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Enhancement of damages
June 1, 2009 By: John V. McCoy LPGas
When defending members of the propane industry in litigation, it is normal to review the actions of the client I represent and the party bringing the lawsuit to determine the cause of the loss.
There are four elements to the typical negligence claim: duty, breach of duty, cause and damages flowing from the breach.
There is a defense to the damages flowing from the breach element. This is known as the “enhancement of damages” defense, which also can be used to reduce the amount of damages that can be recovered in a case. This defense is a developing area of the law that can have a significant impact on a case, as it can be used to reduce and, in some cases, eliminate the damages sought.
This defense can take several forms and depends on the facts of a case. For instance, a damage claim may have been less if the property owner had safeguards in place to protect against a fire or explosion. This could include a sprinkler system, explosion venting, the use of engineered compartments to wall off a potential fire or explosion to a limited space, the use of smoke detectors to permit early detection of a fire and implementation of industrial controls to stop gas flow.
Violations of enhanced safety practices that could have lessened or avoided damages can be found by referring to building codes, fire codes and industry custom and practices.
There is a strong social policy behind the enhancement of damages defense. Whatever considerations justify imposition of liability for harm caused by a defendant do not extend to damages the plaintiff could reasonably have avoided. A rule denying compensation for such damages promotes careful conduct by plaintiffs – just as the imposition of liability on defendants supposedly promotes careful conduct by defendants
From the standpoint of risk sharing, plaintiffs at least find themselves on an even playing field with defendants when it comes to their responsibility to avoid a loss or damages.
The practical way this defense is approached is through the development of case facts, analysis of what could have been done to avoid or reduce the injury through expert testimony and development of a jury special verdict questionnaire. This captures the damages the jury believes enhanced the damages element of the plaintiff’s case.
This approach will not concede the cause element of the case. Cause is what is also referred to as the liability element of a negligence claim. There is typically no recovery to a plaintiff absent a jury determination that the defendant caused the loss. Many states ask a jury to determine damages even if it decides the defendant did not cause the damages. The reasons for this are many: a trial judge or appeals court may find that a jury verdict is wrong on the cause question and decide a defendant is liable for an accident. In this event, the damages are already determined and a new trial is unnecessary to determine that element of the case.
The important aspect of the defense is to look at what the plaintiff could have done to avoid or minimize the damages claimed for an accident. This can be a powerful way to reduce the total risk exposure to the defendant regardless of the cause.
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