Compensatory damages in personal injury actions are those damages awarded to a person as compensation, indemnity or restitution for the harm sustained. Restatement (Second) of Torts § 903. These compensatory damages include recovery for all past, present and future harm legally caused by the defendant. Restatement (Second) of Torts § 910. See also J.L. Lankford and D.A. Black, The Law of Negligence in Arizona, § 13.2, pp. 324-5 (Michie: 1992).
A plaintiff has the burden of proving damages. Restatement (Second) of Torts § 912; Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 446 P.2d 458, 464 (1968). Thus, if a plaintiff's damages are speculative, remote or uncertain, they may not form the basis of a damage award. Id.
A plaintiff has a duty to establish both, the fact that damages were sustained and the amount of such damages. Id.; Lewin v. Miller, Wagner & Company, Ltd., 151 Ariz. 29, 34, 725 P.2d 736, 741 (App. 1986). Proof that damages were sustained requires a higher showing than proof as to the amount of damages. Coury, 103 Ariz. at 521, 446 P.2d at 464; Gilmore v. Cohen, 95 Ariz. 34, 386 P.2d 81 (1963). To establish that he or she has sustained damages, a plaintiff must prove with a reasonable degree of certainty that his/her damages do in fact exist. Lewin, 151 Ariz. at 34, 725 P.2d at 741; Coury, 103 Ariz. at 521, 446 P.2d at 464. Speculation, guessing or estimates as to the existence of damages is not sufficient to meet the showing of a reasonable degree of certainty. See, id.
Damages for bodily injury, including pain and suffering, may be awarded without proof of an actual monetary loss. Restatement (Second) of Torts § 905. However, recovery for such damages as lost wages or reduced earning capacity require actual proof of monetary loss. Id., 906.
Types of Compensatory Damages Recoverable in Arizona
In Arizona, the current recommended jury instructions list the elements of damages that may be recovered in a personal injury action. A jury may award an amount to compensate a plaintiff for the following:
- The nature, extent and duration of the injury.
- The pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced and reasonably probable to be experienced in the future, as a result of the injury.
- Reasonable expenses of necessary medical care, treatment, and services rendered and reasonably probable to be incurred in the future.
- Lost earnings to date, and any decrease in earning power or capacity in the future.
- Loss of love, care, affection, companionship and other pleasures of the [marital] [family] relationship.
RECOMMENDED ARIZONA JURY INSTRUCTIONS (Civil), 2d Edition, Personal Injury Damages 1 ("RAJI (Civil) 2d").
The following section of this article will discuss and give examples of evidence bearing on these damages. Economic damages, i.e., lost earnings and decrease in earning power are addressed in a separate article on this site.
Physical Injury: The Nature, Extent, and Duration of the Injury
A plaintiff is entitled to compensation for all physical injuries caused by the defendant. Restatement (Second) of Torts § 905A. Compensation for physical injuries includes an award for both temporary and permanent injuries. City of Phoenix v. Mullen, 54 Ariz. 83, 88-89, 174 P.2d 422 (1946). The determination of the amount of damages is left to the jury's discretion. Meyer v. Ricklick, 99 Ariz. 355, 358, 409 P.2d 280 (1965). Where the plaintiff's injuries are permanent, mortality or life expectancy tables are generally relevant to the determination of the amount of damages. Coppinger v. Broderick, 37 Ariz. 473, 295 P. 780 (1931).
A plaintiff is not entitled to compensation for any physical injury that pre-existed the injury caused by the defendant. Sweet Milk Company v. Stanfield, 353 F.2d 811 (9th Cir. 1965); Jimenez v. Starkey, 85 Ariz. 194, 335 P.2d 85 (1959). However, recovery is allowed for the aggravation of any pre-existing physical condition. Cox v. Enloe, 50 Ariz. 201, 70 P.2d 331 (1937) A plaintiff also is entitled to all damages caused by a defendant's negligence even if the injuries are due to an unusual susceptibility to injury on the part of the plaintiff. Allen v. Devereaux, 5 Ariz.App. 323, 426 P.2d 659 (1967); Jordan v. Atchison, Topeka & Santa Fe Ry. Co., 934 F.2d 225 (9th Cir. 1991).
