XXII. Damages

Once one gets beyond the concrete medical bills and replacement costs for lost items chargeable in a tort action, assessing damages can be profoundly difficult. The core idea of tort is to make a deserving plaintiff whole again, and money is the vehicle by which to do it.

Lost wages might be clear in some cases, and speculative in others. What amount to account for a lifetime’s labor for a ten-year-old girl who has been wrongfully killed? A one-day-old baby? Should the answer vary depending on the existing circumstances of the plaintiff? If the same automobile accident on a sidewalk injures both a high-income patio diner and the low-income waiter serving her meal, depriving each of a livelihood, is the wealthy customer due more money to be restored to her prior position than the waiter? Tort law’s traditional answer is that it is compensatory, not redistributive. So people are entitled to be restored to the position they were in before they were harmed — even if that position itself reflected disparities and injustices separate from the unreasonable behavior giving rise to a lawsuit. Especially when damages are forward-looking — replacing a “lost income stream” for years to come, this may bear further examination, as this approach could lend the law’s imprimatur, and reinforcement, to anticipated future structural disparities as well as past ones. Imagine estimating the future income of an injured ten-year-old mostly on the basis of the income distributions of the neighborhood in which they live.

Beyond lost income, if someone’s wrong has caused pain and suffering, that’s a negative to be offset by the positive of compensation. But how should a jury assess pain and suffering? Sometimes this can be thought of as a question of evidence: what may be brought before the jury as fact by one party, subject, as always, to challenge by the other? At other times it may fall to jury instructions, or to what a lawyer may be permitted to say in opening or closing argument.