The Number #1 Reason Why Race Affects Personal Injury Damages

(And 4 Examples That Prove That It Does Affect Them)

February is Black History Month. In 2020, racial injustice issues were at the forefront of the public’s mind and the media, but it is not only in the executive branch of government that systemic problems have been revealed; the judicial branch also has its share of change that needs to occur for racial justice to truly become a reality.

The Florida Law Group fights for justice for our clients. That has always been and always will be our mission. We know that knowledge is power, and that we all have a responsibility to speak out against injustice, so today we are discussing one specific aspect of racial injustice that intersects with our profession and cases that we handle everyday: the number one reason why race affects personal injury damages, why that is unjust, what’s being done about it, and why this issue matters if you are a minority and an injured victim of negligence.

First, it’s important to understand how personal injury cases work. If you are injured as a result of someone else’s negligence, you have the right to seek monetary compensation for the costs of your injuries. This may result in settling out of court for an amount with your insurance company or the negligent party’s insurance company, or it may result in a jury trial if no settlement amount can be agreed upon. In either situation, the compensation you stand to receive depends on a number of factors. The most important is the severity of your injuries and the tangible cost to treat them, but there are other factors at play as well; what your life will be like long-term because of your injuries, how much pain and suffering you experienced, and how the accident affected/will affect your ability to excel in your career and be paid.

That last one, particularly – lost wages and earning potential – is the number one reason why race affects personal injury damages.

Think about it practically, for a moment. Someone who suffered a traumatic brain injury as a result of a car accident will receive a much higher settlement than someone who broke their arm. The injury was much more serious, much more expensive to treat, and may affect them or cause them pain for the rest of their life. Now imagine that you have two cases; both plaintiffs suffered the same injury (herniated discs in their neck and a broken arm) but one plaintiff is a surgeon, and one plaintiff is a teacher. The surgeon has to take two months off work to recover, because they obviously can’t perform surgery with their broken arm; they miss out on hundreds of thousands of dollars in income, because ordinarily they would have performed 120+ surgeries in that two month time span. The teacher would not miss out on that much income because they make less, and would likely be able to return to work much sooner to perform their duties as they can likely teach and handle their usual functions without the use of their broken arm.

This makes logical sense, and it even seems just, until you consider racial income inequality.

The statistics are staggering – large racial wage gaps are glaringly apparent in the U.S.. Pew Research reports that, in 2015, among full- and part-time workers in the nation, black Americans earned just 75% as much as white Americans in median hourly earnings. Average hourly wages for black and Hispanic men were $15 and $14 respectively, compared with $21 for white men. The hourly earnings of white women ($17) were higher than those of black and Hispanic women ($13 and $12, respectively). There have been no improvements in the hourly earnings of black or Hispanic men over the 35-year period between 1980 and 2015. Some of the wage gaps can be attributed to the fact that lower shares of black and Hispanic Americans are college educated (which is problematic in and of itself), but even considering just those with a bachelor’s degree or more, Pew Research found that wage gaps by race and ethnicity persist. College-educated black and Hispanic men earn roughly 80% the hourly wages of white college educated men ($25 and $26 vs. $32, respectively).

Personal injury claims usually result in confidential settlements, so there is not much data on racial disparities in personal injury claim amounts, but there is enough to notice that injustice is present. In order for a court or insurance companies to award damages to an injured accident victim, they use experts to determine what the damage amount should be. Forensic economists help estimate the potential income a victim could have made if they hadn’t been injured; they are the ones who calculate the lost wage amount and make recommendations to the court/insurance company. A 2009 survey by the National Association of Forensic Economics showed that 43.6% of respondents would use both race and gender data when projecting lost wages. In cases where specific, measurable lost wages aren’t applicable, statistics are used. Because women and persons of color earn significantly less income in our society, this is problematic. It means that race can affect personal injury damages in a negative way – two people who suffer the same injuries may get different amounts due to the color of their skin. And that’s not justice.

In 2016, the Washington Post reported that a 20-year-old African American woman would receive about $1.24 million in future lost wages, but a 20-year-old while male with an identical education and an identical claim for an identical injury would receive almost twice that amount -$2.28 million.

This problem isn’t just theoretical. Race is impacting real personal injury settlements all the time, and it has been for decades. In 1911, in Blackburn v. Louisiana Ry. & Navy Co., the Louisiana Supreme Court reduced damages awarded for an African American man by almost 70%, citing “the well-known improvidence of the colored race, and the irregular life these colored brakemen lead.” In 1905, a New York federal court similarly reduced damage amount for African American victims of a steamship crash, citing “the difference in the vitality of the two races”. Take these 4 examples of how race affects personal injury damages in modern-day, real-life situations:

• In one infamous personal injury case in Tampa, an African American teacher with a master’s degree was initially offered only $12,000 to settle after an accident that left her seriously injured. After four years, and multiple surgeries, she was offered $300,000. Her lawyer felt that amount still was less than what she deserved, so the case went to trial. After three weeks, a jury awarded her $1.57 million.
• In another particularly blatant and infamous case, a pre-school aged son of two college graduates, one with a master’s degree, suffered mental disabilities due to exposure to lead paint in the family’s apartment. Their lawyers sought $3.4 million; the defense estimated damages to be $1.5 million, because they reasoned that the boy was unlikely to get a higher education degree because he was Hispanic. Forensic economists backed their view, and the jury only awarded the family $2 million dollars.
• In Illinois, one study revealed that injured construction workers who were white received, on average, settlements that were $6,000 higher than their Hispanic or black colleagues, regardless of other case factors.
• In Berkeley, California, a black motorcyclist injured in an accident received an initial offer of $125,000 from the insurance company, which was only $75,000 more than the policy’s bottom limit and didn’t match the cost of the losses or claims for similar cases in the same location. Eventually his settlement was negotiated at $425,000.

What’s being done to address this racism in the legal system when it comes to personal injury claims? Well, only one federal legislative effort has attempted to address this problem so far (The Fair Calculations in Civil Damages Act of 2016, a bill introduced by Senator Gillbrand). In 2019, California passed a law, the first of its kind to be passed, that prohibits “the estimation, measure, or calculation of past, present, or future damages for lost earning or impaired earning capacity resulting from personal injury or wrongful death from being reduced based on race, ethnicity, or gender.”

There is still much work to do in the legal sphere to advance racial justice.

When it comes to your personal injury case – when you are injured in an accident caused by someone else’s negligence and are seeking fair compensation – you need lawyers who understand potential racial or gender bias and who will relentlessly pursue the justice you deserve on your behalf. The Florida Law Group serves clients all across the state of Florida, and we are dedicated to helping you recover maximum compensation. Call now to schedule a free consultation with one of our attorneys. You never pay us anything unless we win your case!