How is compensation determined in a premise liability claim? Is there a formula for determining compensation/settlement in a personal injury case, specifically a premises liability claim? How much can reasonably claimed for “pain and suffering” and/or emotional distress.


Mass-producers of residential homes and lessors in the business of renting residential units are exposed to strict liability for defects in an integral part of the building structure (e.g., defective shower door, defective heating system. But the overall complex (the entire premises) wherein the housing is constructed is not itself a “product.” Thus, a claim for injuries resulting from an alleged defect in the overall complex must be treated as a premises liability claim, turning on negligence—not strict product liability—law. [Brooks v. Eugene Burger Management Corp. (1989) 215 CA3d 1611, 1624, 264 CR 756, 763].

Ordinarily, the most “valuable” element of a bodily injury claim is the right to compensation for all “pain and suffering” plaintiff has sustained, and will endure, as a proximate result of the injury. These are plaintiff’s “general damages,” and may run far in excess of the “special damages” (e.g., earnings loss and medical expenses). Pain and suffering” is a unitary concept, encompassing all the physical discomfort and emotional trauma occasioned by an injury. Plaintiff is entitled to compensatory damages for all physical pain suffered … and also for all resulting “fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.” [Capelouto v. Kaiser Found. Hosps. (1972) 7 C3d 889, 892–893, 103 CR 856, 859; see Potter v. FirestoneTire & Rubber Co. (1993) 6 C4th 965, 981, 25 CR2d 550, 560]. Once plaintiff establishes a right to recover (i.e., burden met on issue of liability), the verdict must include compensation for whatever pain and suffering has been proved. The amount of such compensation is generally left to the “impartial conscience and judgment” of the trier of fact. But an award that fails to include any compensation for pain and suffering is inadequate as a matter of law. [Capelouto v. Kaiser Found. Hosps. , supra, 7 C3d at 893, 103 CR at 859; Dodson v. J. Pacific, Inc. (2007) 154 CA4th 931, 936–938, 64 CR3d 920, 923–925; and see Wilson v. Werner Co., Inc. (1980) 108 CA3d 878, 883, 166 CR 797, 800]. I suggest that you seek personal assistance from a lawyer to guide you in filing your personal injury claim.

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