Pain and suffering

[progressiveman1]

Should the courts award money for "pain and suffering?" If so, what objective standard should there be to determine the amount awarded?

[progressiveman1]

I'll take a stab at it, although I'm not highly knowledgable with the details of law.

The courts should be a place of objectivity, with as little subjectiveness in rulings as possible. Things like property damage, medical bills, loss of work, can usually be decided with little or no subjective reasoning at all. However, rulings on "pain and suffering" would have to be significantly subjective because it would be based on a psychological state and not numbers(money). That's why I think courts should only award money strictly for objective and monetary damages.

[JMeganSnow]

If someone has inflicted pain and suffering on you, why are you in civil court?

From what I understand, most pain and suffering awards occur in civil cases and are not something that the defendent inflicted upon you, but a result, perhaps even accidental, of something else that they did.

There is an objective measure of pain and suffering: medical bills. Asking for even more because you happen to be a wuss is absurd. No, you may not demand $100,000 because you're suffering post-traumatic stress syndrome after a mouse fell on you. Get over yourself.

[DavidOdden]

Start with the fundamental premise of civil awards: you have violated a person's rights, but in a fashion not explicitly criminalized in the code of the jurisdiction so that you are imprisoned. The principle is that the defendant should "make the plaintiff whole", as much as possible. This includes returning specific property or equivalent property (who judges? by what standard?). The principle of justice says that if a may wrongly cuts off your arm, you are entitled to compensation (for the arm, or the loss of livelihood resulting from the loss of arm, these being separate considerations). Who decides what an arm is worth? I think there's a book that answers that question.

The fact that it is difficult to quantify damage in the form of pain does not invalidate the principle of justice that a rights violator should be made to pay for his wrongful actions, whatever they are. I suggest the problem is not in the concept of justice that leads to awards for pain and suffering, but the particular principles regarding the computation. I suggest, then, turning to those principles. As a starting point, an article that addresses this is Avraham (2006) "Putting a price on pain-and-suffering damages" (100 Nw.U.L. Rev. 87) and references therein. There are scales (because it is in the best interest of the insurance industry to create such objective scales) characterizing severity of injury, from "emotional only" (fright) through "permanent minor" (loss of fingers), "permanent grave" (quadraplegia) and finally "death" (death), with 9 points along the way. I suggest that a discussion of objectiveness in damage awards start from an informed basis, relating actual principle of law and actual practice, to see if there is a specific problem that can be addressed.

[JMeganSnow]

That sounds good, David, although I disagree that "emotional only" belongs on the table. No one can predict or control someone else's emotions. If I show my pet snake to a friend that is a reptile-phile, and then show it to my other friend who has a snake phobia I didn't know about, how can I be held liable for some kind of damages in the latter case? He's not hurt, he just hyperventilated and made himself pass out.

There's some room for argument when an emotional response results in some kind of physical damage, such as if I startle my friend with a snake and he jumps off the roof, breaking his leg. I can see *partial* liability in those cases, but the *majority* of it still belongs with the overreacting twerp. But strictly emotional or psychological damage with no physical component (I consider financial damage to be a physical component, this isn't a screed against IP) is 100% non-objective and has no place in a court of law.

[Robert J. Kolker]

If someone has inflicted pain and suffering on you, why are you in civil court?

The what separates a criminal act from a tort is mens rea (evil or guilty intention). Pain and suffering inflicted unintentionally is generally not dealt with as a criminal matter because evil intent is lacking. However for injuries resulting from egregious negligence criminal penalties are sometimes exacted.

If only results mattered and not intent then there would be no torts or every wrongdoing would be a tort.

Bob Kolker

[progressiveman1]

No one can predict or control someone else's emotions. If I show my pet snake to a friend that is a reptile-phile, and then show it to my other friend who has a snake phobia I didn't know about, how can I be held liable for some kind of damages in the latter case?

Intent to frighten or negligence would have to be proven, and it probably couldn't be in this case.

[DavidOdden]

That sounds good, David, although I disagree that "emotional only" belongs on the table. No one can predict or control someone else's emotions.

