Measure of Damages – Elements of Noneconomic Damages

Posted Tuesday, June 13, 2017 by Ed Harper

WPI 30.06 states, “The pain and suffering, both mental and physical [see RCW 4.56.250(1)(b)] experienced and with reasonable probability to be experienced in the future.”

RCW 4.56.250(1)(b) – this statute holds noneconomic damages are “subjective, nonmonetary losses, including but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of parent – child relationship.”

The case of Bitzan v. Parisi, 88 Wn.2d 116, 550 P2d 775 (1977) is instructive on this issue. The Supreme Court in Washington determined this damage instruction must include all elements supported by the evidence. Failure to include an element of damage in a jury instruction is a reversible error when there is enough evidence to support it.

Here, Defendant Ernest Parisi rear-ended Plaintiff Thomas Bitzan’s car. The plaintiff recovered on a verdict for future and present damages. A motion at the trial court level overturned this verdict, which the appellate court upheld. At the Supreme Court, the court granted review and reversed the appellate court’s decision. This decision was based on the failure of the trial court to allow a damages instruction on future damages based solely on lay witness supportive testimony.

“The question of what evidence here is necessary to support an instruction on future disability, pain, suffering and loss of earnings requires an examination of the sufficiency of lay testimony for that purpose including testimony of subjective symptoms is contrasted with objective symptoms.… In this case there is, however, lay testimony generally to the effect of it bits and sustained pain, suffering, disability and loss of earnings from the time of the December 14, 1971 accident to the date of trial on July 23, 1973, a period of over 19 months. For reasons next stated, we hold the lay testimony, reviewed sufficient, alone, to support the instruction on future damages. There is no reason layman may not testify to their sensory perceptions, the weight of the testimony to be determined by the trier of fact. Physical movement by the injured person can be seen and described by a layman with no prior medical training or skill.” Bitzan at pgs. 119 – 121.

Regarding future damages, “Proof of pain and suffering as late as the time of trial even though subjective and character will warrant an instruction on future damages. The same is true of proof of disability and lost earnings. The continued existence of these elements of damage at the time of trial permits a reasonable inference that future damage will be sustained. Expert medical testimony to this effect may also be given, but it is not essential. Such evidence if unfavorable is admissible however to limit recovery.” Bitzan at 122, (cites omitted).

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