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D. Lee Johnson & Associates
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Toledo, OH 43617
Phone: 419-843-2424
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Factors Affecting Damages Awards

Nature of injury
Degree of defendant's liability
Comparative negligence
Joint and Several Liability
Joint Tortfeasors
Respondeat Superior
Alternative Liability/Acting in Concert Liability
Market Share Liability
Plaintiff's and Defendant's credibility
Plaintiff's age
Witness testimony

Nature of injury

It stands to reason that the most important factor which will affect the amount of damages that you can recover is the nature of the injury sustained. The more serious an injury is, the higher the value of the claim. If you are suffer from a soft tissue injury, such as with whiplash or neck strain, you will not recover as much as someone who is injured more seriously, involving ligament tears, bone fractures, and nerve damage. Injuries such as whiplash and back strains are known as soft tissue injuries because they involve muscle. Although the condition can be painful, it's usually not permanent. Moreover, there is limited ability to detect this condition through medical examination, whereas bone and ligament damage is easily seen on a standard x-ray. serious injuries that can be detected with a medical examination typically receive much higher damage awards. If you have medical documentation to prove your damages, you will usually receive more compensation for your injuries.

In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.

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Degree of defendant's liability

As noted in our materials on negligence, if the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. There will no reduction in the award based on the defendant not being entirely at fault. For example, if you are a passenger sleeping in a car hit by a drunk driver, you are not at fault for your injury, while the defendant is completely at fault. The only issue at trial will normally be how much your damages are worth. However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease. At D. Lee Johnson & Associates, we will vigorously contest any claim that you are partially at fault for causing an accident where appropriate. Using our experience and the services of expert accident reconstructionists and investigators, we will focus on proving the fault of the defendant so that we can obtain the maximum possible settlement or verdict for you.

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Comparative negligence

If a plaintiff is found partially at fault for an accident, he or she has not lost his or her case altogether. In Ohio, comparative negligence is used to calculate the degree of the plaintiff's negligence and reduce the plaintiff's claim reward accordingly.O.R.C. Ann. § 2315.33. The plaintiff will be allowed to recover as long as the defendant or combined defendants fault is equal or greater to the plaintiff's apportioned fault. The plaintiff's negligence must be less than 51%. O.R.C. Ann. § 2315.33. The award of damages to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault.

Example: Suppose a jury awards you $100,000 in damages after you fell down the stairs, however, it finds you 30 percent at fault for your injuries because you did not hold on to the hand rail. After applying comparative negligence, you would be entitled to $70,000 in damages - $100,000 minus 30 percent.

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Joint and Several Liability

As a general rule, Ohio holds two or more defendants who are responsible for causing an injury jointly and severally liable. This means that in cases where multiple defendants are responsible for the plaintiff's injury, each defendant is held individually liable for the full amount of the percentage of the damages that are not caused by the plaintiff himself, depending on the degree of fault of the defendant. In Ohio, only a defendant determined to be 50% or more responsible for all damages is liable for the entire award. O.R.C.§ 2307.22. A defendant found less than 50% responsible is liable for only that percentage of economic and noneconomic damages directly attributable to that defendant. O.R.C.§ 2307.22.

For example, if defendants' A is responsible for 65% of the damages and B is responsible for 30% of plaintiff's damages, and plaintiff is 5% responsible, only A is liable for the full 95% apportioned to the defendants. B is only liable for 35% of the damages, since his fault is less than 50%. A plaintiff cannot collect the 95% from A and 35% from B at the same time. But the plaintiff could collect the full amount from A if he chose to. However, A and B have what is known as a right to contribution. This means that if the plaintiff recovers more than A's "pro rata" share of the damages, then A can sue B for partial reimbursement.

Example: A passenger-plaintiff is injured in a multiple collision car accident. He sues the defendant-driver and his employer together, and the driver of the plaintiff's vehicle. The court finds the defendant and employer 60% liable, the plaintiff's vehicle driver 35% liable, and the plaintiff 5% liable for the damages of $300,000. Under Ohio law, the defendant/employer would be liable for the full $285,000 (total less the plaintiff's negligence-reduced damages). If the plaintiff sought to collect the award from them (the defendant-employee is indemnified by the employer in this case). If the plaintiff collected the full amount from the defendant/employer, they could seek contribution from the plantiff's driver-defendant in the amount of $105,000 (the difference between the full 95% amount of damages and the 60% pro rata liability of the defendant/employer).

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Joint Tortfeasors

The theory of joint and several liability is that when separate and independent acts of negligence of several persons combine to produce a single injury, the actors are considered joint tortfeasors. The plaintiff can sue these joint tortfeasors in the same action, and each individual defendant will be held responsible for the entire amount of damages. The purpose of this rule is to transfer the risk that one defendant will lack the resources to pay the damages from the plaintiff to the other defendants. If one defendant pays the entire judgment, the defendant can sue the other defendants to contribute the amount of the damages that the jury found them responsible for. O.R.C. Ann. § 2307.25 However, joint and several liability only applies to economic losses such as medical expenses and lost wages. It does not apply to pain and suffering damages. Each defendant is liable only for the amount of pain and suffering damages that are apportioned to them individually. O.R.C. Ann. § 2315.18

Example: Suppose the jury awards you $100,000 in damages because you were injured in a car accident. If the jury finds the driver of the other car 60 percent at fault and the municipality 40 percent at fault, you would be able to recover the full $100,000 from the other driver. However, you can only recover $40,000 from the municipality. If the other driver pays you $100,000 it can then sue the municipality for $40,000. This is called contribution.

