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

Judicial Council of California Civil Jury Instructions (2017 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 the reasonable value of that
loss to [him/her]. It is not necessary that [he/she] have a work history.
New September 2003; Revised April 2004, April 2008
Directions for Use
This instruction is not intended for use in employment cases.
If lost profit are asserted as an element of damages, see CACI No. 3903N, Lost
Profit (Economic Damage).
If there is a claim for both lost future earnings and lost earning capacity, give also
CACI No. 3903C. The verdict form should ensure that the same loss is not
computed under both standards.
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.” (Connolly v. Pre-Mixed Concrete Co.
(1957) 49 Cal.2d 483, 489 [319 P.2d 343].)
• “The test [for lost earning capacity] is not what the plaintiff would have earned
in the future but what she could have earned. . . . 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.)
• “[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
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1666, 1667
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 (Matthew Bender)
1 California Civil Practice: Torts, § 5:15 (Thomson Reuters)

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