Mitigation of Damages

No one expects a person seriously injured in an accident to run a marathon or to bench press 500 pounds soon after the injury.  At the same time, the legal concept of mitigation of damages requires those injured to make reasonable best efforts to get back on their feet.

Mitigation of Damages

Mitigation of damages asks an injured person to exercise reasonable diligence and ordinary care in attempting to minimize their damages after an injury.  Due diligence requires the same efforts by the individual as that which would be used by a person of ordinary prudence under similar circumstances.  Mitigation of damages applies as an affirmative defense when the injured person fails to take reasonable actions that would tend to reduce the effects of the injury.

Malingerers

Insurance companies love the related concept of the “malingerer”.  They define this as the person who feigns the length or extent of their injury.  The accusation is that they consciously simulate mental or physical symptoms and prolong the process.

Mitigation of Damages applied to Injury Cases

Insurance companies often point a finger of blame that accident victims drag out or exaggerate their symptoms.  And some do.  But insurance company attempts in this area are often overreaching and fail.

Take the case of a police officer directing traffic after an accident and suddenly a utility pole fell, a cross-bar striking him in the head.  He was out of work for two years.  At trial, the judge refused to give requested jury instructions on mitigation of damages.  There was no actual evidence to contradict neurological evidence supporting the two year work absence.  The Massachusetts Supreme Judicial Court upheld the trial court’s refusal to give insurance company requests for mitigation of damages instructions.

Sure enough, mitigation of damages is a real defense.  For example if insurance company surveillance video shows an accident victim playing tennis or jogging when the individual testified at deposition that they were unable to engage in such activities of daily living, mitigation of damages is more likely to reduce any damages claim.

Duty to Mitigate

As in many areas of the law a test of what is reasonable applies to any duty to mitigate.  The law imposes a general duty to mitigate damages.  Those injured are obligated to exercise reasonable care and effort to avoid loss and to minimize damages.  Recovery can be precluded for losses which could have been prevented by reasonable efforts without undue risk, expense or humiliation.  Recovery can be allowed for expenses reasonably incurred to avoid or minimize damages.

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A “search for the truth” is the idea behind the discovery phase of civil law suits.

Hollywood keeps movie viewers in suspense, telling a tale but holding back on a final nugget of truth until a secret witness shows up in court at the end revealing “the truth”.  Forget all that.  In the real word, in civil cases such as personal injury and other claims, once a case is filed, it enters the discovery phase of litigation.

Court rules govern what happens in discovery.  The rules require parties to disclose basic information.  The information is sought through tools of discovery.

What are the Main Discovery Tools?

1.       Interrogatories

Interrogatories are a list of written questions.  Parties to litigation must answer the questions in writing, under oath.  Different jurisdictions place varying limits on how many questions may be asked.

 2.       Requests for Production

Those involved in litigation can ask for copies of documents, including photos, drawings and diagrams.  This rule also allows inspection of places and things such as a property where an accident took place or a machine that caused injury.  Such requests usually result in working out a date and time for inspection.   Most often these requests require production of piles of documents and photographs.

 3.       Depositions

In a deposition, attorneys ask opposing parties and witnesses innumerable questions, under oath.  A stenographer documents every word and produces a printed transcript.  In another article I’ve described depositions in more detail.

 4.       Requests for Admissions

Requests for admission focus on individual facts and issues, forcing the other side to admit or deny specific points.  The light was red.  You got a traffic ticket.  The other alternative, only if in good faith, is to say you don’t have enough information to admit or deny.  This effectively acts as a denial.  But, the other side can receive an award for costs incurred in proving a denied issue.

 5.       Subpoenas

Subpoenas issue with the authority of the court commanding the properly served recipient to appear at trial or in an attorney’s office for questioning.  Subpoenas also seek production of business records, medical charts or other documents.  Proper issuance of a subpoena requires compliance with technical requirements in the rules of each court.

How Far Can Discovery Go?

Parties may obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in the case.  Privileges generally include attorney-client, work product, husband-wife communications and some others.

But, discovery rules define “relevant” broadly.  The legal standard for allowable discovery is anything reasonably calculated to lead to the discovery of evidence admissible at trial.

Where discovery presents “annoyance, embarrassment oppression or undue burden or expense” the rules authorize protective orders.  But, courts expect attorneys to attempt to resolve discovery disputes amongst themselves before filing motions over such broadly defined offenses.  The loser of a motion can be ordered to pay attorney fees to opposing counsel and may incur other sanctions.

