Nominal Damages

Nominal damages are generally recoverable by a plaintiff who successfully establishes that he or she has suffered an injury caused by the wrongful conduct of a defendant, but cannot offer proof of a loss that can be compensated. For example, an injured plaintiff who proves that a defendant's actions caused the injury but fails to submit medical records to show the extent of the injury may be awarded only nominal damages. The amount awarded is generally a small, symbolic sum, such as one dollar, although in some jurisdictions it may equal the costs of bringing the lawsuit.

Punitive Damages

Punitive damages, also known as exemplary damages, may be awarded to a plaintiff in addition to compensatory damages when a defendant's conduct is particularly willful, wanton, malicious, vindictive, or oppressive. Punitive damages are awarded not as compensation, but to punish the wrongdoer and to act as a deterrent to others who might engage in similar conduct.

The amount of punitive damages to be awarded lies within the discretion of the trier of fact, which must consider the nature of the wrongdoer's behavior, the extent of the plain-tiff's loss or injury, and the degree to which the defendant's conduct is repugnant to a societal sense of justice and decency. An award of punitive damages will usually not be disturbed on the grounds that it is excessive, unless it can be shown that the jury or judge was influenced by prejudice, bias, passion, partiality, or corruption.

In the late twentieth century, the constitutionality of punitive damages has been considered in several U.S. Supreme Court decisions. In 1989, the Court held that large punitive damages awards did not violate the eighth amendment prohibition against the imposition of excessive fines (Browning-Ferris Industries of Vermont v. Kelco Disposal, 492 U.S. 257, 109 S. Ct. 2909, 106 L. Ed. 2d 219). Later, in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991), the Court held that unlimited jury discretion in awarding punitive damages is not "so inherently unfair" as to be unconstitutional under the due process clause of the fourteenth amendment to the U.S. Constitution. And in TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993), the Court ruled that a punitive damages award that was 526 times the compensatory award did not violate due process. Both Haslip and TXO Production disappointed observers who hoped that the Court would place limits on large and increasingly common punitive damages awards. In a 1994 decision, the Court did strike down an amendment to the Oregon Constitution that prohibited judicial review of punitive damages awards, on the ground that it violated due process (Honda Motor Co. v. Oberg, 512 U.S. 415, 114 S. Ct. 2331, 129 L. Ed. 2d 336).

In a jury proceeding, the court may review the award, although the amount of damages to be awarded is an issue for the jury. If the court determines that the verdict is excessive in view of the particular circumstances of the case, it can order remittitur, which is a procedural process in which the jury verdict is reduced. The opposite process, known as additur, occurs when the court deems the jury's award of damages to be inadequate and orders the defendant to pay a greater sum. Both remittitur and additur are used at the discretion of the trial judge, and are designed to remedy a blatantly inaccurate damages award by the jury without the necessity of a new trial or an appeal.

Treble Damages

In some situations, where provided by statute, treble damages may be awarded. In such situations, a statute will authorize a judge to multiply the amount of monetary damages awarded by a jury by three, and to order that a plaintiff receive the tripled amount. The clayton act of 1914 (15 U.S.C.A. §§ 12 et seq.), for example, directs that treble damages be awarded for violations of federal antitrust laws.

Liquidated Damages

liquidated damages constitute compensation agreed upon by the parties entering into a contract, to be paid by a party who breaches the contract to a nonbreaching party. Liquidated damages may be used when it would be difficult to prove the actual harm or loss caused by a breach. The amount of liquidated damages must represent a reasonable estimate of the actual damages that a breach would cause. A contract term fixing unreasonably large or disproportionate liquidated damages may be void because it constitutes a penalty, or punishment for default. Furthermore, if it appears that the parties have made no attempt to calculate the amount of actual damages that might be sustained in the event of a breach, a liquidated damages provision will be deemed unenforceable. In determining whether a particular contract provision constitutes liquidated damages or an unenforceable penalty, a court will look to the intention of the parties, even if the terms liquidated damages and penalty are specifically used and defined in the contract.

Appellate Review of Damages

When reviewing a trial court's award of damages, an appellate court generally examines all of the evidence from the trial to determine whether the evidence supports the award. When reviewing awards for compensatory damages, an appellate court determines from the lower court's record whether the trial judge abused his or her discretion in allowing a jury's damage award to stand or in making his or her own damage award, called a bench award. A bench award by a judge is typically subject to closer scrutiny than an award by a jury.