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Respondeat Superior

If an employee commits a tort during the "scope of his employment," his employer will be liable (jointly with the employer). This is the rule of respondeat superior. Respondeat superior is applied to cases involving "employees," in which the employee is subject to the close control of the person who has hired him. This is distinguished from an independent contractor situation, where the hiring person does not control the "physical details" of the work but rather just the general manner that the work is carried in. Independent contractors generally do not fall under respondeat superior liability unless the employer retains the right to control the manner in which the contractor performs the work. Wright v. State, 169 N.J. 422 (2001).

Example: A plaintiff seeks a physician because of a painful swelling condition. The physician orders no further tests, and dismisses the condition as minor. Later, the patient's condition worsened, and saw a urologist who referred him back to the original doctor. After the condition was diagnosed as liver cancer, the patient underwent chemotherapy but did not survive long. The plaintiff's widow brought a medical malpractice action against the original doctor and the doctor's HMO, under respondeat superior liability. The HMO, though not licensed to practice medicine, may still be liable for the acts of its member doctors under breach of contract and negligence. Dunn v. Praiss, 139 N.J. 564 (1995).

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Alternative Liability/Acting in Concert Liability

As a special circumstance of joint and divisable liability, sometimes the actions of two or more defendants combine in such a way that it is nearly impossible for the plaintiff to identify which defendant's action caused the plaintiff's injury. An example of this would be if two hunters in the woods fired towards an animal, but one of the bullets struck the animal while the other bullet hit a bystander. Without knowing which bullet was fired by which hunter, the plaintiff would be unable to establish the liability of either hunter. To remedy this, some states, including Ohio, recognize "alternative liability" or "concert of action," where the actions of multiple negligent defendants result in an injury and the plaintiff can't prove whose act caused the injury.

Example: A defendant collides with an unlit trailer parked on the side of the road, leased by two co-defendants. The passengers of the defendant's vehicle sued the driver and the two co-defendant's, who both denied they had placed the trailer in its position where the accident occurred. The plaintiff's could not prove who had control over the trailer leading up to the collision. The court held that where it is virtually certain that one of two defendants is responsible for plaintiffs' injuries, and the evidential key as to which it is, is peculiarly within the knowledge of defendants, it is fair that the defendants be called upon to furnish information upon the basis of which the jury can determine the responsible party. Jackson v. Magnavox Corp., 116 N.J. Super. 1 (1971).

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Market Share Liability

In cases involving many defendants who produce the same or identical-looking products, courts in some states have held defendants liable under "market share" liability. This arises when several manufacturers produce a product that plaintiff's can't separately identify as coming from a particular manufacturer. For example, when plaintiffs several years took a miscarriage-preventing pharmaceutical that had an indistinct shape and label, courts in other states held that the manufacturers could be held liable to the percentage of market share they occupied on a nationwide basis at the time of injury, because the courts saw a need for accountability from the manufacturers, and the lack of identifying marks on the drug should not be a bar. Under Ohio law, market share liability is generally not imposed for products liability. It has been rejected as a theory of liability for asbestos products (Becker v. Baron Bros., 138 N.J. 145 (1994)), and for vaccine products (Class v. American Roller Die Corp., 308 N.J. Super. 47 (1989)). However, it has been used successfully in cases involving product lines that have been sold and acquired by various manufacturers, but the injuring product cannot be traced to a particular manufacturer because of loss of records. Class v. American Roller Die Corp., 308 N.J. Super. 47 (1998).

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Plaintiff's and Defendant's credibility

Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you accurately describe the events of the accident? Can you describe your injuries in detail, and in a convincing manner? Are you intelligent and well spoken? Would you make a good witness on your own behalf?

The term used to describe these intangible factors is "jury appeal." Remember that the jury members will judge both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages, and if so, how much. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.

The credibility and perception of the defendant will also affect the amount of money you receive. If the defendant in a car accident case is a 20-year-old driving a hot rod, jurors aren't likely to view the defendant favorably. This can also help a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the "holes" in defendant's version of the accident will damage the defendant's credibility, resulting in higher damage awards in most cases.

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Plaintiff's age

Age plays a role in determining the value of a plaintiff's claim, particularly where permanency of injury is alleged. If you are a 20-year-old woman who lost her leg in an accident, then a jury will award a higher amount of damages than if you are a 80-year-old woman with the same injury. The basis for this is that the younger woman has more future pain and suffering, loss of enjoyment of life, loss of income, and mental anguish ahead of her than does the older woman.

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Witness testimony

The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. It is helpful to have credible witnesses who can clearly describe your condition before the accident to the jury, so as to assist them in understanding the change in your condition post-accident. In addition, expert witnesses often play a critical role in the outcome of any personal injury trial. In cases where there are "dueling experts", the background and professional experience of your expert is critical to establishing his or her influence over the jury.

In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations. If you or a loved one is a victim of personal injuries, call D. Lee Johnson & Associates now at 419-843-2424 or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don't delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

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TOLEDO, OHIO CIVIL LITIGATION ATTORNEYS. AUTOMOBILE ACCIDENTS, PREMISES LIABILITY, SLIP & FALL, DOG BITES, EMPLOYER INTENTIONAL TORT, INSURANCE BAD FAITH, WRONGFUL DEATH