Vermont Civil Jury Instruction Committee

Plain English Jury Instructions

Section 11.      Damages

 

Table of Contents

11.0     General Damage Instructions

11.1     Life Expectancy

11.2     Personal Injury Damages

11.3     Medical Expenses

11.4     Property Damage

11.5     Lost Earnings and Earning Capacity

11.6     Wrongful Death Damages—General Instruction

11.7     Life Expectances—Wrongful Death

11.8     Medical and Funeral Expenses—Wrongful Death

11.9     Lost Support and Services—Wrongful Death

11.10   Non-Economic Damages

11.11   Survival Action—Wrongful Death

11.12   Damages Claimed for Aggravation or Activation of Disease or Defect

11.13   Susceptible Plaintiff

11.14   Present Worth of Future Loss

11.15   Duty to Mitigate

11.16   Reasonable Not Speculative

11.17   Nominal Damages

11.18   Income Taxes

11.19   Punitive Damages

 

 

11.0    General Damage Instructions

If you decide in favor of [Name of Defendant], you will not consider these instructions about damages.  But, if you decide for [Name of Plaintiff], you must award [Name of Plaintiff] an amount of money that you believe will put [him/her], as nearly as possible, in the position [he/ she] would have occupied if the [describe event at issue, like “car accident,” or state “events described at trial”] had not happened.  Here are some further instructions to help you do that:

 

Reporter’s Notes

These instructions follow an instruction on liability.  Although the Committee generally disfavors “traffic signal” instructions such as this, it seems appropriate to include such an instruction here, at the beginning of “damage,” rather than within the liability instructions.

 

11.1    Life Expectancy

In determining the amount to award, you need to consider how long [Name of Plaintiff] would have lived during a normal life.  [If applicable: I instruct you that the normal life expectancy for [Name of Plaintiff] is ____ years.]

 

Reporter’s Notes

As the bracketed sentence provides, it appears to be the prevailing practice in Vermont for the Court to instruct the jury on life expectancy based upon mortality tables, although if the matter is subject to dispute, it will require jury determination.

 

11.2 Personal Injury Damages

[Name of Plaintiff] is entitled to compensation for any bodily injury and any pain and suffering, disability, disfigurement, mental anguish, and loss of enjoyment of life experienced in the past, or probably to be experienced by [him/her] in the future.  Award these damages for any harm you find caused by [describe event at issue].  There is no particular formula to calculate this compensation.  You should make sure that any amount awarded to [Name of Plaintiff] is fair to the parties in this case in light of the evidence you heard.

 

11.3    Medical Expenses

[Name of Plaintiff] is entitled to compensation for the cost of medical and other treatment reasonably necessary in the past, or that will be probably necessary in the future, because of [describe event at issue].

 

11.4    Property Damage

[Name of Plaintiff] is entitled to compensation for any damage to [Name of Plaintiff]'s [type of personal property], [if car: including any expenses for towing, storage, and replacement charges] [if other property: including any amount necessary to compensate [Name of Plaintiff] for losing the use of [his/her] [describe property] during the time reasonably required to repair or replace it.]

 

11.5    Lost Earnings and Earning Capacity

[Name of Plaintiff] is entitled to compensation for any earnings lost in the past, and any probable loss of ability to earn money in the future, because of [describe event at issue].  When considering [Name of Plaintiff]’s future wages, you should consider [Name of Plaintiff]’s expected working lifetime.

 

Reporter’s Notes

The elements of damage can be listed separately, as set forth above, or can be combined in a shorter, “bullet point” list, depending upon the nature and complexity of the case.  Case citations: Melford v. S.V. Rossi Const. Co., 131 Vt. 219, 223, 225–26; Kramer v. Chabot & Sons, 152 Vt. 53, 55 (1989); My Sister's Place v. Burlington, 139 Vt. 602, 612 (1981); Brueckner v. Norwich University, 169 Vt. 118, 128–29 (1999).

 

11.6    Wrongful Death Damages—General Instruction

Under Vermont law, when the death of a person is caused by a wrongful act of another person, the deceased person's next of kin can receive compensation from the responsible person.  That is the type of claim made in this case.  [Name of Plaintiff] represents the next of kin.  If you find for [Name of Plaintiff] in this case, you shall consider the following instructions regarding damages for this claim: . . .

