There are two main kinds of remedies provided by a court: injuntive relief or damages. There are three kinds of damages:

  1. Nominal damages (trivial amount)
  2. Compensatory damages (Restoring the plaintiff)
  3. Punitive damages (Punishing the defendant)

A couple other things to note about damages is that they are always monetary and awarded in one lump sum. This is regardless if the amount covers injuries past, present, or future.

Calculating Damages

Anderson v. Sears, Roebuck & Co.

377 F. Supp. 136 (E.D. La. 1974).

Sears is the defendant, lost and challenged the total amount in the verdict.


Was the jury’s allocation of damages unreasonable?


If the damages determined by the jury is unreasonable, then the court can calculate the highest possible amount of damages to determine how much the plaintiff is entitled.

To calculate the damages, the court will consider:

  1. Past physical and mental pain
  2. Future physical and mental pain
  3. Future medical expenses
  4. Loss of earning capacity
  5. Permanent disability and disfigurement


Calculations exceed the jury’s determination. Therefore, the jury’s decision stands.


There was a fire caused by a Sears furnace. The fire severely injured the mother, father, and the defendant child. This child underwent several procedures to save her life and will have needed to undergo several more throughout her life. Because the burns are so serious, it is not expected that she would be able to live a normal life.


The court uses each of the categories above to calculate the total expected damages. That amount was higher than the jury’s amount and therefore the jury’s result stands.

Additional Notes

This is about the maximum recovery rule. For each item of damage, the judge can determine the maximum amount someone can recover. If the jury’s determination was higher than that amount, then the judge may order a new trial or remitter to reduce the reward to the proper amount.

Richardson v. Chapman

676 N.E.2d 621 (Ill. 1997).

Chapman is the defendant. He lost and challenged the total damages the jury awarded.


Were the damages excessive?


See the same rule as above.


The damages were excessive. Remitter granted.


Bad car accident involving a semi-truck. One plaintiff was paralyzed requiring several surgeries. The jury awarded $22,358,814 to this plaintiff. The other plaintiff suffered a scratch that took several months to heal but otherwise suffered no injuries. The jury awarded $102,215 to this plaintiff (100,000 of which was for pain and suffering).

Economic Losses

Economic losses are pretty straightforward and easy to recover. An example would be medical bills.

Here are the types of economic losses

  1. Past and future medical bills
  2. Increased medical monitoring
  3. Past wages lost
  4. Loss of earning capacity (I can’t work anymore)
    • Could be the most expensive but is also the most unpredictable.

Present Value

Do we account for the present value of future damages? The issue with this is that the future cost of things is variable and unpredictable. The goal is to use the money for the damages. If you pay for all of those damages up front, then the person is going to be overcompensated. That is because plaintiffs are going to invest and will make more money than what their actual damages.

Do we consider inflation? Typically the answer is no.

Non-Economic Losses

There are two kinds of losses: past and future (in relation to the trial). Some examples of non-economic losses are:

  1. Mental anguish as a result of physical pain
  2. Loss of function or appearance
  3. Emotional distress from legal malpractice
  4. Loss of enjoyment of life (hedonic damages)(activities that you are not longer able to do. i.e. bowling, spending time with grandchildren, etc.)

Our challenge is how to measure the value of the damages. The Per-diem argument is one way that people try and measure these damages. The idea is to make the focus of these losses to put it to a daily or hourly wage and calculate it for the expectancy for life. For instance, say the person suffers 50/day and has a life expectancy for 20 more years. What would be their damages? $365,000

Montgomery Ward & Co., Inc. v. Anderson

976 S.W.2d 382 (Ark. 1998).

The collateral source rule is where if a third-party is covering some of the damages of the plaintiff, that does not preclude recovery from a court. In other words, a person can recover from both the third-party (typically insurance) and the defendant. This is to reward the plaintiff for being diligent in protecting themselves.

Punitive Damages

Punitive damages are not as simple as they may sound. Once upon a time, they were used frequently. However, over time and with the Supreme Court, punitive damages became rare. Instead, courts want to focus the “win and go home” philosophy. The main exception are business tort cases.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.