Carte P. Goodwin
Goodwin & Goodwin, LLP Atkinson, Mohler & Polak
Charleston, West Virginia Charleston, West Virginia
Attorney for the Appellant Attorney for the Appellee
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
2. Future damages are those sums awarded
to an injured party for, among other things: (1) Residuals or future effects
of an injury which have reduced the capability of an individual to function
as a whole man; (2) future pain and suffering; (3) loss or impairment of
earning capacity; and (4) future medical expenses. Syl. Pt. 10, Jordan
v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).
3. To form a legal basis for recovery of
future permanent consequences of the negligent infliction of a personal injury,
it must appear with reasonable certainty that such consequences will result
from the injury; contingent or merely possible future injurious effects are
too remote and speculative to support a lawful recovery. Syl. Pt. 7, Jordan
v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).
4. The permanency or future effect of any injury
must be proven with reasonable certainty in order to permit a jury to award an
injured party future damages. Syl. Pt. 9, Jordan v. Bero, 158 W.Va.
28, 210 S.E.2d 618 (1974).
5. The test governing future damages as set forth
in syllabus points seven and nine of Jordan v. Bero, 158 W.Va.
28, 210 S.E.2d 618 (1974), requires that either the negligently inflicted
injury or its direct consequences be proven by a reasonable degree of certainty
to have a lasting, permanent future effect.
6. Where an injury is of such a character as to be obvious, the effects of which are reasonably common knowledge, it is competent to prove future damages either by lay testimony from the injured party or others who have viewed his injuries, or by expert testimony, or from both lay and expert testimony, so long as the proof adduced thereby is to a degree of reasonable certainty. But where the injury is obscure, that is, the effects of which are not readily ascertainable, demonstrable or subject of common knowledge, mere subjective testimony of the injured party or other lay witnesses does not provide sufficient proof; medical or other expert opinion testimony is required to establish the future effects of an obscure injury to a degree of reasonable certainty. Syl. Pt. 11, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).
This case involves a certified question from the Circuit Court of Kanawha County, presented to this Court pursuant to West Virginia Code § 58-5-2 (1998) (Supp. 2004) (See footnote 1) and in adherence with Rule 13 of the West Virginia Rules of Appellate Procedure. (See footnote 2) The question, certified by order dated November 6, 2003, arose in an underlying tort action and concerns the nature of evidence needed to support a claim for future damages in the form of lost earnings. The question as certified as well as the trial court's answer follow:
v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974), require a personal injury
plaintiff to demonstrate through medical evidence the permanent deterioration
of her physical condition where her claim for lost future wages depends not on the lasting effect of
her injuries, but rather on Plaintiff proving that a specific employment
opportunity has been forever lost to her as a proximate cause of the defendant's
Answer of the circuit court:
West Virginia law requires proof of a permanent injury
before future damages can be claimed; thus, prior to claiming damages for the future
permanent consequences of a personal injury, the plaintiff must establish
a permanent medical injury resulting from the accident.
For the reasons stated below, this Court disagrees with the conclusion reached by the lower court.
To fulfill this overarching goal of making an injured party whole, compensatory damages include not only actual losses but also the anticipated losses due to the future effects of an injury caused by negligence. Future damages are awarded to an injured party for, among other things: (1) Residuals or future effects of an injury which have reduced the capability of an individual to function as a whole man; (2) future pain and suffering; (3) loss or impairment of earning capacity; and (4) future medical expenses. Syl. Pt. 10, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974). In syllabus point seven of Jordan we formally adopted the test, first articulated in Wilson v. Fleming, 89 W.Va. 553, 109 S.E. 810 (1921), for recovering future damages:
To form a legal basis for recovery
of future permanent consequences of the negligent infliction of a personal injury,
it must appear with reasonable certainty that such consequences will result from
the injury; contingent or merely possible future injurious effects are too remote
and speculative to support a lawful recovery.
We further explained in syllabus point nine of Jordan that [t]he permanency or future effect of any injury must be proven with reasonable certainty in order to permit a jury to award an injured party future damages. 158 W.Va. at 29, 210 S.E.2d at 623.
B. Certified Question Clarified
The question as submitted refers to the future damages at issue as lost wages. The parties interchangeably employ the terms impaired earning capacity, lost earning opportunity and lost future income or wages to characterize the damages involved. (See footnote 4) In actuality, the relief sought by Appellant as the plaintiff below is compensation for future wages and benefits lost as a result of her discharge from the Air National Guard. In order to accurately represent the future damages being sought, we invoke our discretion to reframe the question as certified (See footnote 5) in the following way:
Does Jordan v. Bero, 158
W.Va. 28, 210 S.E.2d 618 (1974), require a personal injury plaintiff to demonstrate
through medical evidence the permanent deterioration of her physical condition
where her claim for lost future income depends not on the lasting effect of her
injuries, but rather on whether the defendant's tortious conduct was a proximate
cause of plaintiff losing forever a specific employment opportunity?
