University of Michigan Journal of Law Reform
52 minute read | January.01.1989
The current process for measuring pain and suffering damages fails to serve the compensation and the accident avoidance goals of tort law. The lack of standards for juries to apply produces widely varying pain and suffering awards that leave observers wondering what differences in the cases justify the disparity. Disparate awards send confused signals concerning the appropriate levels of accident avoidance. Overdeterrence of socially productive activities and subsidization of socially undesirable activities are the unfortunate results.
This Note argues that adapting the criminal sentencing guide-lines systems in use in several states' to the personal injury context would provide appropriate standards for measuring pain and suffering damages. Part I explores why present methods for measuring pain and suffering are objectionable. A description of the proposed method for developing guidelines is provided in Part II. Part II explores the use of guidelines in criminal sentencing and the analogy between sentencing decisions and assessment of damages for nonpecuniary loss. Part II also de-scribes how to develop and implement guidelines for assessing pain and suffering damages. Part III examines why the proposed guidelines are a solution to the problems identified in Part I. Finally, Part IV responds to possible criticisms of the proposed reform.