Ask a Lawyer and Get Answers to Your Legal Questions
Thank you for using JustAnswer. I am researching your issue and will respond shortly.
I'm sorry to hear about your situation. Can you tell me if you have any medical bills (for treatment / rehabilitation / etc...) relating to this? Is there any permanent scaring or damage?
I was in the air so no medical attention rendered and no bills, as of now the scare are healed
Do you have any photographs or other physical evidence that shows the extent of the swelling / burn / etc...?
I did not take pictures
Again, I am sorry to hear about your situation. I want you to know that I do not want to minimize the pain (both physical and mental) and humiliation that you felt. Rather, I am giving you an assessment of the strength of your case, assuming that what you say is completely true (as I have no reason to doubt it whatsoever)...
The fact that there is a lack of evidence is very problematic. While your testimony alone could support an award, I'm afraid it would not be very much.
There are two types of main, monetary damages: actual and punitive. Punitive damages apply in situations where there was intentional tortious behavior or gross negligence. Punitive damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will in fact receive all or some portion of the punitive damage award. Actual damages are damages that are intended to compensate the plaintiff for damages actually incurred by the plaintiff, rather than to punish the defendant. Now under the category actual damages, you have economic and non-economic damages. Economic damages are the actual, out of pocket damages suffered by the plaintiff. This will include property damages (damage to a car in a car accident, broken equipment, etc...), lost wages as a result of losing a job, or being out of work, in the hospital, etc..., medical bills, rehab bills, and even future medical bills (if applicable). These are actual, quantifiable numbers. Then you have non-economic damages, which are more "fuzzy". These are pain and suffering, mental anguish, loss of companionship, and so forth. This is where you get compensated for the pain that you suffered, even though you can't actually "quantify" that pain. Now the problem with non-economic damages is that they are hard to quantify. If you've suffered an amputation, you should get a lot more non-economic damages, because that is going to significantly affect your life, for the rest of your life. But if you have suffered something that is not chronic, but temporary, that is going to adjust the number downwards, because it is not going to be a lifelong issue, and would not constitute the disfigurement that generally is compensated in greater numbers in court.
If there was no proof of medical costs or lost wages as a result of this injury, the "economic" damages would not be an option. That is, you couldn't point to a specific dollar figure and prove that you lost this amount as a result of the injury.
As to the non-economic damages, that is a possibility, but it would be hard to prove. The lack of evidence as to the extent of the injury (i.e. pictures, medical testimony, etc...) means that the jury wouldn't have anything to look at.
A jury could still award you pain and suffering damages, but the plaintiff in a personal injury case has the burden of proof of proving the amount of these damages.
Again, if there was some permanent scaring, or even pictures that showed the extent of the injury, that would be helpful, as it would provide evidence to a comptent expert witness that could quantify the extent of the paint, etc...
For example, in the "McDonald's coffee case" (aka the Stella Liebeck case), there were 3rd degree burns (which resulted in permanent scars), as well as $20,000 in medical costs, and significant evidence as to the knowing culpability of McDonalds (they had previous cases before and made comments that payments of settlements were cheaper than getting equipment to make cooler coffee).
There a jury could assess the evidence, and an attorney could point to pictures, as well as in court demonstration of the plaintiff's scars.
As much as I wish I could tell you otherwise, I'm afraid that from an evidentiary perspective (what can be proven in terms of the airline's culpability and the extent of your harm), there's very little evidence, and such a case would be extremely risky for any attorney to take on a contingency basis. You could sue and pay an attorney hourly, but I do not think that you would be able to find an attorney that would take it on a contingency basis because of the risk of such a case, and the likely low (if any) payout ...
Again, I don't want you to interpret this as me minimizing your pain and your injury. There's no doubt that you had this. But the problem comes in proving it to a jury, and a picture really does speak 10,000 words, whereas a scar speaks 100,000.
Without that evidence, I would be extremely pessimistic about your chances of a viable recovery from a jury, even though I do not doubt that you actually had this injury and pain...
I know this is probably not what you wanted to hear, but it's my assessment (and I believe would be the assessment of any personal injury attorney that takes contingency cases). I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!
the evidence is that they gave right away 75,000 skymiles
That helps, certainly, but an attendant giving 75,000 skymiles is not necessarily an admission of guilt, but further, it doesn't actually say anything of the scope of the injury.
It helps in that it would be better than it not being present. But it's not anything like photographic or in person evidence of the injury.
Like I said above, you could win the case. But what you win would probably not be very much.
That is, you could get a judgment that says that Delta has to pay you a certain amount of money (which would be offset by the monetary value of the compensation (the Skymiles) already paid).
The amount of that award would be based upon the extent of the injury and what could be proved.
The fact that they gave you 75,000 miles would indicate culpability, but not extent of the injury (or maybe very little evidence, in that 75,000 miles is more than 25,000, but even then it would have to be valued at the actual cash value of that, and that would be the subjective assessment by the flight attendant what your injury was worth...)
ok thanks then
Again, I am sorry for your situation and what Delta has put you through (I personally have not flown with them in over 13 years because of a bad experience I had with them). I wish I could tell you that you could successfully take them to court, I really do.
But unfortunately, there are constraints... And I can only tell you what will most likely happen, not what should happen.
Again, I know this is not what you wanted to hear, but it is the way things are... I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!
Did you have any other questions before you rate this answer?