CHAPTER 14

DAMAGES

T.P.I. - Civil

Number

A. Tort Damages

Compensatory Damages	14.01

(1.) Personal Injury

Medical Bill Presumption	14.12

Aggravation of Pre-Existing Condition	14.14

Loss of Business Profits	14.15

Negligent Infliction of Severe or Serious Emotional Injury	14.17

Personal Injury - Spouse	14.20

Injury to Minor - Suit by Parents and Minor	14.25

Minor's Damages	14.26

Parents' Damages	14.27

(2.) Wrongful Death

Wrongful Death	14.30

Present Cash Value - Wrongful Death	14.31

(3.) Damage to Personal Property

Damage to Personal Property	14.40

Repair Bill - Presumption	14.41

Personal Property - Lost or Destroyed	14.42

Loss of Use	14.43

(4.) Damage to Real Property

Damage to Real Property	14.45

B. Miscellaneous Damage Instructions

Determining Future Damages Without Speculation	14.50

Personal Injury - Duty to Mitigate	14.51

Property Damage - Duty to Mitigate	14.52

Life Expectancy	14.53

Meaning of Present Cash Value	14.54

Punitive Damages	14.55

Punitive Damages - Amount	14.56

C. Contract - Warranty - Sale of Goods

Introduction	14.60

Buyer's Damages for Nondelivery or Rejection	14.61

Buyer's Incidental Damages	14.62

Buyer's Consequential Damages	14.63

Buyer's Damages for Breach in Regard to Accepted Goods - Diminished Value	14.64

Seller's Incidental Damages	14.65

Seller's Damages on Resale of Goods	14.66

Seller's Damages for Non-Acceptance or Repudiation of Goods	14.67

Seller's Damages for the Price of Goods	14.68

D. Contracts Generally

Contracts Generally	14.70

Contracts - Wrongful Sale After Repossession	14.71

T.P.I. - CIVIL 14.01

COMPENSATORY DAMAGES

If, under the Court's instructions, you find that the plaintiff is entitled to damages, then you must award plaintiff damages that will reasonably compensate the plaintiff for claimed loss or harm which has been proven by a preponderance of the evidence, provided you also find it was or will be suffered by the plaintiff and was legally caused by the act or omission [or condition] upon which you base your finding of liability.

Each of these elements of damage is separate. You may not duplicate damages for any element by also including that same loss or harm in another element of damage. In determining the amount of damages, you should consider the following elements:

Medical expenses. Medical expenses are the cost of medical care, services and supplies reasonably required and actually given in the treatment of the plaintiff as shown by the evidence [and the present cash value of similar services likely to be required in the future.]

Loss of earning capacity. Loss of earning capacity is the value of earning capacity that has been lost in the past [and the present cash value of lost earning capacity that is likely to be lost in the future] as a result of the injury in question.

It is not the loss of time or actual earnings that make up this item of damages, but the loss of the ability to earn. There may be a loss of earning capacity even though there has been no loss of earnings [and even though the plaintiff made more money after the accident than before.] The loss of the ability to earn money may include, but is not limited to, actual loss of income.

In deciding what, if any, award should be made for loss of the ability to earn, you should consider any evidence of plaintiff's earning capacity, including, among other things, the plaintiff's health, age, character, occupation, past earnings, intelligence, skill, talents, experience and record of employment.

Physical pain and mental suffering. Physical pain and suffering is reasonable compensation for any physical pain and suffering, physical and mental discomfort suffered by the plaintiff, [and the present cash value for pain and suffering likely to be experienced in the future.] Mental suffering includes anguish, grief, shame, or worry.

Permanent Injury. A permanent injury is an injury that the plaintiff must live with for the rest of the plaintiff's life that may result in inconvenience or the loss of physical vigor. Damages for permanent injury may be awarded whether or not it causes any pain or inconvenience.

Disfigurement. Disfigurement is a specific type of permanent injury that impairs a person's beauty, symmetry or appearance.

Loss of enjoyment of life: Loss of the enjoyment of life takes into account the loss of the normal enjoyments and pleasures in life in the future as well as limitations on the person's lifestyle resulting from the injury.