The following are specific applications of some of the general rules discussed above.
- A comatose plaintiff was allowed to attempt to prove his damages by appearing in front of the jury. The court held that the plaintiff was entitled to prove his damages by the most direct evidence available, which was his own physical condition.
- The age and life expectancy of an injured person in a case of injuries of permanent character are competent and relevant evidence on the issue of the measure of damages. Coppinger v. Broderick, 37 Ariz. 473, 295 P. 780 (1931).
- In assessing damages for personal injury, a jury should be permitted to consider all relevant circumstances including the age, sex and physical condition of a plaintiff both before and after an injury. Yuma Furniture Co. v. Rehwinkel, 8 Ariz.App. 576, 448 P.2d 420 (1968).
- An action arising out of an automobile collision, the jury could consider both aggravation and recurrent of plaintiff's previously existing tubercular condition as bearing on her damages. Cox v. Enloe, 50 Ariz. 201, 70 P.2d 331 (1937).
- The burden rests on plaintiff to establish which injuries he suffered in an automobile accident. Plaintiff failed to meet this burden of proof where the jury was unable to separate the injuries sustained by plaintiff in the subject automobile accident and injuries sustained by plaintiff on the preceding day. As a result, defendant could not be held liable for any of plaintiff's injuries. Sweet Milk Company v. Stanfield, 353 F.2d 811 (9th Cir. 1965).
- Evidence was sufficient only to sustain a jury's finding that a plaintiff suffered minor injuries as a result of an auto accident where evidence showed that plaintiff had been in an earlier automobile accident, that plaintiff complained of residual injury attributable to the earlier accident, and that the testimony of plaintiff as to her injuries was controverted by a number of witnesses and medical records. Snyder v. Beers, 1 Ariz.App 497, 405 P.2d 288 (1965).
- Medical testimony is not required to prove permanency of a plaintiff's injuries if there is other evidence from which a jury may infer permanency. Thus, in a case where plaintiff's treating doctor testified that plaintiff's pain might be permanent or might end in a year, but plaintiff testified she still suffered from backaches, limped and could no longer lift children, the jury could properly infer that plaintiff suffered a permanent injury. Hirsh v. Manley, 81 Ariz. 94, 300 P.2d 588 (1956).
- The court held that the evidence was sufficient to support a verdict of permanent injuries where evidence showed the plaintiff suffered injuries of a gashed face, broken nose and leg, and burns on leg, arm and hand. S.A. Gerrard Company v. Couch, 43 Ariz. 57, 29 P.2d 151 (1934).
- In view of the facts that plaintiff suffered severe head injuries in the accident, that she had suffered from dizziness prior to the accident but had experienced no symptoms of dizziness for at least four years prior to the date of the accident, and that while in a hospital immediately after the accident symptoms of dizziness recurred, there was sufficient evidence to show a causal connection between the accident and the plaintiff's dizziness. However, based upon plaintiff's trouble with dizziness prior to the accident, it was proper to instruct the jury that plaintiff's dizziness may have been caused in whole or in part by the aggravation of a pre-existing condition. Montague v. Deagle, 11 Ariz.App. 106, 462 P.2d 403 (1969).
- Where there was conflicting evidence as to the cause of plaintiff's injury, it was proper to give an instruction to the jury that where there is more than one cause of equal probability of an injury and only one cause is attributable to defendant then plaintiff has not proved his case against the defendant. Snethen v. Gomez, 6 Ariz.App. 366, 432 P.2d 914 (1967).
- In certain situations, even when there is no testimony from a doctor that a plaintiff has suffered a permanent injury, the nature of the plaintiff's injury may warrant a jury instruction as to the permanency of plaintiff's injuries based solely on the plaintiff's subjective testimony of ongoing, continuing pain. Charron v. Kernan, 8 Ariz.App. 488, 447P.2d 580 (1968).
