13.4 Tort Remedies: Damages and Injunctions

When a tort is complete and not barred, the question is what the court will award. The PCCE blueprint groups economic damages, non-economic damages, punitive damages, and injunctions. Add nominal damages, mitigation, and the statutory pair wrongful death versus survival. Tort law's ordinary goal is compensation. Punishment is extra and narrow. An injunction is for a wrong that money will not stop.

Remedies are not a substitute for elements. A perfect damages model does not rescue a negligence claim with no duty, and a TRO does not replace proof of a continuing trespass or nuisance. Build the cause of action first (sections 13.1–13.3), then pick the remedy.

Economic (pecuniary / special) damages

Economic damages are out-of-pocket and reasonably monetizable losses. They are sometimes called specials because they can be itemized.

• Medical expenses. Past bills and reasonably certain future care: surgery, rehabilitation, attendant care, medications, medical mileage, vocational rehabilitation. The modern fight is often reasonable value, not the full chargemaster sticker. The forum's collateral-source statute (section 13.3) controls whether insurance write-offs and billed-versus-paid discounts come into evidence. Do not assume the first bill in the file is the recoverable number.
• Lost earnings and lost earning capacity. Wages already missed, and the reduction in the ability to earn over a work-life expectancy. A child, a student, or an unemployed plaintiff can still claim loss of earning capacity; the claim is not limited to a current paycheck. Economists use work-life tables, fringe benefits, and discounting to present value. Future medicals and future earnings are typically reduced to today's dollars; do not add an undiscounted lifetime stream to a settlement memo as if it were the verdict number.
• Property damage. Diminution in market value or reasonable cost of repair, plus loss of use. For a total loss, fair market value immediately before the tort minus salvage. Repair that exceeds pre-tort value is often capped at diminution, except where a personal item has a recognized repair-value exception the stem supplies.
• Other pecuniary loss: household services the plaintiff can no longer perform, replacement care for dependents, and some funeral expenses when the right statutory action is in play.

Economic damages must be proved with reasonable certainty. Speculation is not enough. The treating-provider file, employment records, and — when the numbers are large — an economist or life-care planner usually carry this category. A new business's lost profits are harder than a W-2 employee's documented wage loss; that is a proof problem, not a different legal category.

Non-economic (general) damages

Non-economic damages compensate human harm that has no invoice:

• Pain and suffering — physical pain, past and future
• Mental anguish — anxiety, depression, humiliation, fear, loss of enjoyment of life (hedonic loss is usually a subset or sibling of this category, not a third compensatory pot that stacks the same distress three times)
• Disfigurement and physical impairment
• Loss of consortium — in many jurisdictions a separate, derivative claim by a spouse (and in a few states a child or parent) for lost companionship, society, and services

Some states cap non-economic damages, especially in medical malpractice. A national exam will not invent a dollar cap. It will ask you to classify. Pain is not "economic" just because a jury must pick a number. Future surgery that has a bill attached is economic. The scar and the embarrassment of the scar are non-economic. Put each item in one column; do not double-count the same harm as a medical bill and as "economic pain."

Punitive damages

Punitive (exemplary) damages punish and deter. They are not awarded for ordinary negligence. The typical triggers are willful, wanton, malicious, or reckless conduct, or an intentional tort committed with malice or oppression. A distracted driver who rear-ends someone is ordinary negligence — compensatory only. A drunk driver who has been warned, a company that hid a known deadly defect, or a defendant who battered the plaintiff out of spite is in the punitive conversation.

Federal due process limits grossly excessive punitive awards (BMW of North America, Inc. v. Gore; State Farm Mutual Automobile Insurance Co. v. Campbell): reprehensibility of the conduct; the ratio to compensatory damages, with single-digit ratios as the usual guide; and comparable civil penalties. Many states require proof by clear and convincing evidence, and some cap punitives or split them with the state. The paralegal's job at intake is to spot whether the file alleges more than carelessness. Do not plead punitives on a simple rear-end as a negotiation tactic the blueprint will reward. Do not treat punitives as a substitute for missing compensatory proof.

Nominal damages

Nominal damages are a token sum — classically six cents or one dollar — that vindicate a right when no actual loss is proved. They matter for intentional invasion torts that do not require harm: battery, trespass to land, some dignitary torts. A surveyor who steps across the line without cracking a tile can still owe nominal damages, and egregious trespass can still support punitives on top of the token award.

Nominal damages do not save a negligence claim. Negligence requires actual damages as an element (section 13.1). A near-miss is still a near-miss. If the stem is negligence and the plaintiff was not hurt, the answer is "no claim," not "nominal damages."

Injunctions

An injunction is an equitable order to do or to stop doing something. Tort files use injunctions for continuing or threatened wrongs that money cannot adequately remedy: a continuing trespass or nuisance; a threatened trade-secret dump; harassment that will repeat; a factory that is still discharging.

