Loss of Earning Capacity

Posted Tuesday, May 30, 2017 by Ed Harper

What can you recover if you cannot work up to your capabilities?

Washington Pattern instruction 30.08 stands for the proposition that one’s loss of earning capacity is the inability to earn money.This is separate from “lost earnings”. Loss of earning capacity focuses on the injured person’s diminished ability to earn money because of his or her injuries. Bartlett v. Hantover, 9 Wn.App. 614, 619 – 620, 513 P 2nd 844 (1973), was affirmed on lost earning capacity, and reversed in part on other grounds by the Supreme Court on review, 84 Wn.2d 426, 520 P.2d 1217 (1974).

In Bartlett the plaintiff was working as a manager of a motel, when he was injured severely when shot by intruders. The injured plaintiff was shot in the head and shoulder and somehow survived. The court stated, “In order to instruct on lost earning capacity, the evidence must show with reasonable certainty that the injured party has suffered an impairment in his ability to make a living. (See McCormick, Damages, Sec. 86, 1935) In Bartlett, the court continues by stating the showing that must be made is that the injury suffered by the plaintiff is an injury that, in fact has diminished the ability of the plaintiff to earn money. (Murray v. Mossman, 52 Wn.2d 885, 889, 320 P. 2nd 1089, 1958)

“The requirement of the law leaves the fixing of the amount of loss to the discernment of the jury. Thus, a child of 3 and an unemployed man of 71 can suffer a loss of earning capacity.” (Sherman v. Seattle, 57 Wn.2d 233, 350 P.2d 316, 1960; Riddell v. Red Lion, 124 Wn. 146, 213 P. 487, 1923) “Evidence of physical impairment must be presented and from that evidence of injury to the body and/or mind of the plaintiff, the jury must assess the amount that will compensate for his lessened money-making faculties and reduced income potentialities.” (Kelley v. Great Northern Railway, 59 Wn.2d 894 370 P.2d 528, 1962; Johnson v. Howard, 45 Wn.2d 433 230 P.2d 736,1954; Handley v. Anacortes Ice Company, 5 Wn.2d 384 100, P.2d 505, 1940; Sheppard P Smith, 198 wash. 395, 80 8P. 2nd 601, 1939; Hirst v. Standard Oil Company of California, 145 wash. 597, 260 1P. 405, 1927; annotation, 18 A. L. R. 3rd 88, 1968). “Evidence of the bodily impairment suffered from the two gunshot wounds amply supported lost earning capacity as an element of damage.” Bartlett at 9 Wn.App. 619 – 620.

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