§23.14 Personal Injury Damages

The Case:Overstreet v. Shoney’s Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999).

The Basic Facts:Plaintiff was a patron at Defendant restaurant when she was blinded by a glass shard after a waitress dropped a plate near her. Plaintiff subsequently brought a negligence action against Defendant restaurant and the waitress who dropped the plate.

The Bottom Line:

• “The purpose of tort damages in Anglo-American law is to compensate the wronged party for damage or injury caused by the defendant’s conduct.Inland Container Corp. v. March, 529 S.W.2d 43, 44 (Tenn. 1975); Louisville, Nashville & Great Southern R.R. v. Guinan, 79 Tenn. 98, 103 (1883); Vertrees v. Tennessee Auto Corp., 5 Tenn. App. 140, 151 (1927).The goal of awarding damages is to repair the wronged party’s injury or, at least, to make the wronged party whole as nearly as may be done by an award of money.See [Restatement (Second) of Torts §§ 901, cmt. a (1979)]; 4 [Fowler V. Harper, et al., The Law of Torts §§ 25.1, at 493 (2d ed. 1986)] (‘Harper’).”4 S.W.3d at 703.

• “The party seeking damages has the burden of proving them.See Inman v. Union Planters Nat’l Bank, 634 S.W.2d 270, 272 (Tenn. Ct. App. 1982).In tort cases, the proof of damages need not be exact or mathematically precise.Provident Life & Accident Ins. Co. v. Globe Indem. Co., [3 S.W.2d 1057, 1058 (Tenn. 1928)]; Airline Constr. Inc. v. Barr, 807 S.W.2d 247, 274 (Tenn. Ct. App. 1990).Rather, the proof must be as certain as the nature of the case permits and must enable the trier of fact to make a fair and reasonable assessment of the damages.Pinson & Assocs. Ins. Agency, Inc. v. Kreal, 800 S.W.2d 486, 488 (Tenn. Ct. App. 1990); Wilson v. Farmers Chem. Ass’n, [444 S.W.2d 185, 189 (Tenn. Ct. App. 1969)].The amount of damages is not controlled by fixed rules of law, Blalock v. Temple, 276 S.W.2d 493, 497 (Tenn. Ct. App. 1954)], or mathematical formulas.Brown v. Null, 863 S.W.2d 425, 429-30 (Tenn. Ct. App. 1993).It is instead left to the sound discretion of the trier of fact.Reeves v. Catignani, 7 S.W.2d 38, 39-40 (Tenn. 1928)]; Sholodge Franchise Sys., Inc. v. McKibbon Bros., Inc., 919 S.W.2d 36, 42 (Tenn. Ct. App. 1995).”Id.

• “Damages may never be based on mere conjecture or speculation.Western Sizzlin, Inc. v. Harris, 741 S.W.2d 334, 335-36 (Tenn. Ct. App. 1987); Nashland Assocs. v. Shumate, 730 S.W.2d 332, 334 (Tenn. Ct. App. 1987).However, uncertain or speculative damages are prohibited only when the existence, not the amount, of damages is uncertain.Jennings v. Hayes, 787 S.W.2d 1, 3 (Tenn. Ct. App. 1989); Cummins v. Brodie, 667 S.W.2d 759, 765 (Tenn. Ct. App. 1983).Evidence required to support a claim for damages need only prove the amount of damages with reasonable certainty.Airline Constr., Inc. v. Barr, 807 S.W.2d at 274; Redbud Coop. Corp. v. Clayton, 700 S.W.2d 551, 561 (Tenn. Ct. App. 1985).”Id.

• “Loss or impairment of future earning capacity is an element of damages in a personal injury action.Wolfe v. Vaughn, 152 S.W.2d 631, 635 (Tenn. 1941)]; Acuff v. Vinsant, [443 S.W.2d 669, 672 (Tenn. Ct. App. 1969)].Earning capacity refers not to actual earnings, but rather to the earnings that a person is capable of making.Southern Coach Lines v. Wilson, [214 S.W.2d 55, 56 (Tenn. Ct. App. 1948)] (earning capacity refers to the loss of the power to earn); Anderson v. Litzenberg, 694 A.2d 150, 161 (Md. Ct. Spec. App. 1997); [Restatement (Second) of Torts §§ 924(b) (1979)].”Id.

