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What damages are recoverable in personal injury claims?

By John Hipskind on August 12, 2015

On August 11, 2015, Geno Smith, a quarterback for the New York Jets, was punched in the face by his teammate IK Enemkpali.  Initial reports indicate that Geno Smith will miss six to eight weeks of time due to multiple fractures in his jaw resulting from the altercation.  Given the severity of his injuries and the facts as they have been reported, it is likely that Geno Smith would be able to prevail against IK Enemkpali were he to bring a personal injury case against him in court.  Geno Smith would have a cause of action for the intentional torts of assault and battery, which basically just means that IK Enemkpali threw a punch at Geno Smith intending to cause him harm.

So, given the facts as they have been reported, liability seems pretty clear in this case unless IK Enemkpali can show some type of affirmative defense or reason as to why he struck Geno Smith.  Absent any justification, Geno Smith would likely be able to establish liability on behalf of IK Enemkpali.  Once liability is established, the question then becomes what are Geno Smith’s damages.  In Illinois, anyone suffering from a personal injury has the ability to recover for various damages, including: disfigurement, disability or loss of a normal life, increased risk of future harm, pain and suffering, medical expenses, lost earnings, lost earnings potential, and caretaking expenses.

In the case of Geno Smith, he has already had surgery so he would be entitled, if he won at trial, to recover at least a portion of his medical expenses, but how about pain and suffering?  Illinois courts do allow plaintiffs to recover for pain and suffering resulting from an underlying injury.  And awarding damages for pain and suffering makes sense as only awarding a plaintiff his/her medical expenses does not make them whole because it fails to adequately compensate them for the pain they have suffered as a result of their injury.

Illinois law divides pain and suffering into two separate categories, past and future.  Geno Smith would be allowed testify regarding the pain and suffering he has already experienced, that is generally always allowed by the court.  However, it can be more difficult to establish what Geno Smith’s future pain and suffering would be.  In order to establish future pain and suffering the court generally requires a showing of some evidence demonstrating that the injured party is reasonably certain to continue dealing with pain and suffering relating to the injury at issue.  For example, Geno Smith would likely need a medical expert to affirm that he will continue to have future pain and suffering for the court to allow the jury to award such damages.  On the other hand, if there was no evidence to support continuing pain and suffering, these damages would likely not be awarded.

However, the most interesting aspect of Geno Smith’s potential claim would be whether he could recover for any impact his injury may have on his future earning potential.  The injury, at least at this point, does not appear to be one that would prevent him from playing football in the future.  If his injury would prevent him from ever playing football again he could certainly recover for the harm to his future earning potential.  However, although the injury will not prevent him from playing forever, it will reportedly cost him several weeks and could potentially cost him the starting quarterback job.  The difference between the salary of a starting quarterback and a second or third string quarterback in the NFL is millions and millions of dollars a year, so would Geno have a claim for any loss of future earning potential if he is unable to win back the starting job?  Illinois courts do allow plaintiffs to recover if they can establish that their injury affects their ability to perform or their ability to advance in their careers, however, plaintiffs must be able to establish their damages with a level of reasonable certainty before the Court will allow evidence regarding those damages to be presented to the jury.   This requirement of reasonable certainty is likely where Geno Smith would have difficulty establishing his damages since he would need to establish that, to a degree of reasonable certainty, had this injury not occurred he would have held onto the starting quarterback job and then, subsequently, received a larger contract than he ends up receiving.  This would be a tall order for any legal team as it is generally difficult to establish future earning potential as it relates to a unique career like a professional athlete.

Further, depending on other factors regarding the incident, Geno Smith may be entitled to recover various other damages, including punitive and potentially psychological damages.  As you can see, determining what damages you may or may not be entitled to following a personal injury can become a complicated process.  If you or someone you care about is dealing with a personal injury claim, feel free to call an experienced divorce attorney at Hipskind & McAninch, LLC, for a FREE evaluation of your case.  Contact us at: 618-641-9189 (IL) or 314-312-2930 (MO).

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