Discovery Issues

Federal Rules of Civil Procedure apply in Federal Courts.  State courts adopt their own rules, which differ widely.  Some discovery obligations are “automatic”.  This means information listed in the automatic discovery rules must be disclosed to the other side within a specified time even though they haven’t asked.

The discovery phase of litigation consumes time.  For whatever reason, rules change from time to time.  This summary outlines the overall process.  More specific complications often prolong the “search for truth”.

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Dog bite cases present a shocking sudden trauma and long term damages.  Man’s best friend turns into a monster.  Permanent scarring results in many cases.

Strict Liability

The only good news in dog bite cases comes in strict liability.  Most, not all, states impose strict liability on the owner or keeper of a dog for damages inflicted by the animal.

For example, the Massachusetts dog bite statute imposes strict liability for damage caused by a dog. There is no “one free bite” rule as there used to be under the common law of negligence regarding dog bites.

Under the negligence standard in the minority of states without strict liability laws, the dog owner is usually required to have been on notice as to the dangerous propensities of the dog.  So, if the dog bites once – the one free bite –there’s no case.  But afterwards the owner becomes liable.

Any Defenses to Strict Liability?

The only defenses to the strict liability in dog bite laws protect the dog owner if the victim meddled with the dog.  The Massachusetts statute potentially forgives the dog owner if the victim teased, tormented or trespassed against the dog.  The similar New Hampshire statute provides a defense if the victim was engaged in the commission of “a trespass or other tort.”

The ‘teasing, tormenting or trespassing’ defenses do not apply in Massachusetts if the dog bite victim is a child under the age of 7.  A presumption kicks in that the child is not doing any of those things.  This means the dog’s owner or keeper must present substantial proof.  So, in most cases of dog injuries to children under 7, the owner or keeper will have no defense.

What About Non-bite Injuries.

Laws vary by state.  But, the Massachusetts law holds the owner liable if the dog “shall do any damage”.   Thus, my office successfully handled a case in which a dog, dragging its leash, ran in front of and then around a woman, tripping her with the leash.  Personal injuries caused by a dog jumping and pushing a person down, or a person tripping over a dog are recoverable.

Does Dog Bite Law Apply to Other Animals?

A cat scratches a woman seriously enough to require a trip to the emergency room.  But most strict liability statutes specifically apply to dogs.  So, this case defaults back to requiring proof of dangerous propensities.

Most strict liability statutes apply only to dogs.  Other pets, domesticated animals or kept wild animals are not included and different rules apply.

Who Does the Law Apply to?

By now, you’ve likely noticed reference to the dog owner or keeper.  Those held liable are not just the owner, but can also be a keeper or person in possession of the dog.   A keeper is defined as someone who ‘harbors’ a dog with an “assumption of custody, management and control of the dog.”  So, “vet-techs”, trainers and dog walkers potentially fit the role of keeper subject to liability for dog-inflicted injuries.

Dog Bite Cases – Final Issues

As of this writing 17 states still have the old negligence standard in dog bite cases.  The statutes in Massachusetts and New Hampshire are fairly typical.  However, these laws do vary from state to state.  These are the 2 states in which I am licensed.

The phrase “strict liability” does not mean “automatic recovery”.   Thorny issues can rear their ugly heads.  So, it’s wise for a victim injured by a dog to retain an experienced attorney in the jurisdiction.

Homeowners insurance usually covers dog bites.  However, some  insurers exclude certain breeds, such as pit bulls.  In those cases, the owner or keeper can face personal liability for their dog’s bad conduct.

[Note:  The laws referenced in this article are, in Massachusetts, MGL c. 140 § 155, and in New Hampshire, RSA 466:19.]

Notice Of Claim

Notice requirements compel those injured in an accident to notify proper authorities within a certain time frame.  Otherwise, they lose the ability to make a claim.

Many people understand statutes of limitation. Such laws give an injured person a certain number of years after an accident to file a proper complaint in a court with jurisdiction, or the case is barred forever.

By contrast, notice provisions require proper notification within a set time after an accident.

Notice Requirements Vary by Type of Claim

Auto insurance companies require reasonably prompt notice after a car accident.  This applies to claims for property damage, payment of medical bills, payment for your lost wages and other claims.

State laws sometimes require 30 day notice after a slip and fall accident.