 

11.7    Life Expectances—Wrongful Death

In determining the amount to award, you need to consider how long [Name of Decedent] would have lived during a normal life and how many years [the next of kin] are expected to live.  [If applicable: I instruct you that the normal life expectancy for [Name of Decedent] is __.  I instruct you that the normal life expectancy for [the next of kin] is __.]

 

11.8    Medical and Funeral Expenses—Wrongful Death

[Name of Plaintiff] should receive compensation for medical and funeral expenses caused by [Name of Decedent]'s injury and death.

 

11.9    Lost Support and Services—Wrongful Death

[Name of Plaintiff] should receive compensation for the loss of [Name of Decedent]'s income that would have benefited [the next of kin], and other economic support and services provided by [Name of Decedent] that would have benefited [the next of kin] to the present and in the future if [Name of Decedent] had not died as a result of the events you heard about at trial.  When considering [Name of Decedent]’s life expectancy for this calculation, you should consider [Name of Decedent]’s expected working life.

 

Reporter’s Notes

“Other economic support and services” generally includes household labor.  It is recommended that specific categories of support and services be named here if such evidence is presented at trial.  Also, note that the next of kin are entitled to the decedent's lost income that would have benefited the next of kin.  This necessarily requires the jury to consider how much of a decedent's net income would have flowed to the next of kin rather than to the decedent or elsewhere.

 

11.10  Non-Economic Damages

[Modify as necessary due to Decedent's status as child or adult and next of kin's status as spouse, child, or parent] [Name of Plaintiff] should receive compensation for [the loss of love and companionship;] [care, nurture, and protection;] [the loss of the love and companionship of a child;] and [the loss of the parent-child relationship] that [the next of kin] would have expected to the present and in the future if [Name of Decedent] had not been killed as a result of the events described at trial.  They also should receive compensation for the grief and mental anguish they have suffered to the present and probably will suffer in the future as a result of [Name of Decedent’s] death.  There is no exact formula to calculate this compensation.  You should make sure that any amount awarded to [Name of Plaintiff] is fair to the parties in this case in light of the evidence you heard.  Among types of evidence you may consider are the physical, emotional, and psychological relationship between [Name of Decedent] and [the next of kin], the living arrangements of the family, the harmony of family relations, and their shared interests and activities. 

 

Reporter’s Notes

The committee elected to remove from the instruction a specific award for loss of “intellectual, moral, and physical training.”  The committee feels that the phrase is archaic in its tone and is covered better by the instruction as recommended.  Case citations: 14 V.S.A. § 1492; Mobbs v. Central Vermont Railway, 150 Vt. 311, 315–16 (1988); Clymer v. Webster, 156 Vt. 614, 629–30 (1991); Mears v. Colvin, 768 A.2d 1264, 1268–69 (2000).

 

11.11  Survival Action—Wrongful Death

[Name of Plaintiff] represents [Name of Decedent]'s Estate and is entitled to payment for [list as applicable]: medical expenses related to [Name of Decedent]'s injury and death; lost wages for the period of [Name of Decedent]'s injury; and conscious pain and suffering of [Name of Decedent] during [his/her] injury.

 

Reporter’s Notes

For a full description of pain and suffering damages and how a jury ought to calculate them, see Personal Injury Damages instructions.

 

11.12  Damages Claimed for Aggravation or Activation of Disease or Defect

 

There has been evidence that [Name of Plaintiff] had a condition at the time of the accident, specifically [state alleged pre-existing condition briefly].  [Name of Plaintiff] is entitled to compensation for any worsening of an existing [mental or physical] problem caused by [describe accident at issue, such as car accident.] If you find that [Name of Planitiff]'s existing condition did get worse, you should give [Name of Plaintiff] compensation only for the difference in the condition caused by the accident.  If you cannot make that decision or if you find [Name of Plaintiff] would have been in the same condition as now even without the existing mental or physical problem you can award compensation to [Name of Plaintiff] based upon the entire condition.