Pain and Suffering
When a plaintiff suffers a physical injury, he also may seek damages for past and future pain and suffering. Myers v. Rollette, 103 Ariz. 225, 439 P.2d 497 (1968), appeal after remand, 13 Ariz.App. 72, 474 P.2d 196 (1970). Although damages for pain and suffering must have a basis in the evidence submitted, the amount of the award is within the discretion of the jury. Pacific Greyhound Lines v. Rumeh, 178 F.2d 652 (9th Cir. 1949). However, damages for future pain and suffering cannot be based upon pure speculation. Allen, 5 Ariz.App. 323, 426 P.2d 659.
The following cases provide guidance on proving damages for pain and suffering:
- Damages by reason of physical pain and suffering must have a basis in the evidence actually submitted and cannot be arrived at by mere conjecture or speculation. Coppinger v. Broderick 37 Ariz. 473, 295 P. 780 (1931).
- The defendant was not entitled to a jury instruction that would have told the jury that any award for personal injuries to plaintiff would not be subject to federal income taxes. Young v. Environmental Air Products, 136 Ariz. 206, 665 P.2d 88, affirmed as modified, 136 Ariz. 158, 665 P.2d 40 (1983).
- Where it was a reasonable inference that the injury to plaintiff's eye caused pain and suffering, a jury instruction as to plaintiff's right to a reasonable award for pain and suffering was proper. Atchison, T.& S.F. Ry. Co. v. Gutierrez, 30 Ariz. 491, 249 P.2d 66 (1926).
- The court properly instructed the jury in a rear-end automobile collision case that damages could be allowed for the future consequences of the plaintiff's alleged injury, providing that such damages were certain to ensue, where there was evidence showing that plaintiff would continue to experience pain and suffering as a result of the accident. Newman v. Piazza, 6 Ariz. App. 396, 433 P.2d 47 (1967).
- Evidence supported giving an instruction to the jury that included items for plaintiff's future pain and suffering where: (a) both plaintiff and her husband testified that since the automobile accident plaintiff was less active because of back pain; (b) plaintiff could not interact with grandchildren as she used to; (c) plaintiff required assistance with household tasks; (d) plaintiff continued to suffer from headaches, numbness in thumb, and could not sit for prolonged periods without suffering low-back pain; (e) a chiropractor and registered physical therapist testified that the accident had intensified plaintiff's prior back condition and that it would remain permanently impaired. Willett v. Ciszek Olson, 170 Ariz. 230, 823 P.2d 97 (App. 1991).
- Evidence in a personal injury action was insufficient to establish that a collision between plaintiff's automobile and a bus was a substantial factor in causing plaintiff's alleged mental illness which allegedly impelled her, while in a depressed state, to make an unsuccessful suicide attempt. The court held that the requested jury instruction of the defendant bus company that no amount of damages should be awarded for the injuries plaintiff sustained in her suicide attempt should have been given. Tucson Rapid Transit Co. v. Tocci, 3 Ariz.App. 330, 414 P.2d 179 (1966).
Past and Future Medical Expenses
A plaintiff is entitled to damages for both past and future medical expenses. Greco v. Manolakos, 24 Ariz. App. 490 539 P.2d 964 (1975). Plaintiffs generally rely on medical records and bills to establish past medical expenses. Before a plaintiff can obtain damages for past medical expenses, however, he or she must establish that the charges were reasonable. Lankford and Blaze, Law of Negligence, at § 13.2(2)(c), p. 329.
To obtain damages for future medical expenses, plaintiff must show: 1) there is a reasonable probability that the future medical care will be needed and given to treat plaintiff's injury and 2) the reasonable value of these future medical expenses. Saide v. Stanton, 135 Ariz. 76, 659 P.2d 35 (1983); West v. Sundance Development Co., 169 Ariz. 579, 821 P.2d 240 (App. 1991). See also Lankford and Blaze, Law of Negligence, § 13.2(2)(c), p. 330.
Although expert medical testimony is usually needed to establish the necessity for future medical treatment, an expert need not testify that the care will positively be needed. Lankford and Blaze, id. The jury has the discretion to decide whether future medical treatment will be needed "as long as the evidence generally will support a finding that future treatments are reasonably probable." Saide, 135 Ariz. 76, 659 P.2d 35.