Suing the government, any government at any level, nearly always requires compliance with numerous legal requirements, one of which is often an initial “notice of claim”.  After that, “presentment” procedures require injured parties to spell out the substance of the claim and to provide documentation long before the statute of limitations runs.  The theory is the government must be given an opportunity to consider settlement before a lawsuit is filed.

Each state, each municipality, and the federal government all have their own procedural statutes and regulations imposing a variety of notice rules.

An extreme example is presented by auto insurance uninsured claims.  It is not unusual for an auto insurance policy to require that notice be given to police either immediately after a collision, or no later than 24 hours after the accident.  Without proper notice the insurance company will deny an uninsured claim.

Form of Notice

There is no such thing as a standard form notice of claim.  There may be official looking documents in allegedly legal software or in big box stationery store document packages.  But, each statute and regulation specifies the content and form of notice that is required.

For example, the notice required after a slip and fall on government property, and a notice for the same slip and fall on private property are distinct documents, not to be confused with a notice to a claimant’s insurance company preserving the right to bring later claims for medical bills, lost wages or other claims.

Notice Requirements: Quick Action Needed

Some procrastinators might understand the concept of a statute of limitations and play chicken with the law by waiting until the last minute.  But, it’s often far more important to give notice of the claim very soon after the accident in order to preserve the right to make a claim later.

Notice requirements are one of many reasons why retaining an experienced personal injury attorney as soon as possible after an accident is critical, to ensure that important rights are not unintentionally waived.

Premises Liability

Premises liability cases address the legal duty of property owners.

Many scenarios fall under premises liability.  A store customer opens a cooling unit to reach for an item and a heavy door slams into her head.  A shopping cart speeds along the floor, striking a customer.

A homeowner, legally burning brush, walks away and a neighbor child stumbles onto hot coals, sustaining severe burns.  Pool injuries can present premises liability issues. Slip and fall accidents are addressed in another article.

The Duty of Property Owners

Landowners must act reasonably in maintaining property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.

What Does That Mean?

The fact of an injury on a property doesn’t automatically make the property owner liable for the injury.  The injured person has a burden to prove that those in control of the property did something rising to the level of negligence.

Was the injury foreseeable?  The traditional negligence test holds that if the defendant could not reasonably foresee an injury, there’s no liability.  But, where a potential harm is foreseeable, the premises operator faces a duty to take reasonable precautions.

A reasonable precaution exists where the burden of taking the precaution is low in comparison to the gravity of the harm.

An example would be where it would be relatively easy to cover up exposed electrical wires that could cause an electrocution.  Here, the burden of taking the precaution is low compared to the gravity of the harm.  This is a reasonable precaution.

The test of reasonable care under all circumstances applies to both owners and occupiers of property in maintaining property.

Notice

Where a specific danger causes an injury, in order to recover the injured person must prove that those in control either knew or should have known of the danger.  For example if the electrical wires in the above example were exposed for a period of time out in the open, the property owner is more likely to be held liable.  If the wires were cut by a customer, an injury occurs shortly after with no opportunity for notice, liability is less likely.

Premises Liability Law: State Law

Premises liability standards vary from state to state.  More important, procedural requirements vary widely under the laws of each state.  Consult with an attorney right away to comply with mandatory notice requirements and other hurdles that can end a claim if not handled properly.

The above general liability analysis is substantially similar to the law in most states, but is specifically derived from cases in Massachusetts and New Hampshire, the two states in which I am licensed.

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Products liability cases present horrifying facts:

A power wrench explodes throwing metal pieces into an auto mechanics face, causing partial blindness.

The transformer block on a new telephone answering device short circuits, sparking a home fire.

A breast implant ruptures, leaking fluid into a woman’s body, causing cancer.

These actual product defects provide a few examples of what comes under products liability law.

Products Liability: How it Happens

Product failures are sometimes caused by a design defect.  The design of the product is inherently dangerous.  Other times, a manufacturing defect creates the danger.  In such instances, a perfectly viable product may not be manufactured to specifications.  Low grade or untested materials may have been used in manufacture, causing the product to fail.

Yet other product injuries occur when manufacturers fail to properly warn of defects or to instruct in correct installation or use.  A pool manufacturer fails to reasonably instruct on proper attachment of a ladder, slide or other accessory, causing the item to give way, throwing a swimmer to the ground.  Several legal theories make up products liability law:

Negligence

Manufacturers have a duty to make reasonably safe products.  When they fail, their breach of duty presents a negligence claim.  But proving what is reasonable in the design of, say, a child’s toy may not be so simple.  Issues include establishing what is reasonable and how far the manufacturer fell below the reasonable standard.

