Once the breach of the duty is established, the only requirement left is to determine if the Plaintiff was harmed by the Defendant’s negligent act and, if so, compensate the victim. Generally, in determining damages the Defendant’s culpability is of no consequence, unless punitive damages are assigned.
An important step in compensating the victim is determining if the mythical “reasonable person” would have been harmed by the negligent act. If not, the claim dies here. If so, then the victim must be compensated. Damages are said to be compensatory in nature and are meant to address the Plaintiff’s losses and make him whole. The types of damages regularly awarded are the following:
Special damages are quantifiable dollar losses suffered from the date of defendant’s negligent act up to a specified time. For example, as a result of a car accident, a plaintiff may have damaged his vehicle rendering him unable to get to work for a month. In that example, a plaintiff may recover for lost wages due to injury and loss of a vehicle and the medical bills associated with treatment of his injuries. In addition, the plaintiff may be compensated for the loss of his property resulting from the accident, including his vehicle and any and all items damaged as a result of the accident.
Under certain circumstances, a plaintiff may be compensated for lost future earnings where an accident rendered him incapable of continuing on a certain career path. For example, in a toxic mold case, where the existence of the mold destroyed an attorney’s memory such that he could no longer practice law, that attorney may be compensated for the loss of future earnings resulting from his inability to practice law.
Additionally, where a product causes some permanent or chronic condition that requires continuing medical care, that person may be compensated for the future costs of medical treatment. However, though such damages are available to plaintiffs, they are never easily proved. In almost all circumstances, these damages require experts that can give an opinion as to the extent of future loss. For example, only a medical expert steeped in the cost of health care can accurately gauge how much certain chronic conditions will cost a plaintiff for his continuing care. Similarly, only an economist or industrial expert can competently testify to loss of potential earnings in any given field.
In addition, pursuant to the “collateral source rule”, that is, the evidentiary rule that prohibits the admission of evidence that a victim’s damages were or will be compensated from some source other than the damages awarded against the defendant, medical bills and other special damages covered by an insurer are still compensable despite the fact that that bill was paid from a collateral source.
General damages are damages that are not quantified in monetary terms. Primarily, this type of damage addresses the victims pain and suffering. Generally, pain and suffering may result from a loss of enjoyment of life, such as when an avid mountain biker loses both legs and can no longer ride a bike. Another example is where a spouse is left in a vegetative state and the other spouse loses his/her care and comfort.
Punitive damages require intentional malicious, oppressive or fraudulent conduct and are therefore generally not available under a negligence theory, unless the Plaintiff can show gross negligence or reckless indifference upon which punitive damages may be awarded to punish the tortfeasor. However, where the complained of conduct involves an intentional tort, such as false imprisonment, malicious prosecution, battery, and the like, punitive damages are available to a Plaintiff.
In Nevada, a plaintiff may recover punitive damages when evidence demonstrates that the defendant has acted with “malice, express or implied.” NRS 42.005(1). “`Malice, express or implied,’ means conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others.” NRS 42.001(3). A defendant has a “[c]onscious disregard” of a person’s rights and safety when he or she knows of “the probable harmful consequences of a wrongful act and a willful and deliberate failure to act to avoid those consequences.” NRS 42.001(1). In other words, under NRS 42.001(1), to justify punitive damages, the defendant’s conduct must have exceeded “mere recklessness or gross negligence.”