The court below answered the question as certified in the affirmative based on the conclusion that Jordan and subsequent relevant cases require that future damage claims be premised on a permanent medical injury resulting from the accident. We proceed with an examination of the issues of permanence and type of injury which this response raises.
Appellant essentially asserts that a permanent injury is not a prerequisite to a recovery for future damages and instead asserts that the test set forth in Jordan allows recovery for future permanent consequences of the negligent infliction of a personal injury if it appears reasonably certain that such permanent consequences will result from the injury. Appellee claims that a permanent injury to the person is a long-standing precondition to an award of future lost earnings. We find neither argument entirely representative of the relevant law as announced in Jordan or as applied in cases following Jordan.
We return to the previously cited language of syllabus point seven of Jordan for the test governing future damage claims:
To form a legal basis for recovery of future permanent consequences of the negligent infliction of a personal injury, it must appear with reasonable certainty that such consequences will result from the injury; contingent or merely possible future injurious effects are too remote and speculative to support a lawful recovery.
158 W.Va. at 29, 210 S.E.2d at 622-23. It is plain that the test for future damages as set forth in Jordan requires that the consequences of the negligent infliction of a personal injury be demonstrated with a reasonable degree of certainty. Id. (emphasis added). The consequences to which the reasonable certainty standard is to be applied are later characterized in syllabus point nine of Jordan as [t]he permanency or future effect of any injury. 158 W.Va. at 29, 210 S.E.2d at 623. Our subsequent opinions employed an abbreviated alternative reference to permanent consequence as permanent injury. See e.g. Adkins v. Foster, 187 W.Va. 730, 733, 421 S.E.2d 271, 274 (1992) (stating that Jordan requires proof of permanent injury and reasonable degree of certainty as prerequisites to recovery for impairment of earning capacity). Unfortunately, this alternative characterization has apparently led to confusing the permanency of the consequence with the permanency of the negligently inflicted injury forming the basis of the lawsuit.
As we have noted, the relevant language in Jordan clearly
focuses on the consequences resulting from the negligent act rather than
the nature of any injury sustained as a result of that act. This approach
to future damage claims is in full accord with the overall goal of compensatory
damages _ providing an injured person the opportunity to be placed in as similar a position as he or she would have been but for the
negligent conduct. Were we to follow Appellee's suggestion that the direct
injury sustained due to negligence must be a permanent injury, we would be
undermining this long-accepted principle of recovery of damages. By limiting
recovery of future damages to such permanent injuries, we would be denying
the possibility of recovering future damages in situations where a person
suffers an injury with temporary or short-duration medical impairment that
may readily be proven to have a permanent or reasonably certain future consequence
based on some level of recovery within a specific time period. To be made
whole with respect to future damages in such cases, a plaintiff would be
compelled to delay a trial on the issue of damages until all loss had been
actually sustained. Such a resolution is manifestly impractical if not wholly
impossible. It can be said that the very reason for the theory of allowing
future damages to be proven with reasonable certainty arises from the need
to avoid such impractical and impossible results while still providing a
Contrary to the conclusion reached by the lower
court, the test applicable to future damages in Jordan has never required
that the injury sustained by a plaintiff in a personal injury case be permanent
in nature or result in permanent impairment to the person in order to qualify
for recovery of future damages. Rather, the test governing future damages
as set forth in syllabus points seven and nine of Jordan v. Bero,
158 W.Va. 28, 210 S.E.2d 618 (1974), requires that either the negligently
inflicted injury or its direct consequences be proven to a reasonable degree of certainty to have a lasting,
permanent future effect.
D. Nature of the Negligently Inflicted Injury
By answering the certified question in the affirmative, the lower court implies that the Jordan test applicable to future damages requires a personal injury plaintiff to demonstrate through medical evidence the permanent deterioration of a medical condition. We conclude that the lower court unduly relies on the permanent physical nature of an alleged physical injury in describing the type of evidence needed to establish a reasonable degree of certainty under the future damages test of Jordan.
The test formulated in Jordan grew out of
a case involving a serious physical injury. In Jordan, a ten-year-old
had sustained a severe and permanent brain injury after being hit by a car
while riding his bicycle. We were called upon in Jordan to delineate
the quantum of evidence necessary to meet the established reasonable certainty
standard to support a jury instruction on the issue of damages for lasting
and permanent effects of an injury suffered at the hands of a negligent defendant.
