August 18, 2019

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Establishing Damages in a Tort Claim

The aim of damages awarded in tort actions is to provide the injured party with compensation for the injuries they have suffered. There are various factors that are considered when establishing the amount to be awarded in the claim. While there are a number of different types of damage claims and the calculation of those damages can be complex, following are some types of claims and a basic explanation of the factors that are considered in calculating the value of the damages:

  1. Losses to real estate

Most torts don’t involve damage to real property, but some do, including nuisance claims such as when a hog farm sets up business next door and the odor becomes unbearable. A loss to real property is determined by establishing the value of the property before and after the injury. Damages for permanent nuisances are awarded based on the damage up to the point of litigation. In cases of temporary nuisance, the plaintiff can file subsequent actions for injuries caused by the continuation of the nuisance.

  1. Injury to personal property

This is determined by establishing the difference between the property’s market value before and after the injury. If the property has been completely destroyed, the victim is compensated based on the fair market value of the property. In some cases, the cost of repair is considered. However, this should not exceed the market value of the property. If it does, then it would make better sense to have the item replaced. A good example of this type of claim involves a car accident in which the victim has a claim for damage to the vehicle.

  1. Lost wages

These are awarded based on evidence of:

  1. Lost wages in a specific period of time since the injury

  2. Expected loss or diminishing of wages in the future

The amount awarded is based on the gross wages, retirement contributions, social security and other withholdings.

  1. Wrongful death

The family of a victim is able to receive compensation for wrongful death. In most states, damages are awarded to the immediate family or descendants of the victim even if they are not beneficiaries of the victim’s will. However, the eligibility for wrongful death claims is complex and you should consult with an attorney to see if you can make such a claim. Also, it should be noted that these damages typically are not subject to claims that creditors can make on the descendant’s estate.

  1. Loss of consortium

Consortium can be defined as consisting of society, services as well as sexual relations under common law. These type of damages are often awarded to spouses for the loss of consortium with their spouse. Damages are awarded based on the value of the loss.

  1. Punitive damages

Punitive (also referred to as exemplary) damages are rarely awarded and then only in the most egregious cases. When they are awarded, the goal is to punish the party at fault for particularly bad conduct. They are imposed as a measure to deter repetition of the offense. Damages are often reflective of the enormity of the offense.

  1. Emotional distress


These are awarded to victims based on evidence provided by mental health experts on the health, expected losses and earning capacity of the plaintiff.

Talk to a personal injury compensation lawyer near you today.

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