Strict Liability

Strict liability focuses not on the manufacturer but on the product.  When a defective product is placed into the stream of commerce, the manufacturer is held strictly liable.  This means there’s no requirement to prove negligence.  Manufacturers and sellers of defective products, defined as unreasonably dangerous to the user or consumer, face strict liability for physical harm caused to the ultimate user or consumer.

Breach of Warranty

Product manufacturers also face liability when a breach of a warranty causes an injury.  There are express warranties, usually but not always in writing.  More often in defective product cases, an implied warranty is involved.  Implied warranties attach to the sale of all goods under the Uniform Commercial Code.  One such warranty, the warranty of merchantability, guarantees that all products sold would pass without objection in the trade, and an unreasonably unsafe product breaches this warranty.

Products Liability Cases

Among products that have caused serious injuries and even death are toys, cribs, and other items for children and infants.  Defective bicycles, various guns and dart games as well as choking hazards and other toys unfortunately cause injuries before recall.

Food poisoning also falls under product liability law.  Sometimes food comes into contact with bacteria, virus, a parasite, or other dangerous contagion.  Other times foreign objects get into food.

When prescription items harm to consumers, those injured may be able to pursue a product defect case.  Various prescription drugs can cause devastating consequences either due to lack of adequate testing, failure to warn of side effects or inconsistencies with other drugs, and sometimes bad labeling.

Where multiple consumer injuries result from the same product defect, class action suits provide an option.  In a class action all injured victims share the expense of experts required to establish the product defect.  Other times cases are brought and won by individuals harmed by defective products.

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Minor settlements, personal injury settlements for those under the age of minority, often need court approval before funds are released.

Here’s the problem: minors lack legal capacity to make binding decisions.  Minors in most cases can’t sign enforceable contracts.  So, an insurance release cannot bind a minor.  This contradicts the basic purpose of insurance company releases seeking to resolve a claim permanently.

Suppose a boy or girl receive injuries in an accident.  The parents at some point later settle the case.  What happens if, after the boy or girl turn 18, they realize that injuries were more serious than anyone knew and they claim the insurance company and their parents sold them short?  That’s why courts get involved in reviewing minor settlements.

What Happens in Court in Minor Settlements?

The process can involve the trial court in which the claim is filed.  But, if no case was filed, then a petition for approval of minor settlement can be filed.  Sometimes called a ‘friendly suit’ this filing formally seeks court approval of the minor settlement.

The judge will want the minor and parents to be present in the courtroom for potential questions unless unique circumstances exist. A medical report must be submitted detailing the minor’s injuries and the outlook for future problems. Structured settlements with long term payouts require an affidavit from a certified public accountant or other financial professional showing present value of the plan.  An annuity, too, requires backup paperwork convincing the court that the terms of the plan are truly in the best interest of the child.

The process for approving minor settlements seems time consuming.  Sometimes the court even requires a guardianship.  The goal of all this is protecting the minor.  But in the long run, it also protects parents.

That’s the theory.  Laws in each state control the process and the procedure.

Massachusetts

Massachusetts law does not mandate court approval.  The law states the trial court “may” review and approve minor settlements.  But for the above reasons, most insurance companies will not pay on a minor settlement without a court stamp of approval.  The court may make various rulings, including appointment of a guardian, although this tends to be rare in smaller ticket cases. (MGL c. 140C1/2 provides the Massachusetts procedure.)

New Hampshire

In New Hampshire, if the settlement is $10,000 or less you don’t have to do anything. This law doesn’t apply. But, amounts over that must be submitted to court for approval. The Superior or District Court require certification that the Probate Court has appointed a guardian of the estate of the minor to accept the settlement funds and to be responsible for the funds. This will usually be a parent, “next friend or other person” who will receive the settlement money and be responsible. That means every year they must file an accounting, showing the court that the funds are being handled properly.  (RSA 464-A:42 states the NH procedure.)

Prepare Minor Settlements Right First Time

My office represents clients in Massachusetts and New Hampshire where I am licensed.  That’s why this summary highlights the process there.  It is highly recommended that an experienced personal injury be retained to handle minor settlements for everyone’s protection and to speed things up to the extent possible.