Pain and suffering, permanent injury, disfigurement, and loss of enjoyment of life are separate types of losses. A plaintiff is entitled to recover for these losses if the plaintiff proves by a preponderance of the evidence that each was caused by the defendant's fault.

No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for pain and suffering, permanent injury, disfigurement, and loss of enjoyment of life. Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for pain and suffering, loss of enjoyment of life, and/or permanent injury, you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in light of the evidence.

T.P.I. - CIVIL 14.12

MEDICAL BILL PRESUMPTION

[In this case, some medical bills have been introduced in evidence. Because these bills do not exceed [a certain sum established by law], you shall presume these expenses were reasonable and necessary].

T.P.I. - CIVIL 14.14

AGGRAVATION OF PRE-EXISTING CONDITION

A person who has a condition or disability at the time of an injury is entitled to recover damages only for any aggravation of the pre-existing condition. Recovery is allowed even if the pre-existing condition made plaintiff more likely to be injured and even if a normal, healthy person would not have suffered substantial injury.

A plaintiff with a pre-existing condition may recover damages only for any additional injury or harm resulting from the fault you may have found in this case.

If you find that defendant's fault aggravated plaintiff's pre-
existing condition you must apportion the amount of disability and pain between that caused by the pre-existing condition and that caused by the incident. If, however, you find that defendant's fault aggravated plaintiff's pre-existing condition and you find that plaintiff's pre-existing condition had caused plaintiff no harm, pain or suffering before this incident, [or if you find that the defendant's fault makes it impossible to apportion the amount of disability or pain that pre-existed the incident], then defendant is responsible for all harm caused by the incident even though it is greater because of the pre-existing condition than it might otherwise have been.

T.P.I. - CIVIL 14.15

LOSS OF BUSINESS PROFITS

A plaintiff who is in a personal business may recover damages for profits lost as a direct result of plaintiff's inability, because of injury, to devote personal skill, talent or ability to the business. It must appear that plaintiff's personal services were [are] necessary to the business and that loss has resulted [will result] from plaintiff's absence. If plaintiff's services were [are] replaceable, the measure of damages would be the cost of hiring a substitute.

T.P.I. - CIVIL 14.17

NEGLIGENT INFLICTION OF SEVERE

OR SERIOUS EMOTIONAL INJURY

Reasonable compensation for serious or severe emotional injury suffered by the plaintiff and legally caused by the defendant's conduct. A serious or severe emotional injury occurs when a reasonable person, normally constituted, would be unable to adequately cope with the mental stress caused and brought about by the circumstances of the case. [Such serious or severe emotional injury must be supported by expert medical or scientific proof.]

There is no mathematical formula for computing reasonable compensation for negligent infliction of serious or severe emotional injury, nor is the opinion of any witness required as to the amount of such compensation.

In making an award for such damages, you must use your best judgment and establish an amount of damages that is fair and reasonable in light of the evidence before you.

T.P.I. - CIVIL 14.20

PERSONAL INJURY - SPOUSE

If, in accordance with these instructions, you are to determine damages for the plaintiff (injured spouse) you should also determine the damages for the plaintiff (other spouse) . (other spouse) would be entitled to recover the following elements of damage if established by the evidence:

1.	The reasonable value of medical care, services and supplies reasonably required and actually given in the treatment of the spouse;

2.	Expenses reasonably incurred in attending the spouse in the hospital;

3.	The reasonable value of the injured spouse's services this plaintiff has lost [and the present cash value of such services plaintiff is reasonably certain to lose in the future;] and

4.	The reasonable value of the spouse's companionship and acts of love and affection this plaintiff has lost [and the present cash value of such acts plaintiff is reasonably certain to lose in the future] but would have received in the usual course of the parties' married life.

T.P.I. - CIVIL 14.25

INJURY TO MINOR

SUIT BY PARENTS AND MINOR

This lawsuit involves two separate claims. First is a claim by

(minor) for damages for injuries. The second claim is by

(minor's parent[s]) for medical expenses incurred [and for loss of the earnings and services of the minor during minority].