• “The extent of an injured person’s loss of earning capacity is generally arrived at by comparing what the person would have been capable of earning but for the injury with what the person is capable of earning after the injury.Hunter v. Hardnett, 405 S.E.2d 286, 288 (Ga. Ct. App. 1991); LaFever v. Kemlite Co., 706 N.E.2d 441, 455 (Ill. 1998); Bergquist v. Mackay Engines, Inc., 538 N.W.2d 655, 659 (Iowa Ct. App. 1995); Wal-Mart Stores v. Cordova, 856 S.W.2d 768, 770 (Tex. Ct. App. 1993); Klink v. Cappelli, 508 N.W.2d 435, 437 (Wis. Ct. App. 1993); [Restatement (Second) of Torts §§ 924 cmt. d (1979)].If the injury is permanent,^FN1 this amount should be multiplied by the injured person’s work life expectancy, and the result should be discounted to its present value.Conte v. Flota Mercante Del Estado, 277 F.2d 664, 669 (2d Cir. 1960); Athridge v. Iglesias, 950 F. Supp. 1187, 1193 (D.D.C. 1996); Yosuf v. United States, 642 F. Supp. 432, 440 (M.D. Pa. 1986); Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1164-65 (Ind. Ct. App. 1990); Anderson v. Litzenberg, 694 A.2d at 162.

FN1Damages for impairment of earning capacity may be awarded for either permanent or temporary impairments.Dingus v. Cain, [406 S.W.2d 169, 171 (Tenn. Ct. App. 1966)]; Southern Coach Lines v. Wilson, 214 S.W.2d at 56.If the impairment is temporary, the multiplier should be the duration of the actual impairment rather than the injured person’s work life expectancy.

The injured party has the burden of proving his or her impairment of earning capacity damages.Sutton v. Overcash, 623 N.E.2d 820, 838 (Ill. Ct. App. 1993); Southwestern Bell Tel. Co. v. Sims, 615 S.W.2d 858, 864 (Tex. Ct. App. 1981).In order to recover these damages, the injured person must first prove with reasonable certainty that the injury has or will impair his or her earning capacity.Moattar v. Foxhall Surgical Assocs., 694 A.2d 435, 439-40 (D.C. 1997); Barnes v. Cornett, 213 S.E.2d 703, 705 (Ga. Ct. App. 1975); Wahwasuck v. Kansas Power & Light Co., 828 P.2d 923, 931 (Kan. 1992); Young v. Stewart, 399 S.E.2d 344, 346-47 (N.C. Ct. App. 1991).Then, the injured party must introduce evidence concerning the extent of the impairment of his or her earning capacity.”

Id. at 703-04.

• “The proof concerning impairment of earning capacity is, to some extent, speculative and imprecise.Marress v. Carolina Direct Furniture, Inc., 785 S.W.2d 121, 123 (Tenn. Ct. App. 1989); see also Altman v. Alpha Obstetrics & Gynecology, P.C., 679 N.Y.S.2d 642, 643-44 (N.Y. App. Div. 1998); Shivers v. Riney, 695 P.2d 951, 955 (Or. Ct. App. 1985); Border Apparel-East, Inc. v. Guadian, 868 S.W.2d 894, 897 (Tex. Ct. App. 1993); 4 [Harper], §§ 25.8, at 553; [2 Stuart M. Speiser, et al., The American Law of Torts §§ 8:27, at 625 (1985)] (“Speiser”).However, this imprecision is not grounds for excluding the evidence.Turrietta v. Wyche, 212 P.2d 1041, 1047-48 (N.M. 1949); Kaczkowski v. Bolubasz, 421 A.2d 1027, 1037 (Pa. 1980).”Id. at 704.

• “The courts have found competent and admissible any evidence which tends to prove the injured person’s present earning capacity and the probability of its increase or decrease in the future.Martinez v. Jordan, 553 P.2d 1239, 1240 (Ariz. Ct. App. 1976); Anderson v. Litzenberg, 694 A.2d at 162; Turrietta v. Wyche, 212 P.2d at 1047; Wilson v. B.F. Goodrich Co., 627 P.2d 1280, 1282 (Or. Ct. App. 1981).Thus, the courts have routinely admitted evidence concerning numerous factors, including the injured person’s age, health, intelligence, capacity and ability to work, experience, training, record of employment, and future avenues of employment.Marress v. Carolina Direct Furniture, Inc., 785 S.W.2d at 123-24; Clinchfield R.R. v. Forbes, [417 S.W.2d 210, 215 (Tenn. Ct. App. 1966)]; Kwapien v. Starr, 400 N.W.2d 179, 184 (Minn. Ct. App. 1987); Allers v. Willis, 643 P.2d 592, 595 (Mont. 1982); Schaefer v. McCreary, 345 N.W.2d 821, 824 (Neb. 1984); [4 Harper, §§ 25.8, at 550]; [2 Speiser, §§ 8:27, at 631-32].”Id.