It is unclear in Arizona whether or not a jury may consider evidence of future medical expenses based on testimony that such treatment is "possible" but not probable. One leading commentator in this area has noted that in Saide the Arizona Supreme Court suggested "that such testimony might provide a sufficient basis for an award of future medical expenses." Lankford and Blaze, Law of Negligence, § 13.2(2)(c), p. 330 (citing Saide), 135 Ariz. at 79 n. 1, 659 P.2d at 38 n. 1). Lankford and Blaze also state that "if such evidence is based on a significant possibility, the court's suggestion [Saide] has merit because a plaintiff may often be unable to present evidence relating to future events sufficient to meet the higher reasonable probability standard. The defendant's opportunity to present contrary evidence provides a check on potential speculation and conjecture by the jury." Id.
The following are specific applications of some of the rules set forth above:
- Mere fact that a physical injury condition is permanent does not alone constitute a sufficient basis for an award of future medical expenses. There must be some evidence of a probable need for and the nature of the future treatment plus evidence of the cost of that treatment. Saide v. Stanton, 135 Ariz. 76, 659 P.2d 35 (1983).
- Damages for medical expenses incurred by a plaintiff as a result of an injury, being susceptible of proof (i.e., through copies of hospital and doctor's bills), are allowed only where they may be ascertained by the jury with reasonable accuracy from the evidence. White v. Breedon, 65 Ariz. 117, 175 P.2d 201 (1946).
- Assuming that future medical costs could be recovered by plaintiffs for their exposure to asbestos (i.e., for increased medical surveillance to detect early signs of asbestosis and/or lung cancer), absent any proof of current physical harm to plaintiffs, the plaintiff employees failed to establish that such future medical expenses would be reasonably necessary because the medical testimony submitted on their behalf did not suggest that the plaintiffs would require increased medical surveillance. DeStories v. City of Phoenix, 154 Ariz. 604 744 P.2d 705 (App. 1987).
- Medical expenses regarding a specific surgical procedure may be submitted to the jury if the evidence presented and its reasonable inferences would support a finding that it is reasonably probable that the surgery will be performed in the future and where the amount of such future damages has been established with reasonable certainty. West v. Sundance Development Co., 169 Ariz. 579, 821 P.2d 240 (App. 1991).
- Physician's testimony that is was likely that plaintiff would require treatment for his knee injury in the years to come and that the plaintiff would continue to have "episodes of the knee giving out" warranted instruction to the jury on damages regarding plaintiff's future medical expenses. Besch v. Triplett, 23 Ariz.App. 301, 532 P.2d 876 (1975).
- It was improper to instruct the jury as to plaintiff's alleged future medical expenses in the absence of evidence as to how many medical treatments might reasonably be required by plaintiff or for how long these treatments probably would be necessary. Hirsh v. Manley, 81 Ariz. 94, 300 P.2d 588 (1956).
- Evidence was not sufficient to establish that it was reasonably probable that future surgery would be necessary to relieve plaintiff's condition, where such surgery had side effects, plaintiff's treating physician felt the surgery was not warranted, and there was no testimony that plaintiff's condition would or might increase or worsen in the future. As a result, the evidence did not justify an instruction that was given to the jury on he issue of plaintiff's future medical expenses for the surgery. Griffen v. Stevenson, 1 Ariz.App. 311, 402 P.2d 432 (1965).
- Testimony by dentist as to the necessity for future preventative dental care, where particular teeth injured by a plaintiff in an auto accident were the weakest teeth in the human mouth and the most susceptible to injury and infection, and these teeth were especially susceptible to injury and infection after the type of traumatic injury suffered by the plaintiff, was sufficient to permit the jury to find that there was a reasonable probability that future dental treatment would be needed, and thereby warranted an instruction to the jury on the issue of future medical expenses. Saide v. Stanton, 135 Ariz. 76, 659 P.2d 35 (1983).
- Evidence in a personal injury action supported instructing the jury on future medical expenses in light of doctor's testimony that continuing neck pain of plaintiff could only be relieved by a C4-C5 fusion such as had been previously done at C5-C6, and with the cost of the previous identical procedure was in evidence. West v. Sundance Development Co., 169 Ariz. 579, 821 P.2d 240 (App. 1991).