If, in accordance with these instructions, you are to determine the amount of damages sustained by the minor, ___________, and the parent[s] ___________, you should fix an amount for each of the following elements of loss or harm provided it was or will be suffered by the minor or the parent[s] and legally resulted from the fault you have assigned.

[Here list elements of damage set out in T.P.I. - CIVIL - 14.26 & 14.27.]

T.P.I. - CIVIL 14.26

MINOR'S DAMAGES

The minor's damages shall include:

1.	[insert the general instruction for physical pain and mental suffering - T.P.I. - CIVIL 14.01];

2.	The present cash value of the earning capacity that will be lost after the minor becomes 18 years of age;

3. Medical expenses actually paid or incurred by the minor; and

4.	The present cash value of any medical care and treatment reasonably certain to be required in the future.

T.P.I. - CIVIL 14.27

PARENTS' DAMAGES

The amount of the award to the parent[s] shall include:

1.	The cost of medical [hospital, nursing] services and supplies reasonably required and actually incurred in the treatment of the minor;

2.	Monetary loss, if any, actually suffered or reasonably certain to be suffered in the future by the parent[s] because of the loss of the minor's services that would have been performed prior to the child's 18th birthday; and

3.	Loss of the minor's earnings, if any, actually suffered or reasonably certain to be suffered in the future by the parent[s] prior to the child's 18th birthday as a result of the minor's inability to pursue an occupation or employment.

T.P.I. - CIVIL 14.30

WRONGFUL DEATH

In this case, suit has been brought for damages alleging the death of

(deceased) was caused by the fault of the defendant. If you decide to award damages, there are two classes of damages you may consider:

First, those damages sustained immediately by the injured party including compensation for the following:

1.	The mental and physical suffering actually endured by the injured party between the injury and death;

2.	Medical expenses necessitated by the injury, including expenditures for doctors, nurses, hospital care, medicine and drugs;

3.	Reasonable funeral expenses; and

4.	Loss of earning capacity during the period from injury to death.

You may not speculate as to whether conscious pain and suffering actually did exist between the injury and death. If, however, you find that there was such pain and suffering prior to death, you must award damages for it.

The second class of damages that may be awarded is the present cash value of the pecuniary value of the life of the deceased. In determining this value, you should take into consideration the following factors:

1. The age of the deceased;

2. The condition of health of the deceased;

3. The life expectancy of the deceased;

4.	The strength and capacity of the deceased for work and for earning money through skill in any art, trade, profession, occupation, or business;

5.	The personal habits of the deceased as to sobriety and industry; and

6.	The reasonable value of the loss of consortium suffered by the [wife] [and] [children] of the deceased.

"Consortium" is a legal term consisting of several elements. It includes both tangible services provided by a family member, as well as intangible benefits each family member receives from the continued existence of other family members. Such intangible benefits include love, affection, attention, education, guidance, care, protection, training, companionship and cooperation [and, in the case of a spouse, sexual relations] that the [wife] [and] [children] would reasonably be certain to have received during the life of the deceased.

[In determining whether to award damages for loss of consortium for the death of a parent, you should consider the age of the [child] [children], closeness of relationship, dependence and any other factors that reflect upon the relationship between parent and child.]

[In determining whether to award damages for loss of consortium for the death of a child, you should consider the age of the deceased and the [parent(s)], closeness of the relationship, dependence and any other factors that reflect upon the relationship between the deceased and the [parent(s)].]

In weighing these factors, you should consider the fact that expectancy of life is, at most, a probability based upon experience and statistics. You should be mindful of the possibility that the earnings of an individual are not always uniform over a period of time. You should consider not only the most optimistic expectations of the future, but also the most pessimistic, and all of the uncertainties between the extremes.

Finally, when determining the amount of damages based upon life expectancy and earning capacity, you should deduct the present cash value of the deceased's living expenses had the deceased lived. These living expenses are those that under the deceased's standard of living would have been reasonably necessary to keep the deceased in such a condition of health and well-being as to maintain the capacity to earn money.

T.P.I. - CIVIL 14.31

PRESENT CASH VALUE - WRONGFUL DEATH

I have used the expression "present cash value" in these instructions concerning damages for certain losses that may be awarded in this case.