An appellate court may determine that a damage award is excessive or inadequate. If the court of appeals determines that the damages are excessive or inadequate, and can determine the proper amount with reasonable certainty, the court may adjust the award so that it corresponds with the evidence. One common method for altering an award is through the use of remittitur, whereby the judge directs the plaintiff either to accept a lower award or face a new trial. On the other hand, if the appellate court cannot determine the proper amount of the award based upon the evidence, the court may order a new trial. A court of appeals will also review a trial court's decision whether to admit or to exclude evidence that supports the damage award, such as the decision whether to admit or exclude testimony regarding scientific evidence. Appellate courts typically review the trial court's decision with respect to admission or exclusion of evidence under the abuse of discretion standard.

Courts review awards of punitive damages differently than other types of damage awards. Several federal courts of appeals are engaged in an ongoing struggle over what standard of review should be applied to punitive damages at the appellate court level. In Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S. Ct. 1678, 149 L. Ed. 2d 674 (2001), the U.S. Supreme Court ruled that appellate courts must conduct de novo review rather than apply an abuse of discretion standards. This ruling means that federal appellate courts have great freedom to review and reduce punitive damages based on previous U.S. Supreme Court standards. The decision is one more example of the Court expressing its desire to control excessive punitive damage awards.

Cooper Industries, Inc. involved a suit for trademark infringement, where Cooper Industries was accused of using photographs of a knife manufactured by Leatherman Tool Group. A jury awarded Leatherman $50,000 in general damages and $4.5 million in punitive damages. On appeal, the U.S. Court of Appeals for the Ninth Circuit upheld the trial court, basing its analysis on the abuse of discretion standard. This standard is very deferential to the trial court's actions, allowing the appeals courts to overturn a decision only if the trial judge clearly abused his or her authority. By comparison, de novo review empowers the appeals court to review all of the evidence on punitive damages without regard to the trial court's decision.

The U.S. Supreme Court agreed to hear Cooper's appeal to resolve the division among the federal circuits over the appropriate standard of review for punitive damages. The Court, in an 8–1 decision, determined that the federal courts should apply de novo review. Justice john paul stevens, writing for the majority, concluded that the nature of punitive damages demanded that appeals courts conduct a fresh inquiry. He noted the similarities of punitive damages to criminal fines and cited various criminal cases that addressed the proportionality of sentences that relied on de novo review. Moreover, Stevens rejected the idea that when a jury awards punitive damages, it makes a finding of fact that could not be disturbed by an appeals court unless it was clearly erroneous.

further readings

Gibeaut, John. 2003. "Pruning Punitives: High Court Stresses Guidelines for Deciding Damages." ABA Journal 89 (June).

Kagehiro, Dorothy K., and Robert D. Minick. 2002. "How Juries Determine Damages Awards." For the Defense 44 (July).

Reis, John W. 2002. "Measure of Damages in Property Loss Cases." Florida Bar Journal 76 (October).

Shaw, Robert Ward. 2003. "Punitive Damages in Medical Malpractice: an Economic Evaluation." North Carolina Law Review 81 (September).

Damages

Monetary compensation that is awarded by a court in a civil action to an individual who has been injured through the wrongful conduct of another party.

Christopher v. Florida

When a jury awards a plaintiff damages for injuries caused by the defendant, the defendant has the right to file post-trial motions that ask the judge to either ignore the jury verdict and declare that the defendant was not liable for the injuries, grant the defendant a new trial, or reduce the amount of the damages using a procedure called remittitur. It is rare that a judge will find the defendant not liable by granting a judgment as a matter of law (JMOL), for the judge must find that there were no facts to justify liability. It is more common to give the plaintiff the option of receiving a lower amount of damages (remittitur) or retrying the case to a new jury. Typically, the plaintiff accepts the reduced damages award. In Christopher v. Florida, 449 F.3d 1360 (11th Cir.2006), the Eleventh Circuit Court of Appeals ruled that a trial judge had improperly issued a JMOL and that both defendants must receive a new trial. The appeals court buttressed this decision by concluding that the "gross excessiveness" of the jury awards cast doubt on the validity of the entire verdict.

Kenrick Christopher sued two Florida Highway Patrol officers, Barry Tierney and Jose Hernandez, for a severe brain injury he received when the officers conducted a drug raid pursuant to a search warrant naming the owner of the house, but not Christopher. At trial Christopher alleged that he was lying on his bed when two masked man armed with guns burst into his room. He was ordered to get off the bed and when he did not immediately comply he was pushed to the floor. He landed face down and felt an officer put his knee into his back and pull his right arm back until he felt his shoulder snap. When Christopher asked what the officer was doing he was told to shut up and then hit in the back of his head with a sharp object. He felt a warm tingling and could not stand and walk out of the house when ordered by the two officers. An ambulance was called and during the ride to the hospital Christopher told the EMT that had been assaulted by police. Doctors discovered that a blood vessel had ruptured in his brain and performed surgery. Christopher spent three weeks in the hospital and was permanently disabled.

