California Civil Jury Instructions (CACI)

3903D. Lost Earning Capacity (Economic Damage)

[Insert number, e.g., "4."] The loss of [name of plaintiff]'s ability to earn money.

To recover damages for the loss of the ability to earn money, [name of plaintiff] must prove the amount of money [he/she] would have been reasonably certain to earn if the injury had not occurred. It is not necessary that [he/she] have a work history.

Directions for Use

This instruction is not intended for use in employment cases.

If lost profits are asserted as an element of damages, see CACI No. 3903N, Lost Profits (Economic Damage).

Sources and Authority

"Damages may be awarded for lost earning capacity without any proof of actual loss of earnings." (Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 348, fn. 6 [100 Cal.Rptr.2d 854], internal citations omitted.)

"Loss of earning power is 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 damages in this respect are awarded for the loss of ability thereafter to earn money." (Connelly v. Pre-Mixed Concrete Co. (1957) 49 Cal.2d 483, 489 [319 P.2d 343].)

" 'To entitle a plaintiff to recover present damages for apprehended future consequences, there must be evidence to show such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.' " (Bellman v. San Francisco High School Dist. (1938) 11 Cal.2d 576, 588 [81 P.2d 894], internal citation omitted.)

"[I]t is not necessary for a party to produce expert testimony on future earning ability although some plaintiff's attorneys may choose as a matter of trial tactics to present such evidence." (Gargir v. B'Nei Akiva (1998) 66 Cal.App.4th 1269, 1282 [78 Cal.Rptr.2d 557], internal citations omitted.)

The Supreme Court has stated: " 'Under the prevailing American rule, a tort victim suing for damages for permanent injuries is permitted to base his recovery "on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury." ' " (Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153 [211 Cal.Rptr. 368, 695 P.2d 665], internal citations omitted.)

"[T]he majority view is that no deduction is made for the injured party's expected living expenses during the lost years." (Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 175 [87 Cal.Rptr.2d 626], internal citations omitted.)

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, §§ 1404-1405

4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss, §§ 52.10-52.11 (Matthew Bender)

California Tort Damages (Cont.Ed.Bar 1988) Bodily Injury, § 1.42

15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)

6 California Points and Authorities, Ch. 65, Damages (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, § 5:15

(Revised April 2004)