B. Intangible Losses Available in Personal Injury Cases

• Library: South Carolina Damages (SCBar) (2009 Ed.)

B. Intangible Losses Available in Personal Injury Cases

Ralph C. McCullough II ⁹⁹Professor of LawCharleston School of Law

1. Pain and Suffering

a. General Principles

Pain and suffering has long been recognized by South Carolina courts to be a compensable element of damages.¹⁰⁰ In Harper v. Bolton, the court stated:

Damages for pain and suffering are unliquidated and indeterminate in character and the assessment of unliquidated damages must rest in the sound discretion of the jury, controlled by the discretionary power of the trial judge. Pain and suffering have no market price. They are not capable of being exactly and accurately determined, and there is no fixed rule or standard whereby damages for them can be measured. Hence, the amount of damages to be awarded for pain and suffering must be left to the judgment of the jury, subject only to correction by the courts for abuse.¹⁰¹

Damages for pain and suffering, which are the proximate cause of the defendant's conduct, are awarded to a plaintiff as an element of actual damages and are compensatory in nature as opposed to exemplary or punitive.¹⁰² They are meant to compensate the plaintiff for physical discomfort and the emotional response to the sensation of pain caused by the injury itself.¹⁰³ A pain and suffering award may only be made for conscious pain and suffering. The plaintiff bears the burden of establishing he or she was conscious during the pain and suffering.¹⁰⁴

In deciding an award of damages for pain and suffering, "the jury may include such damage for pain and suffering as it is reasonably certain will of necessity result in the future from the injury."¹⁰⁵ There is no definite standard by which the jury must determine the amount of an award for pain and suffering. Drawing a comparison to prior awards for pain and suffering offers little guidance as any two cases are seldom, if ever, alike.¹⁰⁶ Thus, the jury has authority to award any amount it finds just and reasonable in light of the testimony and the evidence.¹⁰⁷ The South Carolina Supreme Court has disallowed any jury instruction that suggests future pain and suffering does not have to be reasonably certain to occur.¹⁰⁸

However, a liberal damages award will stand unless one can show it was made out of caprice, passion, or prejudice.¹⁰⁹

The plaintiff's attorney may use a per diem formula for illustrative purposes only to assist the jury in determining an award of pain and suffering. However, the attorney must be explicit in pointing out that only the jury can determine a monetary value for pain and suffering, and the attorney cannot merely state his or her opinion as to the proper amount of an award. Further, there must be some foundation in evidence to support the attorney's per diem formula.¹¹⁰

Federal courts dealing with the issue of whether pain and suffering awards should be discounted to present value have determined they should not be.¹¹¹ While South Carolina courts have not discussed this issue, the district court in Rhodan v. United States predicted South Carolina courts would not discount future pain and suffering awards.¹¹² Since that case was decided, state courts in South Carolina, without discussion, have routinely not discounted future pain and suffering awards to present value.¹¹³

b. Case Law

In Brooks v. United States,¹¹⁴the plaintiff's husband was killed. There was no dispute the decedent lived for about one hour and fifteen minutes after the accident. The court found the decedent was conscious during this time and he suffered pain as a result. The court awarded the decedent pain and suffering damages.¹¹⁵

Pain and suffering damages have been awarded in a variety of other contexts.¹¹⁶ For the most part, when a pain and suffering award is not allowed it is based on trial counsel's or the judge's error.¹¹⁷ Pain and suffering is also not available in a survival action for death on the high seas.¹¹⁸ Additionally, a medical malpractice plaintiff may recover only a maximum of $350,000 from a single health care provider or institution or $1,050,000 total from multiple defendants in non-economic damages.¹¹⁹ These limits do not apply if the institution or provider was grossly negligent, willful, wanton, or reckless.¹²⁰

2. Disfigurement and Disability

a. General Principles

In addition to considering the amount of damages to award a plaintiff for pain and suffering, it is also appropriate to consider the plaintiff's disability and disfigurement.¹²¹Disfigurement and disability damages may be recovered without proof of pecuniary loss because they are compensatory in nature.¹²²

"Essentially [disfigurement] connotes appearance; but except in cases of facial disfigurement, the deformity or imperfection need not itself be visible if its results are."¹²³Because "[i]n cases of bodily disfigurement it is not necessary to have the actual disfigurement under the observation of the public," the injury may be concealed by clothing and still allow for recovery.¹²⁴ However, "[t]he actual appearance of the disfigurement is the criterion in cases of facial disfigurement."¹²⁵ The extent of the disfigurement, as well as its permanency, are normally determined at the time when the healing process is completed.¹²⁶ The reaggravation of a preexisting condition resulting in disability is also compensable.¹²⁷

