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Measuring Damages for Lost Enjoyment of Life: The View From the Bench and the Jury Box

NCJ Number
199246
Journal
Law and Human Behavior Volume: 27 Issue: 1 Dated: February 2003 Pages: 53-68
Author(s)
Susan Poser; Brian H. Bornstein; E. Kiernan McGorty
Date Published
February 2003
Length
16 pages
Annotation
This article discusses the case law and a jury simulation experiment on loss of enjoyment of life (LEL), an element of non-economic damage in civil litigation.
Abstract
Although there are numerous categories of emotional distress damages in personal injury cases, the two main categories are pain and suffering, and LEL. Pain and suffering is usually associated with feelings of physical pain, as well as anxiety, depression, worry, fright, grief, and humiliation. LEL damages are intended to compensate “for the limitations of the person’s life created by the injury,” including normal daily activities, special interests, and hobbies previously enjoyed. Case law on LEL states that there is a common assumption that the overall monetary award for non-economic harm will be higher if damages for pain and suffering and damages for LEL are treated by the jury as separate elements, leading to separate compartmentalized damage awards. Courts that have treated LEL and pain and suffering as one element of damages usually justify this decision as the only way to avoid duplication of damages. Assumptions about the effect of allowing LEL damages were tested by comparing jury awards under three different approaches: allowing LEL as a separate category of non-economic damages, distinct from pain and suffering; describing LEL and pain and suffering separately to the jury, but asking the jury to make a single award for non-economic damages; and making no distinction between these types of damages in the jury instructions and asking the jury to make a single lump-sum award. It was found that distinguishing between LEL and pain and suffering did not invariably lead to higher damage awards than instructing mock jurors on pain and suffering alone. However, distinguishing between LEL and pain and suffering conceptually and requiring mock jurors to make separate awards for these two elements of non-economic damages did lead to higher awards. The concept of LEL, in and of itself, did not appear to affect awards, but requiring a separate judgement for LEL did. Whether or not higher awards in circumstances where plaintiffs have suffered significant non-economic injury are desirable is a normative question that the present data cannot answer. 1 table, 10 footnotes, 62 references