Existence of an Injury

• Author: Eric E. Johnson
• Pages: 337-352

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9. Existence of an Injury

“No harm, no foul.”

– Chick Hearn, sportscaster for the L.A. Lakers, circa 1960–2000

In General

The existence of an injury is an element of the prima facie case for

negligence. Even if a defendant had a duty and breached a duty, there

is no negligence claim unless there is some compensable harm.

Another way of stating the same idea is that “damages” is an essential

element of the prima facie case for negligence.

Not all causes of action require an injury or damages. For instance,

the intentional tort of trespass to land has no such requirement. If

someone trespasses on your land, you can sue them whether or not

they caused you any sort of loss. So, if someone trespasses by walking

on your land, and then walks off, having not disturbed even a stalk of

grass, you can win a lawsuit against them. In such a lawsuit, you

would be entitled to “nominal damages” – meaning damages in name

only – commonly a single dollar. So why would anyone pursue such a

lawsuit? Except under rare circumstances, there’s no point. Yet, if

they want to, they can.

Negligence is not like that. There must be damages in order to form a

prima facie case. And the damages must be of a certain kind.

Generally speaking, they must be compensatory damages occasioned

by physical damage “to person or property,” meaning to a person’s

body or a person’s tangible property.

In the context of damages, “compensatory” means damages that

compensate someone for an actual loss. It is not possible, for

instance, to sue someone for negligence just out of a desire to punish

them for being careless. Punitive damages will not suffice to make

out a prima facie case for negligence. (Assuming you have

compensatory damages, and thus can make out a prima facie case for

negligence, you can then argue for punitive damages as a way of

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increasing the amount of the award – but that’s a subject for later in

this book.)

The requirement that the damages be for physical injury to the

person or property excludes many possible claims. Notably, mental

anguish, by itself, is not the kind of injury that is sufficient to

establish a negligence case. Also, purely economic damages will not

suffice. So, if someone’s carelessness causes you to not get a job,

then, without more, there is no negligence case. Now, if you lose

your job because you are in the hospital, and if you are in the hospital

thanks to a car accident for which you can establish all the elements

of negligence, then you can recover for both the lost job as well as

the hospital bills. But without the physical injury that sends you to

the hospital, you have no case in negligence.

The doctrine regarding the existence of a compensable injury in the

negligence case is sometimes put under the heading of whether there

is a duty of care – that is, the first prima facie element of negligence

we dealt with in this book. Whether courts look at it as a question of

duty or as a separate element of the negligence case, the point is that

without proving harm – and harm of the right kind – the plaintiff has

not put forth a complete claim.

It should be emphasized that, as a practical matter, almost no one

would want to pursue a lawsuit unless there is the prospect of

substantial damages. Lawsuits are expensive, after all. The amount of

damages, however, is a subject for a later chapter. For now, the

question is whether there is an injury sufficient to establish a prima

facie case.

Bear in mind that most of the time the existence of a compensable

injury is a slamdunk in a negligence case. If it’s not, then the only

remaining questions are usually factual, not legal. For instance, a

plaintiff in an automobile accident case might allege a “soft tissue

injury” – one in which no bones were broken. How to prove such an

injury can be a thorny problem for plaintiffs’ attorneys in the trial

court. But such situations do not present any tricky matters of legal

doctrine. This chapter concerns the relatively rare situations in which

there is a legal question on the matter of the existence of an injury.