Officers Tierney and Gonzalez offered different accounts of what went on in the room with Christopher. Tierney claimed that a second man was in the room and that he scuffled with him and not Christopher. (No second man was ever charged in the case.) Tierney said he never touched Christopher and did not know what Gonzalez said or did while in the room. Gonzalez testified that he did not recall touching Christopher and had no recollection who handcuffed Christopher or what Tierney said or did while in the room.

Doctors called as expert witnesses disagreed as to what caused the brain trauma. Christopher's doctor said he had been born with a brain malformation that made vessels susceptible to rupture, but concluded the injury was caused by a blow to the back of the head. The defendants' doctor testified that the injury was most likely caused by heightened blood pressure attributable to surprise or apprehension. Another expert for Christopher stated that the plaintiff's memory was not intact when he arrived at the hospital and that his memories were likely reconstructed by others. The judge, before trial, dismissed all of Christopher's excessive force claims except the alleged blow to the head. Defendants would only be liable if an officer intentionally hit Christopher. The jury found both officers liable and awarded Christopher $6.725 million in damages. The officers filed post-trial motions asking either for a new trial or a JMOL. The judge granted Hernandez a new trial and granted Tierney a JMOL.

The Eleventh Circuit Court of Appeals, in a 2-1 vote, ruled that the trial court should not have granted Tierney a JOML. Instead, the appeals court concluded that both Hernandez and Tierney were entitled to a new trial on both the issue of liability and the amount of damages. Judge J.L. Edmondson, writing for the majority, stated that the JOML was unwarranted because the jury was entitled to weigh the highly contradictory statements of the plaintiff and Tierney. As to the need for a new trial, the court focused both on the conduct of the plaintiff's lawyer and the size of the damages awarded by the jury. In his closing argument, Christopher's lawyer lamented that the case had been reduced to whether the defendants had intentionally inflicted a blow to his client's head, rather than the broader issue of excessive force. Though defense counsel did not object to this statement, Judge Edmondson believed this and other statements were a "clear invitation to the jury to hold Defendants liable based on conduct other than an intentional blow to head."

The court also examined the jury award. Edmondson believed the award was "manifestly excessive and swayed by passion." Christopher received 40 percent more in future medical expenses than the highest number given by his expert witness and twice as much in past, documented medical expenses. This, along with the pain-and-suffering award was clearly improper. Therefore, both defendants were entitled to a new trial.

Judge Rosemary Barkett, in a dissenting opinion, agreed that the defendant's were entitled to a new trial, but only on the question of damages. The closing argument by Christopher's lawyer was not improper and the failure of defense counsel to object foreclosed the appeals court from considering this issue. Therefore, the new trial should have been limited to determining the amount of damages.

dam·age / ˈdamij/ • n. 1. physical harm caused to something in such a way as to impair its value, usefulness, or normal function. ∎  unwelcome and detrimental effects: damage to his reputation.2. (damages) money claimed or awarded in compensation for a loss or injury.• v. [tr.] inflict physical harm on (something) so as to impair its value, usefulness, or normal function: the car was badly damaged [as adj.] (damaging) heat can be damaging to color film. ∎  have a detrimental effect on: the scandal could damage his career.PHRASES: what's the damage? inf., humorous used to ask the cost of something.DERIVATIVES: dam·ag·ing·ly adv.

DAMAGES

From the earliest days of common law, courts have ordered the payment of money ("damages") to compensate for legal wrongs. Two related but separable lines of cases shape the availability of damages for violations of constitutional rights. One line of cases involves inyterpretation of section 1983, title 42, united states code, and its express provision for "an action at law" to redress deprivations of constitutional rights by state officials. Since the revival of section 1983 in monroe v. pape (1961), it has been understood that damages are available to compensate for sonstitutional violations by state officials. carey v. piphus (1978) reaffirmed this understanding, but held that substantial damages could not be recovered for procedural due process violations without proof of injury. Smith v. Wade (1983) clarified the standards governing awards of punitive damages under section 1983.

In actions against federal officials, which are not governed by section 1983, the Court, in bivens v. six unknown named agants of the federal bureau of narcotics (1971), inferred a damages action based on the fourth amendment. Later cases, such as davis v. passman (1979), extended the implied constitutional damages action to other constitutional provisions. The Bivens line of cases may be viewed as an extension of ex parte young (1908) and other decisions that allowed actions for injunctive relief to be based directly on the Constitution.

Theodore Eisenberg
(1986)

Bibliography

Newman, Jon O. 1978 Suing the Lawbreakers: Proposals to Strngthen the Section 1983 Damages Remedy for Law Enforcers' Misconduct. Yale Law Journal 87:447–467.