One response to the pain and suffering issue would be to drop that lowest level of harm, so that all damages for pain and suffering must be based on a visible injury to the body. One objection could be that this could make it possible to engage in vicious harassment of a person, with no recourse through lawsuit: this would point to the need for criminal prohibitions against such acts, that is, some forms of emotional-only pain and suffering ought to be addressed by criminal law. Criminal law is, in fact, predicated on the principle of predictability -- of saying "These specific acts are so clearly wrong that if you do them, you will be imprisoned", and thus harassing a person (playing Wagner operas at 3:00 in the morning outside his house, or Phillip Glass at any time of day), or waterboarding your neighbor, would properly be a crime.

It looks to me (definitely not the results of serious research) as though a lot of such cases come down to increasing the award for some other cause, or as a way of addressing the problem that criminal sanctions don't actually aid the victim. It would be interesting to look at cases of negligently inflicting just emotional distress, to see if this lowest category actually poses a problem for justice.

[JMeganSnow]

I don't think waterboarding your neighbor would *just* be inflicting emotional distress. How'd you get them tied down to the bench in the first place?!

When I mean *just* emotional distress, I mean that there is no physical involvement whatsoever, such as showing you a photo you don't like or telling you that your cat got run over by a car in a gruesome manner. I would say that this usually involves an element of surprise and/or tactlessness on the part of another person. I.e. you can't sue someone for being tactless.

Harrassment, on the other hand, does involve a physical rights-violation component: they're invading your space after you told them not to. If someone plays Wagner at 3:00 am once, that's not harassment. If you ask them politely to stop and they keep doing it, that IS harassment. You've set the boundaries and they're intentionally impinging on your property/person in a way you have stated is undesirable.

[DavidOdden]

When I mean *just* emotional distress, I mean that there is no physical involvement whatsoever, such as showing you a photo you don't like or telling you that your cat got run over by a car in a gruesome manner.

I agree in that assessment, and would simply like to point out that the aforereferetdto insurance industry scale goes from "no physical damage" to "some (minor, temporary) physical damage" (scrapes etc), so the lowest category could and should be differentiated into "emotional damage with no contact" vs. "emotional damage with contact". I've been thinking about the "low" end of the pain and suffering scale and it seems to me that all valid cases of that nature involve actual physical damage, or else a rights violation that could be addressed in criminal law save for the lack of a specific statute plus the fact that criminal law provides no remedy for the victim. But I may not be being creative enough in thinking about possible cases. We'll see.

[agrippa1]

I'll take a stab at it, although I'm not highly knowledgable with the details of law.

The courts should be a place of objectivity, with as little subjectiveness in rulings as possible. Things like property damage, medical bills, loss of work, can usually be decided with little or no subjective reasoning at all. However, rulings on "pain and suffering" would have to be significantly subjective because it would be based on a psychological state and not numbers(money). That's why I think courts should only award money strictly for objective and monetary damages.

This is an interesting problem. A loss is incurred for negligent behavior, so the compensation is an attempt to fairly distribute that loss between the perpetrator and the victim. I say that because it certainly can't be intended to be a fair compensation for the victim's loss, to the point where the victim would willingly incur the same loss for the given compensation (that is, make a value profit on the exchange). In contrast to typical market exchanges which necessarily provide both sides with a value profit, the compensation here should be intended to balance, as fairly as possible, the loss of the "exchange."

The problem is that with market exchanges, the value judgments that determine mutual profit are subjective, that is the seller must value the buyer's money more than the product, and the buyer must value the product more than the money, else the exchange will not happen (assuming no force). Here the "exchange" (or at least half of it) is a fait accompli, and it is up to the court to determine how much the victim "values" his loss, as well as how much the perpetrator will value the loss of the penalty amount. Trying to balance those is necessarily a subjective process (and that's not even counting the additional loss to both sides incurred by legal counsel).

I don't know that you can get around requiring a rational evaluation of the specific circumstances, including to some extent the subjective values to each side.

Edited December 21, 2007 by agrippa1