Document Type

Article

Publication Date

2007

Abstract

A number of states recognize hedonic damages as a separate category of recovery in tort and tort-like actions. Others consider lost enjoyment of life as an aspect of what are sometimes termed "disability" damages-damages for physical or mental impairment. Many other states permit juries to take account of lost enjoyment of life in setting compensation for pain and suffering or other forms of general damages. In all these jurisdictions, disability has loomed large. And the (explicit or implicit) view of disability is often one of tragic dependency and helplessness. As we show in Part I below, lawyers seeking hedonic damages emphasize their clients' new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who have experienced disabling injuries based on a view that disability-what some courts refer to as the failure to be a "whole person" - necessarily limits one's enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and of people with disabilities as natural objects of pity. In this Article, we challenge that view. A rich psychological literature demonstrates that disability does not inherently limit enjoyment of life to the degree that these courts suggest. Rather, people who experience disabling injuries tend to adapt to their disabilities. To the extent that they experience continuing hedonic loss, it is physical pain and loss of societal opportunities-not anything inherent in the disability-that is the major contributor.


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