AMI 2205 Measure of Damages—Pain, Suffering, and Mental Anguish—Past and Future

This clause is to be inserted between the two paragraphs of AMI 2201 when the evidence justifies its use.

This instruction states a traditional element of damages. See generally Dan B. Dobbs, The Law of Torts 1050–52 (2000) (describing entitlement to recovery and forms of suffering included). Pain and suffering may be inferred from the serious nature of the injury. Scott-Burr Stores Corp. v. Foster, 197 Ark. 232, 122 S.W.2d 165 (1938). There is no definite and satisfactory rule to measure compensation for pain and suffering and the amount of damages must depend on the circumstances of each particular case. Hamby v. Haskins, 275 Ark. 385, 390, 630 S.W.2d 37, 40 (1982). It is not an abuse of the trial court's discretion to permit counsel to argue for a per diem basis for pain, suffering, and mental anguish, Vanlandingham v. Gartman, 236 Ark. 504, 506–08, 367 S.W.2d 111, 113–14 (1963); but Golden Rule arguments, in which jurors are asked to determine the amount of damages by putting themselves in plaintiff's position, are not allowed in Arkansas. Missouri Pac. R. Co. v. McDaniel, 252 Ark. 586, 588–90, 483 S.W.2d 569, 571 (1972); Midwest Buslines, Inc. v. Johnson, 291 Ark. 304, 307–08, 724 S.W.2d 453, 455 (1987).

Evidence of future pain and suffering must be established with reasonable certainty and not left to speculation or conjecture by the jury. Handy Dan Home Improvement Center, Inc.-Arkansas v. Peters, 286 Ark. 102, 104, 689 S.W.2d 551, 552 (1985). Lay testimony may meet that test even in the absence of expert corroboration. Bailey v. Bradford, 244 Ark. 8, 9–10, 423 S.W.2d 565, 566–67 (1968). Damages for future pain and suffering are not reduced to present value. Dobbs, supra, at 1057; Jackson v. United States, 526 F. Supp 1149, 1153–54 (E.D. Ark. 1981) (applying Arkansas law), aff'd, 696 F.2d 999 (8th Cir. 1982).

In an action based on negligence, plaintiff may be entitled to recover damages for mental anguish as well as for physical pain and suffering; and mental anguish may be inferred from the degree of physical pain. Chicago, R.I. & P. Ry. Co. v. Caple, 207 Ark. 52, 179 S.W.2d 151 (1944). Humiliation and embarrassment are included within the damage element of mental anguish, and it is error to instruct the jury that they are separate elements of recovery. Yam's Inc. v. Moore, 319 Ark. 111, 116-17, 890 S.W.2d 246, 249 (1994); Bruns v. Bruns, 290 Ark. 347, 350, 719 S.W.2d 691, 693 (1986) (holding it error to so instruct the jury and noting the Per Curiam Order of April 19, 1965). Plaintiff may recover for mental anguish suffered in the past and reasonably certain to be experienced in the future. Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 784 S.W.2d 755 (1990). In intentional tort cases, recovery for mental anguish does not require physical harm. Midwest Buslines, Inc. v. Johnson, 291 Ark. 304, 305, 724 S.W.2d 453, 454 (1987).