Our decision in Jordan necessarily focused on the medical evidence
needed to prove a permanent physical injury in the context of an earnings
capacity claim because of the plaintiff's reliance on his physical injury
as the reason for his impaired earning capacity. Likewise, subsequent cases
on the propriety of awards for loss or impairment of earning capacity have frequently discussed
the medical permanency of a physical injury because a physical injury, at
least in part, was the reason for loss of future earnings. See e.g. Gerver
v. Benavides, 207 W.Va. 228, 530 S.E.2d 701 (1999) (severe groin pain
resulting from medical malpractice affected future earning capacity); Liston
v. Univ. of West Virginia Bd. of Trustees, 190 W.Va. 410, 438 S.E.2d
590 (1993) (permanent injury to right arm and elbow from slip and fall accident
claimed to have affected future earning capacity); Adkins v. Foster,
187 W.Va. 730, 421 S.E.2d 271 (1992) (permanency of cervical strain and exacerbation
of preexisting depression resulting from car accident forming basis of loss
of earning capacity claim). Nevertheless, this Court has never definitively
stated that a physical injury, with permanent effects, is a prerequisite
for recovery of future damages based on lost future income or lost earning
capacity. Rather, the test we adopted in syllabus point nine of Jordan, focuses
on a heightened level of proof which is necessary to support a jury award
for any future damages. In applying the same future damages test to a claim
involving medical expenses we said: Although Jordan and cases
dealing with similar subject matter sometimes speak in terms of compensating
a plaintiff for the anticipated cost of treating a 'permanent injury,' we
have never held that lasting physical harm is an absolute prerequisite for
recovery of future medical expenses. Bower v. Westinghouse Elec.
Corp., 206 W.Va. 133, 139, 522 S.E.2d 424, 430 (1999).
Appellee contends that Bower is inapplicable since
the present discussion involves future damages to earnings rather than damages
in the form of future medical expenses. The standard as announced in Jordan thirty
years ago is applicable to any type of future damage claim. Consequently,
we would have to ignore or modify that standard in order to arrive at the conclusion
Appellee proposes. Moreover, to find that the legal sufficiency test of Jordan limits
awards in future lost income cases to permanent physical injury would once again
serve to defeat the primary purpose of compensatory damage awards. If we were
to follow the course urged by Appellee and uphold the lower court's limitation
on the pursuit of a future damage claim for loss of income, we would also be
eliminating an injured party's ability to be made whole for such things as a
negligently caused intellectual impairment, permanent or temporary, affecting
loss of income. No such limitation appears in Jordan. Furthermore, we
tacitly recognized mental impairments as a basis for claiming lost future earnings
when we applied the Jordan principles in the later case of Adkins v.
Instead of categorically eliminating recovery of
future damages for any particular type or degree of injury, this Court chose
in Jordan to sanction future damage awards for any injury so long
as it is shown with reasonable certainty that the future permanent consequence
of that injury will result. Whether that consequence involves a physical
or mental impairment, lost opportunity, permanent discharge from the military
or other matter is irrelevant as long as the evidence establishes by a reasonable
degree of certainty that it is a permanent consequence of the negligent act
of the defendant. To ward against speculative, abstract or purely theoretical
claims, the trial court bears the responsibility for examining the evidence
in each case in order to withhold such flawed claims from jury consideration.
Likewise, Jordan did not attempt to prescribe the specific type of evidence needed to support every conceivable kind of injury which may occur as a result of the negligent acts of a defendant. Instead of defining such specific standards, or only determining the standards applicable to the facts of the case then before it, this Court in Jordan set forth an evidentiary paradigm governing future damages in syllabus point eleven of Jordan reads:
Where an injury is of such a
character as to be obvious, the effects of which are reasonably common knowledge,
it is competent to prove future damages either by lay testimony from the injured
party or others who have viewed his injuries, or by expert testimony, or from
both lay and expert testimony, so long as the proof adduced thereby is to a degree
of reasonable certainty. But where the injury is obscure, that is, the effects
of which are not readily ascertainable, demonstrable or subject of common knowledge,
mere subjective testimony of the injured party or other lay witnesses does not
provide sufficient proof; medical or other expert opinion testimony is required
to establish the future effects of an obscure injury to a degree of reasonable
158 W.Va. at 30, 210 S.E.2d at 623. This flexible model may be readily applied
to cases involving the consequences of any type of negligently inflicted injury,
and by its terms does not limit relevant evidence of reasonable certainty to
medical evidence in all circumstances. For instance, we surmise from the arguments
in the case before us that verifying the lasting consequence of discharge from
the military without reenlistment opportunity would require Appellant to produce
expert testimony regarding military regulations and procedures as familiarity
with such consequences are not obvious or within common knowledge. (See
Appellee expresses serious concern that allowing future damage claims on a basis other than permanent physical impairment will promote excessive awards for trivial injuries. This concern might be justified if plaintiffs in personal injury cases only had to demonstrate a lasting future effect of a negligently inflicted injury in order to be successful in obtaining an award for loss of future income or earning capacity. One authority addressing the further proof needed in future lost income and future earning capacity claims states:
Evidence in the wage loss claim reflects loss of specific
opportunities, such as those presented by an existing job. Proof typically shows
past wage and future prospects in the job, coupled with proof that the plaintiff can
no longer work or can work only part time. Evidence in the lost capacity
claim, on the other hand, often focuses on the nature of the injury and the kind of diminished working capacity such an injury tends to cause.