Conceptually three stages:

• Temporary restraining order (TRO). Very short. Often issued ex parte to preserve the status quo until a hearing can be held. The applicant typically must show immediate irreparable harm and, in federal practice, why notice should not be required (FRCP 65). A bond is commonly required to protect the restrained party if the order was wrong.
• Preliminary injunction. After notice and a hearing, lasting through trial. Classic factors: likelihood of success on the merits; irreparable harm; balance of equities; public interest. This is the order that actually holds the parties in place for months.
• Permanent injunction. Entered after a decision on the merits, when the legal remedy is inadequate and the balance of hardships favors an ongoing order. It is not a TRO that simply aged; it is a different finding after liability is decided.

Equity is discretionary. Unclean hands, laches, and an adequate legal remedy defeat injunctive relief. An injunction is not a substitute for damages already suffered. A plaintiff may obtain both an injunction against future dumping and damages for past contamination. Courts will not use an injunction to compel personal services or to restrain lawful competition without a recognized tort (trade secrets, a valid noncompete the forum will enforce — those are neighboring files, not a free-floating "stop them" button).

Mitigation

The injured party must take reasonable steps to mitigate damages: follow reasonable medical advice, seek comparable work, authorize reasonable repairs, accept a commercially reasonable repair or replacement. Failure to mitigate reduces recovery by the avoidable amount. It does not forfeit the lawsuit. The defendant has the burden to prove an unreasonable failure to mitigate. A plaintiff need not submit to risky surgery, take a humiliating or substantially inferior job, or deal with the tortfeasor on degrading terms.

Mitigation is not comparative fault. Comparative fault is the plaintiff's role in causing the accident. Mitigation is the plaintiff's role in increasing the loss after the accident — skipping physical therapy, refusing a free repair, quitting a suitable light-duty job out of pique. A 0% at-fault plaintiff can still lose a slice of future medicals for an unreasonable refusal to treat. Keep the two reductions on separate lines of the damages worksheet.

Wrongful death versus survival

These are statutory and easy to confuse. They can both arise from the same fatal tort. They have different plaintiffs and different damage items.

A survival action is the decedent's own claim that survives death and is brought by the estate (or a personal representative). It recovers what the decedent could have recovered if the decedent had lived: the decedent's conscious pain and suffering, medical bills before death, lost earnings to the date of death, and sometimes punitive damages if the underlying tort would have supported them. It is as if the victim sued and then died. If the death was instantaneous and the jurisdiction requires conscious pain, the survival pain claim may be thin; the medicals and the wrongful-death claim may still be live.

A wrongful-death action is a new statutory claim for designated beneficiaries — typically a spouse, children, and sometimes parents or the estate — for their losses caused by the death: loss of financial support, loss of services, and in many states loss of companionship and society. It is not a claim for the decedent's pain. Recoverable elements are purely statutory. Funeral expenses are often placed here or in a specified statutory bucket; follow the stem.

Do not put the decedent's pre-death medical bills in the wrongful-death column. Do not put the widow's loss of support in the survival column. Limitations periods may differ. Settlement of one action does not automatically settle the other unless the releases say so. The paralegal opens two statutory files, even when one collision produced both.

Putting the remedy file together

1. Confirm a complete tort — or a dignitary intentional tort that can stand on nominal damages.
2. Build economic specials with bills, wage records, and a future-care / earning-capacity plan, discounted as the forum requires.
3. Separate non-economic human harm. Never relabel pain as a medical bill.
4. Ask whether the conduct is more than ordinary negligence before adding a punitive count, and remember due-process ratio talk is a later briefing issue, not a reason to skip the willful/wanton trigger.
5. If the wrong is continuing or threatened, evaluate TRO / preliminary / permanent injunctive relief and the bond.
6. Reduce by mitigation failures and, under the forum's system, by comparative fault (section 13.3). Keep those reductions distinct.
7. If the victim died, open survival (estate / decedent's own losses) and wrongful death (beneficiaries' losses). Check both clocks.
8. Run the insurance and lien list from section 13.3 before anyone promises a net number.

Worked path. A factory hides a known machine-guard defect. A worker loses two fingers, incurs $180,000 in medical bills, cannot return to skilled work, lives with disfigurement and chronic pain, and later dies from an infection related to the injury. Economic damages: the $180,000 and lost earning capacity. Non-economic damages: pain, mental anguish, disfigurement. Punitive damages: the concealment is willful or wanton, not ordinary negligence. After death, the survival action carries the decedent's pre-death medicals, earnings to death, and conscious pain; the wrongful-death action carries the family's loss of support and companionship. If the same factory is still running the unguarded line, a preliminary injunction and, after judgment, a permanent injunction may be the remedy that damages alone cannot supply. If the worker skipped prescribed therapy and the hand worsened for that reason, mitigation cuts the avoidable extra loss — it does not erase the factory's liability. If this was an on-the-job injury, remember section 13.3: workers' compensation may be the exclusive remedy against the employer, while the machine manufacturer remains a third-party products defendant and the comp carrier will assert subrogation against the products recovery.