• “Impairment of earning capacity is not necessarily measured by an injured person’s employment or salary at the time of the injury.Schaefer v. McCreary, 345 N.W.2d at 824.It is not uncommon for an injured person to assert that an injury has caused him or her to abandon plans to change employment, to obtain additional education or training, or to otherwise advance their career.In the face of such an assertion, the trier of fact must distinguish between persons with only vague hopes of entering a new profession and those with the demonstrated ability and intent to do so.See [Jacob A. Stein, 2 Personal Injury Damages §§ 6:15, at 6-55 (Gerald W. Boston, ed., 3d ed. 1997)].Often, making this distinction depends on the steps the person has actually taken to accomplish his or her educational or career goals.”Id. at 704-05.

• “Students are among the class of injured persons for whom educational and career plans are relevant in determining impairment of earning capacity.A majority of courts have concluded that a student or trainee has the right to have a jury consider his or her education, training, and proposed occupation or career in calculating damages for impaired earning capacity.Thus, a student may present evidence of his or her educational accomplishments and plans and of the earning potential of persons engaged in the profession or career the student intends to pursue, as long as the evidence is not wildly speculative.Dickens v. United States, 545 F.2d 886, 892-93 (5th Cir. 1977) (a medical student aspiring to be a surgeon was permitted to present evidence of his academic success, his medical training, and his clear intent and aptitude); Whittle v. Schemm, 402 F. Supp. 1294, 1299-1300 (E.D. Pa. 1975) (a first-year junior college student was permitted to present evidence of his plans to become an architect); Bowens v. Patterson, 716 So. 2d 69, 87-88 (La. Ct. App. 1998) (a high school student was permitted to present evidence of plans to attend college and graduate with a degree in computer science); Lee v. USAA Cas. Ins. Co., 540 So. 2d 1083, 1091-92 (La. Ct. App. 1989) (a high school student was permitted to present evidence of plans to attend college and have a career in banking); Kenton v. Hyatt Hotels Corp., 693 S.W.2d 83, 92-94 (Mo. 1985) (a second-year law student was permitted to present evidence concerning her plans to graduate from law school and have a legal career). ^FN2

FN2The courts have reached similar Conclusions with regard to promising athletes whose careers were cut short. See Clinchfield R.R. v. Forbes, [417 S.W.2d at 215]; Connolly v. Pre-mixed Concrete Co., 319 P.2d 343, 345-46 (Cal. 1957); Horton v. McCrary, 620 So. 2d 918, 931 (La. Ct. App. 1993), rev’d on other grounds, 635 So.2d 199 (La. 1994).”

Id. at 705.

• “It will be helpful at the outset to define each of the non-economic damages that the jury awarded - pain and suffering, permanent impairment and/or disfigurement, and loss of enjoyment of life - both past and future.Although conceptually they all can be encompassed within the general rubric of pain and suffering, each of these types of damages are separate and distinct losses to the victim.See Thompson v. National R.R. Passenger Corp., 621 F.2d 814, 824 (6th Cir. 1980).The drafters of the [Tennessee Pattern Jury Instructions] have reached a similar Conclusion.See T.P.I. 3 - Civil 14.10 through 14.17.”Id. at 715.

• “Pain and suffering encompasses the physical and mental discomfort caused by an injury.Rufino v. United States, 829 F.2d 354, 359 n.8 (2nd Cir. 1987); Kirk v. Washington State Univ., 746 P.2d 285, 292 (Wash. 1987).It includes the ‘wide array of mental and emotional responses’ that accompany the pain, characterized as suffering, McDougald v. Garber, 504 N.Y.S.2d 383, 385 (N.Y. Sup. Ct. 1986); such as anguish, distress, fear, humiliation, grief, shame, or worry.See [Charles T. McCormick, Damages §§ 88, at 315 (1935)].The extreme discomfort caused by lying in a hospital bed in a leg traction device with holes punched in one’s limbs is an example of the pain and suffering for which damages may be awarded.Owen v. Locke, 650 S.W.2d 51, 52 (Tenn. Ct. App. 1983).”Id.

• “A permanent injury differs from pain and suffering in that it is an injury from which the plaintiff cannot completely recover.Jordan v. Bero, 210 S.E.2d 618, 630 (W. Va. 1974).It prevents a person from living his or her life in comfort by adding inconvenience or loss of physical vigor.Wheeler v. Bennett, 849 S.W.2d 952, 955 (Ark. 1993).Disfigurement is a specific type of permanent injury that impairs a plaintiff’s beauty, symmetry, or appearance.Rapp v. Kennedy, 242 N.E.2d 11, 13 (Ill. App. Ct. 1968).Permanent injury may relate to earning capacity, pain, impairment of physical function or loss of the use of a body part, Yates v. Bradley, 396 S.W.2d 735, 738 (Mo. Ct. App. 1965), or to a mental or psychological impairment.Kerr v. Magic Chef, Inc., 793 S.W.2d 927, 929 (Tenn. 1990); International Yarn Corp. v. Casson, 541 S.W.2d 150, 152 (Tenn. 1976).”Id.