In determining the pecuniary value of the life of [ ( deceased) ], you must adjust the award to allow for the reasonable earning power of money and the impact of inflation.

"Present cash value" means the sum of money needed now, which when added to what that sum that may reasonably be expected to earn in the future when invested, would equal the amount of damages at the time in the future when the earnings would have been received, living expenses incurred and the loss of consortium experienced. You should also consider the impact of inflation, its impact on wages and its impact on purchasing power in determining the present cash value of future damages.

T.P.I. - CIVIL 14.40

DAMAGE TO PERSONAL PROPERTY

The measure of damage to personal property is as follows:

If the damages have been repaired or the property is capable of repair so that the three factors of function, appearance, and value have been or will be restored to substantially the same value as before the incident, then the measure of damages is the reasonable cost of repairs necessary for the restoration plus any loss of use pending the repairs.

If [the damages have not been repaired] [the property is not capable of repair] so as to restore function, appearance, and value as they were immediately before the incident, then the measure of damages is the difference in the fair market value of the property immediately before the incident and immediately after the incident.

T.P.I. - CIVIL 14.41

REPAIR BILL PRESUMPTION

In this case, some repair bills have been introduced in evidence. If you find that the bills were incurred and paid to repair the damaged property, to the extent the bills do not exceed the sum of One Thousand Dollars ($1,000), there is a legal presumption that these expenses were reasonable and were necessary for the restoration of the property.

T.P.I. - CIVIL 14.42

PERSONAL PROPERTY - LOST OR DESTROYED

The measure of damages for personal property either lost or destroyed is the fair market value of such property at the time and place of its loss or destruction.

T.P.I. - CIVIL 14.43

LOSS OF USE

The measure of damages for loss of use is reasonable compensation to the plaintiff for being deprived of the use of the [automobile] [property] during the time reasonably necessary for repair of the damage caused by the incident. In determining this amount, you may consider the reasonable rental cost of an [automobile] [property] for that period of time and the use or lack of use the plaintiff would have made of it except for the incident.

T.P.I. - CIVIL 14.45

DAMAGE TO REAL PROPERTY

The measure of damage to real property is the lesser of the following amounts:

1. The reasonable cost of repairing the damage to the property; or

2.	The difference between the fair market value of the premises immediately prior to and immediately after the damage.

T.P.I. - CIVIL 14.50

DETERMINING FUTURE DAMAGES WITHOUT SPECULATION

If you are to determine a party's damages, you must compensate that party for loss or harm that is reasonably certain to be suffered in the future as a result of the injury in question. You may not include speculative damages, which is compensation for future loss or harm that, although possible, is conjectural or not reasonably certain.

T.P.I. - CIVIL 14.51

PERSONAL INJURY

DUTY TO MITIGATE

A person who has been injured has the duty to mitigate damages by using reasonable diligence in caring for an injury and employing reasonable means to accomplish healing. When one does not use reasonable diligence to care for injuries and they are aggravated as a result of that failure, the damages you determine must be limited to the amount of damage that would have been suffered had the injured person used the diligence required.

[The mere fact that a competent physician advised an injured person to submit to a course of treatment or surgery does not require you to conclude that the injured person was negligent or unreasonable in declining that treatment or surgery. Other factors confronting the injured person must be considered in determining whether, although refusing to follow a physician's advice, the person nevertheless used reasonable diligence in caring for the injuries.]

T.P.I. - CIVIL 14.52

PROPERTY DAMAGE

DUTY TO MITIGATE

A person whose property has been damaged by the wrongful act of another is bound to use reasonable care to avoid loss and to minimize damages. A party may not recover for losses that could have been prevented by reasonable efforts or by expenditures that might reasonably have been made.

T.P.I. - CIVIL 14.53

LIFE EXPECTANCY

The life expectancy read to you is not conclusive but is an average life expectancy of persons who have reached a certain age. You should be aware that many persons live longer, and many die sooner, than the average. This figure may be considered by you in connection with other evidence relating to the probable life expectancy of [plaintiff] [deceased] including evidence of the [plaintiff's] [deceased's] health, occupation, habits and other activities.

