CACI No. 3903D. Lost Earning Capacity (Economic Damage)

Judicial Council of California Civil Jury Instructions (2023 edition)

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3903D.Lost Earning Capacity (Economic Damage)
[Insert number, e.g., “4.”] The loss of [name of plaintiff]’s ability to earn
To recover damages for the loss of the ability to earn money as a result
of the injury, [name of plaintiff] must prove:
1. That it is reasonably certain that the injury that [name of plaintiff]
sustained will cause [him/her/nonbinary pronoun] to earn less
money in the future than [he/she/nonbinary pronoun] otherwise
could have earned; and
2. The reasonable value of that loss to [him/her/nonbinary pronoun].
In determining the reasonable value of the loss, compare what it is
reasonably probable that [name of plaintiff] could have earned without
the injury to what [he/she/nonbinary pronoun] can still earn with the
injury. [Consider the career choices that [name of plaintiff] would have
had a reasonable probability of achieving.] It is not necessary that [he/
she/nonbinary pronoun] have a work history.
New September 2003; Revised April 2004, April 2008, May 2017, November 2020
Directions for Use
This instruction is not intended for use in employment cases.
Use this instruction along with CACI No. 3906, Lost Earnings and Lost Earning
Capacity - Jurors Not to Reduce Damages on Basis of Race, Ethnicity, or Gender
(Economic Damage).
If lost profits are asserted as an element of damages, see CACI No. 3903N, Lost
Profits (Economic Damage).
If there is a claim for both lost future earnings and lost earning capacity, give also
CACI No. 3903C, Past and Future Lost Earnings (Economic Damage). The verdict
form should ensure that the same loss is not computed under both standards.
In the last paragraph, include the bracketed sentence if the plaintiff is of sufficient
age that reasonable probabilities can be projected about career opportunities.
Sources and Authority
Estimations, Measures, or Calculations of Past, Present, or Future Damages.
Civil Code section 3361.
“Before [lost earning capacity] damages may be awarded, a jury must (1) find
the injury that the plaintiff sustained will result in a loss of earning capacity, and
(2) assign a value to that loss by comparing what the plaintiff could have earned
without the injury to what she can still earn with the injury.” (Licudine v.
Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 887 [208 Cal.Rptr.3d
“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.” (Connolly v. Pre-Mixed Concrete Co. (1957) 49
Cal.2d 483, 489 [319 P.2d 343].)
“Because these damages turn on the plaintiff’s earning capacity, the focus is ‘not
[on] what the plaintiff would have earned in the future[,] but [on] what she could
have earned.’ Consequently, proof of the plaintiff’s prior earnings, while relevant
to demonstrate earning capacity, is not a prerequisite to the award of these
damages, nor a cap on the amount of those damages. Indeed, proof that the
plaintiff had any prior earnings is not required because the ‘vicissitudes of life
might call upon [the plaintiff] to make avail of her capacity to work,’ even if she
had not done so previously.” (Licudine, supra, 3 Cal.App.5th at pp. 893-894,
internal citations omitted.)
“Such damages are ‘. . . awarded for the purpose of compensating the plaintiff
for injury suffered, i.e., restoring . . . [her] as nearly as possible to . . . [her]
former position, or giving . . . [her] some pecuniary equivalent.’ Impairment of
the capacity or power to work is an injury separate from the actual loss of
earnings.” (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 412 [196
Cal.Rptr. 117], original italics, internal citations omitted.)
“[T]he jury must fix a plaintiff’s future earning capacity based on what it is
‘reasonably probable’ she could have earned.” (Licudine, supra, 3 Cal.App.5th at
p. 887.)
“A plaintiff’s earning capacity without her injury is a function of two
variables - the career(s) the plaintiff could have pursued and the salaries
attendant to such career(s).” (Licudine, supra, 3 Cal.App.5th at p. 894.)
“How is the jury to assess what career(s) are available to the plaintiff? Is the sky
the limit? In other words, can a plaintiff urge the jury to peg her earning
capacity to the salary of a world-class athlete, neuroscientist, or best-selling
author just by testifying that is what she wanted to do? Or must the jury instead
determine a plaintiff’s earning capacity by reference to the career choices the
plaintiff stood a realistic chance of accomplishing? We conclude some modicum
of scrutiny by the trier of fact is warranted, and hold that the jury must look to
the earning capacity of the career choices that the plaintiff had a reasonable
probability of achieving.” (Licudine, supra, 3 Cal.App.5th at p. 894.)
“Once the jury has determined which career options are reasonably probable for
the plaintiff to achieve, how is the jury to value the earning capacity of those
careers? Precedent suggests three methods: (1) by the testimony of an expert
witness; (2) by the testimony of lay witnesses, including the plaintiff; or (3) by
proof of the plaintiff’s prior earnings in that same career. As these options
suggest, expert testimony is not always required.” (Licudine, supra, 3
Cal.App.5th at p. 897.)
“[E]xpert testimony is not vital to a claim for loss of earning capacity.” (Lewis v.
Ukran (2019) 36 Cal.App.5th 886, 893 [248 Cal.Rptr.3d 839].)
“A trier of fact may draw the inference that the plaintiff has suffered a loss of
earning capacity from the nature of the injury, but it is not required to draw that
inference.” (Martinez v. State Dept. of Health Care Services (2017) 19
Cal.App.5th 370, 374 [227 Cal.Rptr.3d 483].)
‘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
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1842, 1843
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.42
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§§ 52.10, 52.11 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.46
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, §§ 64.140, 64.175
(Matthew Bender)
California Civil Practice: Torts § 5:14 (Thomson Reuters)

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