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I write a biweekly newspaper column in New Hampshire’s Derry News.  Once a year I abandon efforts to answer reader questions or to review major legal cases.  Every April Fools Day, I review truly foolish occurrences in the law I’ve been saving up since the last April 1.  ‘Fools In The Law 2013’, highlighted below, reaches new lows:

Salem, NH.  Witnesses call police reporting a woman who appears intoxicated trying to drive out of a gym parking lot with kids in the vehicle.  Police arrive.  A scene ensues.  One of the allegedly intoxicated motor vehicle operator’s children in the back seat holds out an open bottle of wine, explaining to police: “I think this is why mommy is so sleepy”.

New Orleans, LA.  A police prosecutor chats with police officers in court.  Suddenly a marijuana cigarette allegedly falls out of his pocket, dropping to the floor.  Witnesses describe a comical picture of the scene, saying two police officers glance down at the “joint” on the ground, then at each other, then make possibly the easiest arrest in the history of police work.  Topping it off, the prosecutor’s wife is running for New Orleans City Council, and is “forced to apologize for him.”

Miami, FL.  An 18-year-old woman faces a bail hearing on drug charges.  She can walk out on $5,000 bond.  Unable to maintain composure, she laughs and tells the judge “adios”.  The judge reconsiders, jacking bail up to $10,000.  The teen flips the judge her center finger, blurts an expletive, bringing yet another review and 30 days behind bars.  People think I make this stuff up.  So, for a primer on ‘How Not To Behave In Court”, Google: “Fla woman jailed after flipping off judge during court hearing.”

Bismark, ND.  North Dakota authorities suspend a lawyer from practicing law for charging a client for six hours of time to prepare his legal bill.  Charging the client to prepare the bill raises enough eyebrows.  But, an additional hour is billed for the lawyer’s time looking for the file.

Slidell, LA.  Sheriff’s Department time is at a premium.  A 33-year-old man walks into the sheriff’s department headquarters requesting information on a file.  While he waits, security cameras capture the man pocketing three ball point pens in the reception area.  He is arrested and charged with theft.  (Tip: try the bank.)

Boston, MA.  This is personal experience:  I walk into one of the buildings in Boston’s financial district with a client.  We’re directed to the “security” desk.  The man in front of us, dressed in a business suit, is delayed.  His name is ‘not on the list’.  No one answers the phone in his destination office.  After prolonged delay, a call finally comes down.  He is released.  I step up.  I am ‘not on the list’.  Correspondence confirming the time, date and place of our mediation fails as a pass.  The stern young man on the desk looks behind me, asks “are you with someone?”  My client, an attractive woman in her 20’s with blonde hair steps forward, smiles and identifies herself as my client.  Without a blink of the eye we are waived on to the elevator with no further inquiry.

The years are short.  But even the vast internet barely contains the annual parade of foolishness.

This blog is based upon a column initially published in the Derry News, ‘About the Law’ © 2013 Eagle Tribune Corporation.

Bankruptcy Petition Preparers

Bankruptcy petition preparers offer an option sort of like a guy in a trench coat selling wrist watches.  Bankruptcy petition preparers are not attorneys but offer ‘document preparation services’.  With a word processor and a computer, pretty much anyone can create a pile of paper.

But a troublesome issue looms where bankruptcy petition preparers create a legal court document, but do so without legal advice placing the bankruptcy petition into perspective of bankruptcy law and procedure.

Bankruptcy Petition Preparers - No Legal Advice

Unlike attorneys, by law, bankruptcy petition preparers may not:

• Represent bankruptcy filers in court.
• Offer advice on whether to file under chapter 7, 13 or another chapter.
• Offer an opinion of which debts will be discharged.
• Give advice on property such as a car or a home and whether the debtor will keep them after bankruptcy.
• Give advice on tax consequences.
• Give advice on strategy or reaffirmation agreements on cars or other assets.

These acts are prohibited by the U.S. Bankruptcy Code.  [11 U.S.C. 110(e)(2)].

Like buying a wristwatch from a guy on the street, consumers might save a few bucks.  But, what do they do when the watch stops or turns out fake?

Legal Advice – Bankruptcy Attorneys

Bankruptcy attorneys by law are required to explain the differences between the various chapters under the bankruptcy law.  Unlike bankruptcy petition preparers, attorneys can also:

• Explain legal exemptions allowing property to be retained after bankruptcy.
• Answer questions about debt and expenses on the 7 page mandatory means test.
• Help meet filing requirements and deadlines.
• Decide whether you qualify for avoidance of liens.
• Give advice on ownership issues with jointly owned property and businesses.
• Give advice about what expenses are considered “reasonable”.