T.P.I. - CIVIL 14.54

MEANING OF PRESENT CASH VALUE

I have used the expression "present cash value" in these instructions concerning damages for future losses that may be awarded to the plaintiff.

In determining the damages arising in the future, you must determine the present cash value of those damages. That is, you must adjust the award of those damages to allow for the reasonable earning power of money and the impact of inflation.

"Present cash value" means the sum of money needed now which, when added to what that sum may reasonably be expected to earn in the future when invested, would equal the amount of damages, expenses, or earnings at the time in the future when the damages from the injury will be suffered, or the expenses must be paid, or the earnings would have been received. You should also consider the impact of inflation, its impact on wages, and its impact on purchasing power in determining the present cash value of future damages.

T.P.I. - CIVIL 14.55

PUNITIVE DAMAGES

Plaintiff has asked that you make an award of punitive damages, but this award may be made only under the following circumstances. You may consider an award of punitive damages only if you find that the plaintiff has suffered actual damage as a legal result of the defendant's fault and you have made an award for compensatory damages.

The purpose of punitive damages is not to further compensate the plaintiff but to punish a wrongdoer and deter others from committing similar wrongs in the future. Punitive damages may be considered if, and only if, the plaintiff has shown by clear and convincing evidence that a defendant has acted either intentionally, recklessly, maliciously, or fraudulently.

Clear and convincing evidence is a different and higher standard than preponderance of the evidence. It means that the defendant's wrong, if any, must be so clearly shown that there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.

A person acts intentionally when it is the person's purpose or desire to do a wrongful act or to cause the result.

A person acts recklessly when the person is aware of, but consciously disregards a substantial and unjustifiable risk of injury or damage to another. Disregarding the risk must be a gross deviation from the standard of care that an ordinary person would use under all the circumstances.

A person acts maliciously when the person is motivated by ill will, hatred or personal spite.

A person acts fraudulently when: (1) the person intentionally either misrepresents an existing material fact or causes a false impression of an existing material fact to mislead or to obtain an unfair or undue advantage; and (2) another person suffers injury or loss because of reasonable reliance upon that representation.

If you decide to award punitive damages, you will not assess an amount of punitive damages at this time. You will, however, report your finding to the court.

T.P.I. - CIVIL 14.56

PUNITIVE DAMAGES	AMOUNT

You have decided that the plaintiff is entitled to punitive damages. You must now decide the amount of those damages. The plaintiff has the burden of proving by a preponderance of the evidence the amount of punitive damages that you should award.

In making your decision you must consider the instructions I have already given you and also the following:

1.	The defendant's net worth and financial condition;

2.	The objectionable nature of the defendant's wrongdoing, the impact of the defendant's conduct on the plaintiff, and the relationship of the parties;

3.	The defendant's awareness of the amount of harm being caused and the defendant's motivation in causing the harm;

4.	The duration of the defendant's misconduct and whether the defendant attempted to conceal the conduct;

5.	The amount of money the plaintiff has spent in the attempt to recover the losses;

6.	Whether defendant profited from the activity, and if so, whether the punitive award should be in excess of the profit in order to deter similar future behavior;

7.	The number and amount of previous punitive damage awards against the defendant based upon the same wrongful act;

8.	Whether, once the misconduct became known to the defendant, the defendant tried to remedy the situation or offered a prompt and fair settlement for the actual harm caused; and

9.	Any other circumstances shown by the evidence that bears on determining the proper amount of the punitive award.

You have already awarded the plaintiff compensatory damages for the purpose of making the plaintiff whole. The purpose of an award for punitive damages is to punish a wrongdoer and to deter misconduct by the defendant or others.

