In the backseat of a car, a man laments about lost opportunity and an unfulfilled career. He had been a promising prizefighter whose chances had been derailed by his scheming brother. The movie was On the Waterfront and starred Marlon Brando. Loss of earning capacity is like that. It is an item of recoverable damages that focuses not on what would have been, but on what could have been. Loss of ability is considered general damages, and not special damages. The business lawyer Orange county will help you in all business matters and issues that you face in Orange county.
Accordingly, the standard of proof is not what amount of money is the probable or reasonably certain loss but rather, what amount will be reasonable compensation for the loss of the opportunity and ability to work in a chosen field. This is not an inconsequential difference, and the failure to appreciate and apply this element properly can have disastrous consequences for the plaintiff’s financial recovery.
Future wage loss vs. lost earning capacity: What’s the difference?
Civil Code section 3283 provides: “Damages may be awarded, in a judicial proceeding, for detriment resulting after the commencement thereof, or certain to result in the future.” This certainty requirement was imported into CACI 3903C, which instructs the jury that “to recover damages for future lost earnings, the plaintiff must prove the amount of income/earnings/salary/wages, he will be reasonably certain to lose in the future as a result of the injury.” Certainty can be a difficult burden; therefore, CACI 3903C should be used only if the future loss is definite.
For example, if the plaintiff is 63-years-old and was employed at a company with a union contract that would have been in effect for the remainder of The plaintiff’s reasonable work-life expectancy, the earnings loss are quantifiable. As such, it is in the category of special damages. Earning capacity, however, is categorized as an element of general damages “which can be inferred from the nature of the injury, without proof of actual earnings or income either before or after the injury, and damage in this respect are awarded for the loss of ability thereafter to earn money.” Hence, instructs: “To recover damages for the loss of the ability to earn money as a result of the injury, the plaintiff must prove the reasonable value of that loss to him/her. It is not necessary that he/she have a work history.”
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Why does lost earning capacity constitute general rather than special damages?
Before the phrases “economic damages” and “non-economic damages” were coined after the passage of Proposition 51, which disallowed joint and several liabilities for so-called “non-economic damages,” damages were categorized as either general or special. In 1865, the California Supreme Court explained: “Damages are either general or special. General damages are such as the law implies, or presumes to have accrued from the wrong complaint of. Special damages are such as really took place and are not implied by law….”
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