Factors Affecting Damages Awards

Nature of injury

It stands to reason that the most important factor that will affect the amount of damages that you can recover is the nature of the injury sustained. The more serious an injury is, the higher the value of the claim. If you are suffer from a soft tissue injury, such as with whiplash or neck strain, you will not recover as much as someone who is injured more seriously, involving ligament tears, bone fractures, and nerve damage. Injuries such as whiplash and back strains are known as soft tissue injuries because they involve muscle. Although the condition can be painful, it’s usually not permanent. Moreover, there is limited ability to detect this condition through medical examination, whereas bone and ligament damage is easily seen on a standard x-ray. serious injuries that can be detected with a medical examination typically receive much higher damage awards. If you have medical documentation to prove your damages, you will usually receive more compensation for your injuries.

In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.

Degree of defendant’s liability

As noted in our materials on negligence, if the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. There will no reduction in the award based on the defendant not being entirely at fault. For example, if you are a passenger sleeping in a car hit by a drunk driver, you are not at fault for your injury, while the defendant is completely at fault. The only issue at trial will normally be how much your damages are worth. However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease. At Law Office Of Phillips and Allen P.A., we will vigorously contest any claim that you are partially at fault for causing an accident where appropriate. Using our experience and the services of expert accident reconstructionists and investigators, we will focus on proving the fault of the defendant so that we can obtain the maximum possible settlement or verdict for you.

Contributory negligence

If a plaintiff is found partially at fault for an accident, he or she will have lost his or her case altogether. In Maryland, contributory negligence is used to calculate the degree of the plaintiff’s negligence and bar recovery for damages altogether. A plaintiff who fails to observe ordinary care for his own safety is contributorily negligent and is barred from all recovery, regardless of the defendant’s primary negligence. Harrison v. Montgomery County Bd. of Education, 295 Md. 442 (1983).

Example: Suppose a jury awards you $100,000 in damages after you fell down the stairs, however, it finds you 30 percent at fault for your injuries because you did not hold on to the hand rail. You would be barred from recovery because you were contributorily negligent in not exercising an ordinary duty of care when descending the stairs.

Plaintiff’s and Defendant’s credibility

Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you accurately describe the events of the accident? Can you describe your injuries in detail, and in a convincing manner? Are you intelligent and well spoken? Would you make a good witness on your own behalf?

The term used to describe these intangible factors is “jury appeal.” Remember that the jury members will judge both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages, and if so, how much. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.

The credibility and perception of the defendant will also affect the amount of money you receive. If the defendant in a car accident case is a 20-year-old driving a hot rod, jurors aren’t likely to view the defendant favorably. This can also help a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the “holes” in defendant’s version of the accident will damage the defendant’s credibility, resulting in higher damage awards in most cases.

Plaintiff’s age

Age plays a role in determining the value of a plaintiff’s claim, particularly where permanency of injury is alleged. If you are a 20-year-old woman who lost her leg in an accident, then a jury will award a higher amount of damages than if you are a 80-year-old woman with the same injury. The basis for this is that the younger woman has more future pain and suffering, loss of enjoyment of life, loss of income, and mental anguish ahead of her than does the older woman.

Witness testimony

The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. It is helpful to have credible witnesses who can clearly describe your condition before the accident to the jury, so as to assist them in understanding the change in your condition post-accident. In addition, expert witnesses often play a critical role in the outcome of any personal injury trial. In cases where there are “dueling experts,” the background and professional experience of your expert is critical to establishing his or her influence over the jury.

Assumption of Risk

One common example of contributory negligence is “assumption of risk.” If a person undertakes an action while aware of the risks associated with performing that action, there are circumstances where this assumption of the risk will be considered contributory negligence. Then, the person’s actions become contributorily negligent when his knowledge of specific hazards that aren’t normally present should create a standard of care that he must observe to be non-negligent.

Example: A plaintiff was unloading a truck near charged high voltage wires when he came in contact with the wires and was electrocuted. He sued the utility company for gross negligence in the placement of the wires. The jury found that the plaintiff was contributorily negligent because he failed to exercise an ordinary standard of care in the presence of the wires he knew to be charged, under the assumption of risk doctrine. Liscombe v. Potomac Edison Co., 303 Md. 619 (1985)

Last Clear Chance

There are some limitations to the defense of contributory negligence. One of these is the “last clear chance” doctrine. If, in an accident that the plaintiff contributed to negligently, the defendant had an opportunity to prevent the harm just before the accident and the plaintiff did not have such an opportunity, then the existence of the defendant’s opportunity wipes out the effect of the plaintiff’s contributory negligence.

Example: A plaintiff-driver is waiting to turn onto a highway. A defendant driver is traveling towards the intersection where the plaintiff is waiting. Under Maryland law, the plaintiff driver must yield to oncoming traffic in this situation. As the plaintiff is turning onto the highway, the defendant collides with the plaintiff. If the plaintiff is unable to prevent the collision while the defendant has an opportunity to do so, such as an obstruction that allows only the defendant to see the plaintiff, then the plaintiff’s contributory negligence will be wiped out by the last clear chance doctrine. If the plaintiff had an opportunity to prevent the accident, then in this situation his claim will be barred by contributory negligence. Creaser v. Owens, 267 Md. 238 (1972).

