- Richard L. Duquette
Recovering Money for an Athlete's Loss of Enjoyment of Life
Money is often the only justice an injury victim can receive, as we can't lock up careless drivers-unless the act was criminal. One form of recovery is: "loss of enjoyment of life". By law, this is a non-economic damage (as opposed to loss of earnings which is a hard damage- an economic loss).
There is no fixed standard by law to determine the amount of such a loss. The law in California says that it must be a reasonable amount based on the evidence and a juror's common sense. As an athlete, you must ask yourself how to quantify a loss of enjoyment of life, or said another way, has your ability to fully enjoy your sport been effected? I would ask you to consider looking at your lifestyle through the eyes of a non-athletic juror, to find a common ground. Some juror's lifestyles may be less active; nevertheless, they do understand human behavior, even if they enjoy a different lifestyle to some degree.
So, here's a starting point, when you are attempting to quantify your lifestyle loss. Ask yourself these questions:
How has the injury affected the delicate balance between your athletic lifestyle, your work, and your fun? (Your sense of well being).
How has the injury limited your ability to relate to and to help others as fully as you would like to? This includes your family and the limit on your energy or mobility level.
How has the injury affected the benefits of companionship gained by being around other athletes in regards to groups and support?
How has the injury affected your sense of adventure, including the sights and smells you experience in your life (i.e. swimming in the ocean or riding a bicycle outdoors)?
How long of a time has your lifestyle been affected? How severely? Have you been affected permanently?
Now ask yourself, how you have tried to adapt to and /or overcome your recent loss of enjoyment of lifestyle? The jury will want to see a positive attempt to recover. Tell and show us how.
Finally, make a list of family members, friends, or witnesses who can relate examples of your attempts to improve your life (i.e. the good and the bad days). This type of evidence is best told by someone other than yourself, in order to maintain your credibility.
Let's explore this subject when you visit me. Bring photographs, race results, training mileage charts (before and after the injury) to help me understand your case.
These are only a starting point. (Feel free to creatively add to this bucket list).
When the trial attorney can walk a mile in your "life style moccasins" it is far easier to make the connection with jurors (or claims adjusters) who will assess a value on your loses. This will help you reach justice.
Relevant CACI Jury Instructions
See section 3905A of the CACI jury instructions entitled, "Physical Pain, Mental Suffering, and Emotional Distress (Noneconomic Damage)".
3928- Unusually susceptible plaintiff.
3927- Aggravation of a preexisting condition or disability
3905A- Physical pain, mental suffering, and emotional distress (non-Economic damage).
3903A- Medical excuses-past and factual (economic damages)
3903C- Past and future loss of enjoyment (economic damages)
3902- Economic and non-economic damage
3903- Items of non-economic damage Revised 1/29/10