In such cases, there may be no evidence at all of past earnings or of specific
jobs the plaintiff might have held in the future.
2 Dobbs, Law of Remedies § 8.1(2), 364 (2d ed.) (1993) (footnotes omitted) (emphasis added). It is clear then that a plaintiff seeking damages for future losses in the form of specific income or capacity to earn a living, including lost opportunity, (See footnote 7) must show how his or her economical situation has been impeded. Such proof is necessary to assure adherence to the principle underlying compensatory damages: placing the injured party in the same, not better, financial position he or she would have been in but for the negligent act. Requiring proof of this nature is also in keeping with the doctrine of avoidable consequences, which states that a party cannot recover damages flowing from consequences that the party could reasonably have avoided. 22 Am.Jur.2d Damages § 340 (2003) (footnote omitted). The purpose of the avoidable consequences doctrine, applied in the context of claims for lost future income or diminished earning capacity, is to reduce the recovery by amounts the plaintiff actually did earn or could reasonably have earned. 2 Dobbs, Law of Remedies § 8.1(2), 369 (1993). We embraced the spirit of the doctrine of avoidable consequences in Adkins v. Foster, 187 W.Va. 730, 421 S.E.2d 271 (1992), when we advised that:
[P]rudent plaintiff's counsel would seek to introduce vocational evidence in additional to medical evidence . . . to assist the jury in ascertaining the extent and permanency of the plaintiff's alleged inability to engage in gainful employment. Similarly, prudent defense counsel would also present such evidence in order to assist the jury in determining whether the plaintiff would be capable of some other future employment which might mitigate the damages for loss of future earning capacity.
Id. at 735, 421 S.E.2d 276. Accordingly, the prediction of loss of future earnings must be established with reasonable certainty before an award for impaired future earnings can be made. The trial court is well equipped to test the evidence actually adduced on the issue against any contention that such evidence is too speculative, abstract or theoretical to support the claim asserted. To counter or reduce a lost earnings claim, it may also be shown under the facts of a given case that a plaintiff is able to accept suitable alternative employment but has failed to do so. See Stein on Personal Injury Damages 3d § 18:17: Avoidable Consequences and Duty to Mitigate (1997).
For the reasons stated herein, we answer the certified
question, as reformulated, in the negative.
question of law, including, but not limited to, questions arising upon
the sufficiency of a summons or return of service, upon a challenge of
the sufficiency of a pleading or the venue of the circuit court, upon the
sufficiency of a motion for summary judgment where such motion is denied,
or a motion for judgment on the pleadings, upon the jurisdiction of the
circuit court of a person or subject matter, or upon failure to join an
indispensable party, may, in the discretion of the circuit court in which
it arises, be certified by it to the supreme court of appeals for its decision,
and further proceedings in the case stayed until such question shall have
been decided and the decision thereof certified back. The procedure for
processing questions certified pursuant to this section shall be governed
by rules of appellate procedure promulgated by the supreme court of appeals.
case or to assign precise definitions to each theory. Given the fact that
a complete record involving the relevant theories has not been developed
to date in the instant case, the opportunity to address these distinctions
is again not before us. We simply note that one authority explains the theories
in the following way:
The injured plaintiff may
recover either specific [future] income loss . . . or loss of earning capacity.
. . . [As to the former,] [t]he plaintiff is entitled to recover any kind
of income lost as a result of injury, including the value of fringe benefits.
. . . An estimate of lost earning capacity is not an estimate of specific
present or future wage loss; it is rather an estimate of lost present ability
to work in appropriate occupations, now and in the future. . . . Thus one
who is earning the same wages after the injury as before might still have
a loss of earning capacity, representing a likely diminution in earnings
at some point in the future, or an increase in the effort required to keep
earnings at the same level. In a real sense it may even be said that even
if capacity for work remains the same but injury reduces the chance of being
hired, the plaintiff has a measurable loss [of opportunity].
2 Dobbs, Law of Remedies § 8.1(2), 361-63 (2d ed.) (1993) (footnotes omitted) (emphasis in original).