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16704Re: [tips_and_tricks] civil injury

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  • Trophy Wife
    Feb 21, 2009
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      In a personal injury case - the purpose of compensatory damages is to "place the injured party in a position similar to that he would have been in had the wrong not occurred, i.e. to compensate him for injury suffered." 
      Under compensatory damages, you are entitled to general damages for pain and suffering and disfigurement, as well as special damages for loss of past and future earnings, and for past and future medical expenses.
      General damages are those that arise naturally from the commission of a tort (a personal injury).  They do not need to be pleaded specially in a complaint.  Such damages need not be foreseeable to be recoverable, and non-foreseeability will not limit recovery. 
       Special damages are more difficult to prove such as recovery for future medical problems may arise.  In this case, you would have to establish the probability that future medical treatment will be required and the approximate cost of the treatment.  You would need to determine if your crushed toe could cause you problems in the future, which could very well lead to future medical expense. 
      Back to general damages - you are entitled to receive compensation for lost pay BUT if you received payment for sick days from your employer, under the "collateral source rule"  Home Depot cannot "mitigate" it's compensation to you by saying you were paid sick leave pay.  They can't use this, or take it into consideration.
      Also, if you had medical bills paid by health insurance, this falls under the collateral source rule, also, and the tortfeasor (Home Depot) can't use this to pay you less for medical expenses, either.
      You can also claim "loss of earning capacity" even if you were unemployed or had no actual earnings accruing during your incapacity.  You can recover damages if you establish that you were deprived of earning opportunities as a result of the injury.  All you have to show is that due to the injury you were prevented from seeking employment.
      Under pain and suffering, you are entitled to be compensated for the past, present, and future pain and discomfort caused by the injury.  $950 seems rather low - and only you can determine how much you think the pain and suffering should be worth.
      There's also damage for emotional anguish if there's disfigurement.  Even if it's just a toe - is your toe permanently disfigured for the rest of your life?
      Nonmarket services - compensation may also be awarded for the value of such nomarket services as mowing the lawn, shovelling snow, washing dishes, or shopping.  Did someone else have to do this for you this winter?
      Any damage award you receive are not taxable under federal or state law.  In short, you may want to "haggle" for more before you sign off on it.
      Hope this helps
      ----- Original Message -----
      From: suavae
      Sent: Friday, February 20, 2009 6:54 PM
      Subject: [tips_and_tricks] civil injury

      Greetings all. I have a question I hope is appropriate.
      11/28/2008 my big toe was crushed & broken while loading drywall @
      Home Depot. I was a customer. They were @ fault.
      Their insurance company has offered to pay the medical bill ($680),
      9 days lost wages ($1370) & $950 for pain & suffering.
      Is this fair or do I need to haggle with them for more?
      Thank you for any advice...

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