"While it is not necessary that the disfigurement be 'grotesque and unsightly to the extent that it renders [the plaintiff] obnoxious and repulsive,' it is however, essential that it at least be of a character which impairs the appearance of the person or which renders him unsightly, imperfect, or deformed in some manner."¹²⁸

To prove disfigurement and disability damages, expert testimony is generally not necessary and lay testimony will suffice.¹²⁹ In fact, even just a viewing of the plaintiff or claimant will often times be sufficient to permit recovery for disfigurement.¹³⁰ While, as stated, a plaintiff can recover for reaggravation of a preexisting condition,¹³¹ the proof of a preexisting condition can properly serve to lower the award of damages.¹³²

b. Case Law

In Doremus v. Atlantic Coast Line Railroad,¹³³a minor was injured when the car he was riding in was struck by a train. The court awarded damages to the child for his disfigurements resulting from the collision with the train, causing him to be hospitalized for seventy-three (73) days and to suffer permanent facial disfigurement. Those disfigurements included a severe cerebral concussion, the loss of teeth, a broken arm, lacerations on the lips and thigh, and an injury to the nose that required bone graft surgery.¹³⁴

In Harper v. Bolton,¹³⁵the plaintiff lost an eye. The plaintiff's attorney showed the eye to the jury. The court remanded the case for a new trial. The court held "[t]he exhibition of injuries should not be permitted where such will not tend to throw any light on any issue in the case nor should an exhibition be permitted where it is apparently designed merely to excite pity and commiseration."¹³⁶

In Howle v. PYA/Monarch, Inc.,¹³⁷the plaintiff suffered vision problems following an accident with the defendant. The plaintiff testified that before the accident she had no vision problems and after the accident she had to go to the eye doctor and get corrective lenses. The plaintiff also suffered extensive head and facial injuries in the accident. The court upheld an award for disfigurement.¹³⁸

In Ray v. United States,¹³⁹the court awarded the plaintiff damages for her disfigurement and disability that made her unable to work. The court stated:

The plaintiff has suffered great disfigurement. She will carry her crippled and unsightly figure into every phase of life, her home, stores, neighbors and church. The ever present halt in her gait is surely a ghastly burden. She is a female. Sadie Bell Ray (and no other woman of reasoned mind) would sell her natural attractiveness for any price. This court feels the necessity of being conservative awards the amount of $10,000 for disfigurement. The amount cannot compensate, nor restore, but it is adjudicated by this court to be a just figure under the circumstances.¹⁴⁰

In Davenport v. United States,¹⁴¹the plaintiff was injured in a car accident with an Army truck. The plaintiff lost several permanent teeth and suffered severe damage to several more teeth. He had severe lacerations on the inside of his mouth as well as on his chin and below his lower lip. He broke his pelvis and also suffered severe damage to his legs and in his muscles, ligaments and cartilage.¹⁴² The court awarded both disfigurement and disability damages, concluding:

The plaintiff has a 33 1/3 per cent functional disability as a result of the permanent injuries to his pelvis and leg and is physically unable to carry on the normal duties required of him by his employer prior to his accident or to perform similar duties required in any other employment for which he is trained. Plaintiff has a pronounced limp as a result of the accident to his pelvis and leg and such limp constitutes a permanent disfigurement to this plaintiff.¹⁴³

The court ultimately awarded the plaintiff $35,000 in actual damages, covering both the disfigurement and the disability caused by the defendant's negligence.¹⁴⁴

In Emory v. Piedmont Chemical Co.,¹⁴⁵the plaintiff was riding in a car traveling between Greenville and Spartanburg when a tractor-trailer owned by the defendant pulled across the road and into the path of the plaintiff.¹⁴⁶ As a result of this accident, the plaintiff was thrown into the dashboard and windshield, "sustain[ing] severe lacerations about her entire face" requiring 200 - 300 stitches.¹⁴⁷ She also suffered permanent injuries to her facial nerves and muscles, causing the muscles around her left eyelid to function improperly. She also will not be able to return to her former employment as a waitress.¹⁴⁸ The court awarded her damages for her facial disfigurement and for her disability in the amount of $15,000.¹⁴⁹

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