Flansberg v. Paulson

¶1dissenting.

¶2It is obvious from our cases and from those in other jurisdictions that juries, fully instructed in the plaintiff’s right to damages in personal injury cases, frequently feel that an award of so-called special damages is by itself adequate to compensate the plaintiff for his entire loss.① Moreover, these reported cases undoubtedly constitute a very small portion of all the cases in which a jury awards only the amount of special damages sought. The fact that juries commonly make such an award despite the existence of obvious elements of “general” damages suggests, perhaps, that the rule forbidding such a practice (when it can be detected by the form of the verdict) ignores the realities of everyday life and should be re-examined.

¶3*619Nothing in the nature of things requires jurors or anyone else to conceive of personal injury damages in two forms, viz., general and special. The average juror apparently does not make this distinction but feels, rather, that his function is performed if he arrives at a figure which will compensate the plaintiff or punish the defendant (or accomplish that which jurors seek to accomplish by fixing an award).②

¶4The question presented by this appeal, and one which the majority does not attempt to answer, is whether or not the jury should be permitted to award a plaintiff damages equivalent to only his medical expenses, his loss of earnings, or both.

¶5It seems to be suggested that special damages are a form of consequential damages and that if the jury finds no basic damage there is no source from which consequential damages can flow. Certainly the plaintiff is not entitled to recover medical costs or loss of earnings unless he is injured. And so it is proper to say that such damages are a consequence of the injury.

¶6Precisely the same thing may be said about general damages — they too must be a consequence of the injury. But neither type of damages flows from the other; each measures a distinct type of invasion of the plaintiff’s interest. Recovery of damages for medical costs is allowed because defendant has impaired the plaintiff’s physical condition — his bodily integrity. The damages represent the cost of rehabilitating, as far as possible, the physical or bodily condition of the plaintiff. Recovery of damages for pain and suffering is allowed because defendant has caused pain and suffering by inflicting a physical impairment upon the plaintiff. If one of these must precede the other, it is *620more reasonable to say that the damages which the courts have denominated “special” should be regarded as precedent because pain and suffering flow from physical impairment rather than the converse.

¶7If the jury is to be criticized for returning a verdict for “special” damages in a certain amount and nothing as “general” damages, the ground of criticism should be not that the “special” damages lack a foundation or an antecedent, but that the jury has allowed nothing for pain and suffering or impairment of earning capacity. However, before the verdict would be subject to attack on this latter ground one would have to assume that the jury is required to find that pain and suffering or impairment of earning capacity was present in the case. In some of the cases the impropriety of the verdict allowing only special damages is explained on this ground, i.e., that nothing has been allowed for pain and suffering or impairment of earning capacity.③ Adopting this reasoning, if a verdict allowing special damages and no general damages is unacceptable, a verdict allowing general damages and no special damages should also be unacceptable. This should clearly be the result where, as in Mullins v. Rowe, 222 Or 519, 353 P2d 861 (1960), the jury has returned a verdict for general damages in the exact amount of the claim for special damages. In such a case it is obvious that the jury has identified the medical costs (and loss of earnings, if any) with the plaintiff’s injury, and by adopting the figure as the measure of general damages has tacitly recognized that such expenditures or losses were reasonably incurred. To say otherwise would be to put a strain on the coincidence too great for it to bear. If a verdict for general damages is good in the case just put, a verdict for *621■special damages -without general damages should also be good for the same reason.

¶8If we continue to insist that the jury think of plaintiff’s recovery in terms of general and special damages, there is of course a justification on theoretical grounds for the requirement that both types of damages must be allowed by the jury if proven. But if the jury returns a verdict awarding special damages and no general damages, it is possible that the jury has decided that the plaintiff did not suffer pain to an extent warranting compensation. The rule applied in the majority opinion seems to be based upon the assumption that pain and suffering is always preent in personal injury cases. It has also been assumed that where the jury does award something as general damages, the court is able to determine whether the amount awarded in fact represents general damages or is merely a “nominal” amount.

¶9The case of Van Lom v. Schneiderman, 187 Or 89, 210 P2d 461, 11 ALR2d 1195 (1949) holds that we cannot set a verdict aside on the ground that we regard it as excessive. Are we not equally bound by a verdict which we regard as being at the other end of the spectrum, i.e. where in our judgment it is inadequate? In the present case the majority opinion cites with approval cases holding that we can set the verdict aside for inadequacy. We have done this through the legal legerdemain of classifying the amounts at the bottom of the damage scale as “nominal” damages; we say that nominal damages are, in fact, no damages at all, as in the cases where the plaintiff is given nominal damages simply as a token to symbolize the invasion of his interest. But this explanation is less than satisfying when one remembers that in most personal injury cases the only thing the *622jury is attempting to measure under the heading of general damages is pain and suffering, an element of damages admittedly not measurable in money. If the jury awards $100 as general damages, we hold that this is not nominal.④ But suppose the award is $50. Is that enough? Or $25? Or $10? Are these substantial? How can we say that the jury gave less than enough to compensate the plaintiff for pain and suffering when there is no money equivalent for it?

¶10It seems to me that our treatment of this problem is unsatisfactory and that we should adopt a rule which is more in common with the way that juries actually measure damages in personal injury cases. The University of Chicago jury study seems to show that juries do not make nice calculations as to what should be allowed for the separate elements of damages as we have refined them, but rather they see the amount of the verdict as a unit not identified with its parts, in other words, in the form of a gestalt.⑤

¶11It appears from our previous cases that no matter how strongly the jury is admonished by the trial judge not to use the claim for special damages as the full measure of recovery, the jury tries to use it anyway by allocating a part of the .special damages to general damages.⑥ If the jury makes the right move in this game of numbers, the court can do nothing about it because in that event there is no way to detect how the jury reached its conclusion. I believe the records would show that no matter how hard the court tries to force the jury to reconsider its measurement of *623damages, the utimate result is pretty much the same. It does not appear, therefore, that the rule we have adopted is worth its salt considering the additional load that it imposes upon the judicial machinery of this state in the form of retrying oases and reviewing them on appeal.

¶12It is time, I think, to face up to the practicalities of this situation and hold that if the jury is thoroughly instructed on the measure of plaintiff’s damages, the verdict will not be disturbed for failure to attribute a dollar amount to the separate categories of general and special damages.

¶13I would hold in the present case that the verdict first returned by the jury should have been received.