T.P.I. - CIVIL 14.60

INTRODUCTION

If you find the plaintiff is entitled to a verdict against the defendant for breach of a contract or warranty, you must award damages in an amount that will reasonably compensate the plaintiff for each of the following elements of claimed loss or harm, provided you find it was [or will be] suffered by the plaintiff as a result of the defendant's breach. The amount of such award shall include:

T.P.I. - CIVIL 14.61

BUYER'S DAMAGES FOR NONDELIVERY

OR REJECTION

Any portion of the purchase price that has been paid and either of the following: (a) if the buyer purchased substitute goods without unreasonable delay, the amount of money in excess of the contract price that the buyer was reasonably and in good faith required to spend to purchase the substitute goods; or, (b) if substitute goods were not purchased within a reasonable time, the difference between the market price at the time the buyer learned of the breach and the contract price, less any expenses saved by the buyer because of the seller's breach.

T.P.I. - CIVIL 14.62

BUYER'S INCIDENTAL DAMAGES

Any expenses reasonably incurred by the buyer in the inspection, receipt, transportation, care and custody of goods that were rightfully rejected.

Any commercially reasonable charges, expenses or commissions incurred in connection with having made, in good faith and without undue delay, any reasonable purchase of or contract to purchase substitute goods.

T.P.I. - CIVIL 14.63

BUYER'S CONSEQUENTIAL DAMAGES

Any loss resulting to the buyer from requirements and needs known to the seller at the time of contracting provided the loss could not have been prevented by the buyer having timely purchased or contracted to purchase substitute goods.

Injury to a person or property resulting from any breach of warranty.

T.P.I. - CIVIL 14.64

BUYER'S DAMAGES FOR BREACH IN REGARD

TO ACCEPTED GOODS - DIMINISHED VALUE

The difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted.

T.P.I. - CIVIL 14.65

SELLER'S INCIDENTAL DAMAGES

Any reasonable charges, expenses or commissions incurred by the seller in stopping delivery of the goods, or in the transportation, care and custody of returned or resold goods together with any other expenses reasonably resulting from the buyer's breach.

T.P.I. - CIVIL 14.66

SELLER'S DAMAGES ON RESALE OF GOODS

Where goods have been resold in good faith and in a commercially reasonable manner, the amount by which the resale price is less than the contract price less any costs saved due to the breach of contract.

T.P.I. - CIVIL 14.67

SELLER'S DAMAGES FOR NON-ACCEPTANCE

OR REPUDIATION OF GOODS

The greater of the following: (a) the amount by which the contract price of any goods [that were not accepted] [whose purchase was repudiated] exceeded the market price at the time and place delivery was to have been made, less expenses saved by the seller due to the breach of contract; or (b) the profit, including reasonable overhead, that the seller would have made had the contract been fully performed. The buyer is to receive credit against either amount for any payments made on the contract and for the proceeds of any resale of the goods.

T.P.I. - CIVIL 14.68

SELLER'S DAMAGES FOR THE PRICE

OF GOODS

The price of goods [that were accepted by the buyer] [that conformed to the contract and were lost or damaged after the risk of loss had passed to the buyer] [or] [that were identified to the contract and for which the seller was not able to obtain a fair price after a reasonable effort to resell them or the circumstances indicated such an effort would be useless.]

T.P.I. - CIVIL 14.70

CONTRACTS GENERALLY

When a contract is breached, the plaintiff is entitled to be placed in as good a position as would have been occupied had the contract been fulfilled in accordance with its terms. The plaintiff is not entitled to be put in a better position by a recovery of damages for breach of contract than would have been realized had there been full performance. The damages to be awarded are those that may fairly and reasonably be considered as arising out of the breach or those that may reasonably have been in the contemplation of the parties when the contract was made. Damages that are remote or speculative may not be awarded.

T.P.I. - CIVIL 14.71

CONTRACTS

WRONGFUL SALE AFTER REPOSSESSION

If you find the sale of the (secured property) was not according to law, you will then determine the amount of damages to be awarded the plaintiff. Those damages shall include (a) (for equipment) the amount the fair market value of the (equipment) at the time of repossession exceeded the greater of the actual sales price of the (equipment) or the total amount still due on the (equipment) , and any other loss suffered by plaintiff as a direct result of defendant's failure to follow the law. (b) (for consumer goods) any loss caused by defendant's failure to follow the law but not less than the credit service charge plus 10% of the principal amount of the debt or the time price differential plus 10% of the cash price.