 

Reporter’s Notes

If possible, substitute the name of the pre-existing mental or physical problem (such as “low back injury”) for the phrase “existing mental or physical problem.”  The Committee suggests the use of the term “worsening” rather than “aggravation.”

 

11.13  Susceptible Plaintiff

There has been evidence presented in this case that [Name of Plaintiff] is more susceptible to injury than other people may be because of [describe briefly “thin skull” claim].  You must award damages based upon the injuries suffered by this plaintiff, even if you believe others may not have been hurt like [Name of Plaintiff] if they had gone through the [describe accident, like “car accident.”]

 

11.14  Present Worth of Future Loss

If you award [Name of Plaintiff] future medical expenses or future lost wages, then you must determine the "present value" of those awards, because they represent payment now for a loss that will not occur until some future date.  Basically, [Name of Plaintiff] will be reimbursed in advance.  In order to adjust this award to a present value, you must discount or reduce future medical expenses and future lost wages awards by taking (1) the interest rate or return that [Name of Plaintiff] could reasonably be expected to receive on an investment of the lump-sum payment, together with (2) the period of time over which the future loss is expected to occur.  Your verdict must be for this reduced amount, which represents the present value of your award.

 

11.15  Duty to Mitigate

Under the law, [Name of Plaintiff] must make reasonable attempts to prevent the worsening of [his/her] injuries after the [describe accident] and to help recover from them.

If [Name of Plaintiff] has not done so, [Name of Defendant] cannot be expected to pay damages for the worsening, or lack of improvement, caused by [Name of Plaintiff]'s failure.  Your award must not include compensation for any such failure.

 

11.16  Reasonable Not Speculative

Damages must be supported by the evidence.  You must not award damages based upon speculation.

11.17  Nominal Damages

If you find that [Name of Plaintiff] is entitled to a verdict but do not find that [Name of Plaintiff] has sustained measurable damages, then you may return a verdict in a nominal sum such as one dollar.

Reporter’s Notes

A “nominal damages” instruction is rarely used except in some cases where punitive damages are sought or statutory attorney's fees or penalties can be assessed.

 

11.18  Income Taxes

If you find for [Name of Plaintiff], you must not consider any effect of federal or state income tax in deciding the amount of the award.

 

Reporter’s Notes

Counsel must consider the need to request an instruction on the effect of income tax on any award.  See Stowell v. Simpson, 143 Vt. 625, 470 A.2d 1176 (1983); Derosia v. Verboom, 169 Vt. 593, 736 A.2d 775 (1999) (decision as to whether to provide such an instruction rests in discretion of court and depends upon extent to which issues concerning the effect of income tax were raised by the parties or their experts at trial).

 

11.19  Punitive Damages

Punitive damages are meant to punish [Name of Defendant] for [his/her/its] behavior and to stop others from acting similarly in the future.  Punitive damages may be awarded by you if you find that [Name of Defendant] acted recklessly or wantonly without regard for [Name of Plaintiff]'s rights, or showed personal ill will to [Name of Plaintiff] in injuring [him/her], or acted with evident insult or oppression towards Plaintiff.  It is not enough for the acts of [Name of Defendant] to have been simply wrong or unlawful.  Instead, punitive damages are used when a defendant's actions have the character of outrage frequently associated with a crime.

[If applicable: Where the Defendant is a corporation, such as is the case here, in order to find the corporation must pay punitive damages, you must find that the behavior justifying punitive damages were corporate acts.  Generally, where responsible management of the corporation has knowledge of a wrongdoing on the part of lower-level employees or was involved in the acts itself, the corporation will be determined to have permitted the act.]

In determining the amount of punitive damages, you should consider the character and standing of [Name of Defendant], [his/her/its] financial status, and the degree of malice or wantonness in [his/her/its] acts.

 

Reporter’s Notes

See generally Brueckner v. Norwich University, 169 Vt. 118 (1999); Clymer v. Webster, 156 Vt. 614 (1991); Glidden v. Skinner, 142 Vt. 644 (1983); Shortle v. Central Vermont Public Service Corporation, 137 Vt. 32 (1979); Sparrow v. Vermont Savings Bank, 95 Vt. 29 (1921); and Parker v. Hoefer, 118 Vt. 1 (1953).