• “Damages for loss of enjoyment of life compensate the injured person for the limitations placed on his or her ability to enjoy the pleasures and amenities of life.See Thompson v. National R.R. Passenger Corp., 621 F.2d at 824; Martin v. Southern Ry., [463 S.W.2d 690, 691 (Tenn. 1971)] (approving an award for the ‘intangible elements of damage such as pain, suffering, inconvenience, and deprivation of the normal enjoyments of life’); Mariner v. Marsden, 610 P.2d 6, 12 (Wyo. 1980).This type of damage relates to daily life activities that are common to most people.See, e.g., Nemmers v. United States, 681 F. Supp. 567, 575 (C.D. Ill. 1988) (going on a first date, becoming a parent, reading, debating politics); Dyer v. United States, 551 F. Supp. 1266, 1281 (W.D. Mich. 1982) (sense of taste); Sweeney v. Car/Puter Int’l Corp., 521 F. Supp. 276, 288 (D.S.C. 1981) (recreational or family activities).It can also compensate a victim for the loss of uncommon individual pursuits or talents.See e.g., District of Columbia v. Woodbury, 136 U.S. 450, 459 (1890) (contributing articles to professional journals); McAlister v. Carl, 197 A.2d 140, 145 (Md. 1964) (inability to continue in a particular career); Kirk v. Washington State Univ., 746 P.2d at 292-93 (ballet).The policy underlying the award of loss of enjoyment damages is of making the victim whole in the only way a court can - with an equivalent in money for each loss suffered.See Thompson v. National R.R. Passenger Corp., 621 F.2d at 824.”Id. at 715-16.

Recent Cases:Borner v. Autry, 248 S.W.3d 261 (Tenn. 2009) (holding plaintiff may rely on rebuttable presumption in Tenn. Code Ann. § 24-5-113(a) that medical bills itemized in and attached to complaint are reasonable and necessary if the total amount of the bills is $4,000 or less, but may not rely on the presumption if the bills have been redacted to reflect a total of $4,000 or less); Adkins v. Swensen, No. M2009-00224-COA-R3-CV, 2009 WL 3246625 (Tenn. Ct. App. Oct. 8, 2009) (upholding jury award for future pain and suffering finding such award was not inconsistent with jury’s finding of no permanent injury); Hughes v. Hudgins, No. E2008-01385-COA-R3-CV, 2009 WL 2502001 (Tenn. Ct. App. Aug. 17, 2009) (refusing to rule that plaintiff was entitled to expenses of diagnostic emergency room visit as a matter of law where defendant admitted liability and no injury was diagnosed); Smartt v. NHC Healthcare/McMinnville, LLC, No. M2007-02026-COA-R3-CV, 2009 WL 482475 (Tenn. Ct. App. Feb. 24, 2009) (analyzing compensatory damages award; finding plaintiffs were entitled to separate recoveries for damages under ordinary negligence claims and medical malpractice claims; affirming compensatory damages awardunder ordinary negligence claim for loss of enjoyment of life and pain and suffering, but reversing award for disfigurement finding no proof of permanent disfigurement; and affirming compensatory damages award under medical malpractice theory); Stricklan v. Patterson, No. E2008-00203-COA-R3-CV, 2008 WL 4791485 (Tenn. Ct. App. Nov. 4, 2008) (finding trial court did not err in admitting testimony regarding medical expenses and permanent disability); Anderson v. U.S.A. Truck, Inc., No. W2006-01967-COA-R3-CV, 2008 WL 4426810 (Tenn. Ct. App. Oct. 1, 2008) (upholding jury’s awards of compensatory damages finding material evidence to support verdict); Ambrose v. Batsuk, No. M2006-01131-COA-R3-CV, 2008 WL 1901207 (Tenn. Ct. App. Apr. 30, 2008) (finding weight of evidence supported no damage award even though defendant admitted fault); Hutchison v. Rutt, No. M2006-02255-COA-R3-CV, 2008 WL 539062 (Tenn. Ct. App. Feb. 25, 2008) perm. appeal denied (Aug. 25, 2008) (reducing jury’s damage award finding plaintiff failed to prove causation of certain damages); Marshall v. Cintas Corp., Inc., 255 S.W.3d 60 (Tenn. Ct. App. 2007) (upholding jury’s finding of no damages for permanent impairment and past and future loss of enjoyment of life finding it was supported by weight of the evidence; upholding dismissal of punitive damages claim finding plaintiff failed to allege any willful, wanton, or reckless conduct).

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