It is the difference between mechanically typing up papers and comprehensively drafting a valid document with perspective over bankruptcy law and procedure.

Defective Bankruptcy Petition Preparer

The Massachusetts Attorney General has brought suit against a Lawrence, MA bankruptcy petition preparer, bringing an injunction prohibiting it from soliciting or receiving fees for bankruptcy petition preparation or other related work.  The suit identifies 107 bankruptcy cases initiated by the preparation service, 27 of which had fundamental defects.

One debtor told a newspaper reporter she was given no “opportunity to meaningfully review the documents” as she was rushed to sign next to sticky notes.  [Sunday Eagle-Tribune, March 24, 2013, p. A7.]  Less than a week later, that debtor was notified by the U.S. Trustee that the petition was “grossly deficient”.

The U.S. Trustee initiated “disgorgement” proceedings.  This is an action to take profits back from the preparer who prepared the illegal petitions

Legal Advice From Bankruptcy Attorneys

Typical chapter 7 bankruptcy petitions average 50 pages.  Chapter 13, including a plan, adds a few more pages.  But, viewing the task of completing the petition and other documents as simple “legal document preparation” misses the point.

Those who file have individual financial circumstances that brought them to bankruptcy as an option.  Only an experienced bankruptcy attorney can review all individual debt, income, assets and expenses and give meaningful advice.  That legal advice allows bankruptcy filers to confidently navigate procedural and legal complexities of bankruptcy.

A theory dating back 100 years holds that a hypothetical chimpanzee typing at random for an infinite amount of time will eventually type out the complete works of Shakespeare.  Do you want to take one of the earlier random ‘hunt and peck’ drafts as the basis for your fresh financial start?

Life Expectancy Tables

Life expectancy tables provide key information in evaluating some personal injury cases.  The tables give a statistical perspective, a number, telling us how long any given human being can be expected to live. One of the most often overlooked elements of a personal injury case calculates long term potential damages beyond the date a release is signed.

 Simple Residuals

Sometimes it’s simple.  An injury may have residual effects for perhaps a year after the accident.  Armed with medical documentation relating residual to the initial injury, experienced personal injury attorneys attach a fair dollar amount.

Calculating Permanent Loss with Life Expectancy

But, where permanent loss of function, reduced range of motion or other long-lasting medical conditions exist, that’s where the life tables apply.  The tables rank people by age, gender and race and then give a life expectancy.

The tables change annually.  In one chart a 23 year old white female’s life expectancy is calculated at 58.1 years. That number is plugged into a formula based on extent of loss to ballpark value that element of the case.

Cost of Medical Care and Life Expectancy

Future medical treatment presents another post release financial element.  It might be simple. The cost of future surgery to remove pins inserted into a fracture plus postoperative care present relatively hard numbers.

But arriving at a dollar amounts often presents issues.  Where future medical care is anticipated to treat medically documented potential for early onset of arthritis, actual medical costs are tougher to pin down.

Substantial Injuries

In substantial personal injury claims including those where the injured sustains chronic disabilities such as spinal cord injury or cerebral palsy, extensive care is needed for a lifetime.  Life expectancy is part of the calculation.  One complication is that all cases settle in the present.  So, the calculation needs to be made now.

Present value of care over a lifetime is determined weighing several factors including a discount rate figuring the interest rate that will grow the present lump sum based on proper investment of settlement funds.  Cost of care and the probability that the plaintiff will live to an average expectancy are other factors.

Other categories of damages related to residuals are negligently shortened life expectancy and diminution of loss of quality of life.  Again, life expectancy is a multiplier in determining final settlement.

Life Expectancy Sources

Life expectancy tables usually admitted in court are those published by the U.S. National Center for Health Statistics, Vital Statistics of the United States.  Other life tables are produced by some states themselves, the Social Security Administration and the insurance industry.

Do Not Do This At Home

This informational summary only touches on calculating long term potential damages.   Often, those who try to settle their own cases fail to see beyond the present.  If they do, there’s rarely adequate documentation or calculation of long term issues.

Signing a release ends a case.  So, in any injury negligence case it is highly recommended that an experienced personal injury attorney be retained to do it right the first, and only, time.