Joint and Several Liability

As a general rule, Maryland holds two or more defendants who are responsible for causing an injury jointly and severally liable. Southern Maryland Oil Co. v. Texas Co., 203 F. Supp. 449 (1962). This means that in cases where multiple defendants are responsible for the plaintiff’s injury, each defendant is held individually liable for the full amount of the percentage of the damages that are not caused by the plaintiff himself. For example, if defendants A and B are found together responsible for the plaintiff’s damages, A and B are each liable for the full damages apportioned to the defendants. This does not mean that the plaintiff can recover all of his damages from each of them, it merely means that the plaintiff can recover up to the total amount between the two defendants, whether it all comes from A, B, or a combination of the two. Moreover, Maryland apportions the liability among joint tortfeasors on a pro rata basis, without regard to the degrees of fault. Md. CJ § 3-1402. Once the determination has been made that two or more parties are joint tortfeasors, the relative degrees of fault between the parties is not determined. Franklin v. Morrison, 350 Md. 144 (1998). The pro rata share then becomes the fractional amount determined by the number of joint tortfeasors — for two joint defendants, each has a pro rata share of 50%, for three joint defendants, each has a pro rata share of 33%, etc. However, A and B have what is known as a right to contribution. This means that if the plaintiff recovers more than A’s “pro rata” share of the damages, then A can sue B for partial reimbursement. Lahocki v. Contee Sand & Gravel Co., 41 Md. App. 579 (1979).

Example: A passenger was killed when the vehicle he was riding in went off a highway. His family brought a wrongful death suit against the driver and the county, alleging that the county failed to maintain proper signs at the curve where the accident occurred. A jury awarded the decedent’s family $37,000 in damages. Each defendant (the driver and the county) are liable for $18,500 each. If the driver paid $20,000 in damages, he could sue for contribution from the county in the amount of $1,500, the difference between his payment and his pro rata share of the damages. Baltimore County v. Stitzel, 26 Md. App. 175 (1975).

Respondeat Superior

If an employee commits a tort during the “scope of employment,” his or her employer will be liable (jointly with the employer). This is the rule of respondeat superior. Respondeat superior is applied to cases involving “employees,” in which the employee is subject to the close control of the person who has hired him. This is distinguished from an independent contractor situation, where the hiring person does not control the “physical details” of the work but rather just the general manner that the work is carried in. Independent contractors generally do not fall under respondeat superior liability unless the employer retains the right to control the manner in which the contractor performs the work. Oaks v. Connors, 339 Md. 24 (1995).

Example: An employee was driving his own vehicle and was on his way to work when an accident occurred. Although the employee was required to have a personal vehicle as a condition of his employment, he was not acting within the scope of his employment at the time of the accident. Furthermore, the employer exerted no control over the method or means by which the employee operated his vehicle. Nor was the use of the vehicle of such vital importance in furthering the employer’s business that the employer’s control over it could have been inferred. Oaks v. Connors, 339 Md. 24 (1995).

Alternative Liability/Acting in Concert Liability

As a special circumstance of joint and divisable liability, sometimes the actions of two or more defendants combine in such a way that it is nearly impossible for the plaintiff to identify which defendant’s action caused the plaintiff’s injury. An example of this would be if two hunters in the woods fired towards an animal, but one of the bullets struck the animal while the other bullet hit a bystander. Without knowing which bullet was fired by which hunter, the plaintiff would be unable to establish the liability of either hunter. To remedy this, some states, including Maryland, recognize “alternative liability” or “concert of action,” where the actions of multiple negligent defendants result in an injury and the plaintiff can’t prove whose act caused the injury. Thodos v. Bland, 75 Md. App. 700 (1988). Example: A passenger, who was injured in a car accident, files an action against the driver of the car in which she was riding and the driver of the second car. Each defendant provides a different account of how the accident happened, which the jury must resolve. This case presents an issue of alternative liability: although there is an allegation that both defendants were negligent, there is no proof that more than one actually was; in fact, it is quite likely that the evidence in the case precluded a finding that both defendants were negligent. Thodos v. Bland, 75 Md. App. 700 (1988).

Joint Enterprise Liability

A “joint enterprise” may arise in negligence actions, where the negligence of one main actor is imputed to the other actors and results in imputed contributory negligence. It often arises in auto accident cases, where the negligence of the driver is imputed to the passenger (either to allow the occupant of a second car to recover against the passenger, or to prevent the passenger from recovering against the negligent driver of the other car under the doctrine of imputed contributory negligence.)

Example: A mother purchases a car, which is used by her daughter for a trip to a wedding. During the trip, the daughter and her friend in the vehicle get in an accident with another vehicle, injuring the other driver. The mother could not be held liable for the negligence of her daughter under joint enterprise liability just because she is joint owner of the vehicle, unless she was exerting control over her daughter during the trip. Likewise, the daughter’s friend could not be considered in a joint enterprise with the daughter unless she had significant influence over the driving at the time. Baitary v. Smith, 140 Md. 437 (1922).

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