AMI 2202 Measure of Damages—The Nature, Extent, Duration, and Permanency of the Injury

A. Should be used when there is no evidence of permanency.

B. Should be used when permanency is undisputed.

C. Should be used when permanency is disputed.

The appropriate clause is to be inserted between the two paragraphs of AMI 2201 when the evidence justifies its use.

This instruction properly defines separate elements of damages and not factors to be considered in connection with other damages instructions. The court held it to be reversible error to refuse to give the instruction as written in Adkins v. Kelley, 244 Ark. 199, 424 S.W.2d 373 (1968).

A permanent injury is one that deprives a plaintiff of his right to live his life in comfort and ease without added inconvenience or diminution of physical vigor, even if there is no accompanying pecuniary loss or loss of earning capacity. Id., 244 Ark. at 204, 424 S.W.2d at 375, quoting Henry Woods, Earnings and Earning Capacity as Elements of Damage in Personal Injury Litigation, 18 Ark. L. Rev. 304 (1965). Thus, a plaintiff theoretically could have a permanent injury without loss of earning capacity (e.g., if the plaintiff had a pre-injury condition rendering him or her unemployable), but must have a permanent injury to incur loss of earning capacity. Wheeler v. Bennett, 312 Ark. 411, 849 S.W.2d 952 (1993).

The Arkansas Supreme Court has stated that permanency must be proved with reasonable certainty, e.g., Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976), but that the seriousness of the injury itself may establish permanency, e.g., Bailey v. Bradford, 244 Ark. 8, 423 S.W.2d 565 (1968); Duckworth v. Stephens, 182 Ark. 161, 30 S.W.2d 840 (1930). The jury may rely on lay testimony without expert corroboration in finding permanency. East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 545, 713 S.W.2d 456, 460 (1986).

The court in East Texas Motor Freight Lines, Inc., observed that “[n]o hard and fast rule exists by which to test the permanency of injuries and to a degree each case must be examined on its own.” Id. The court held it error to give version [C] of the instruction (via AMI 2213) in Welter, despite serious injury to plaintiff, in light of the treating physician's testimony that, if plaintiff followed the prescribed rehabilitation regimen, he would have absolutely normal use of his leg in five or six years. Welter, supra, 260 Ark. at 292, 539 S.W.2d at 268. In Bailey the court held it proper to give the instruction based on testimony concerning the symptoms of plaintiff's brain injury. Bailey, supra, 244 Ark. at 9, 423 S.W.2d at 566, citing Duckworth, supra (finding sufficient evidence of permanency in testimony regarding symptoms of brain injury). See also Belford v. Humphrey, 244 Ark. 211, 214–15, 424 S.W.2d 526, 529 (1968) (noting gray area between the two extremes of cases involving injuries subjective in character not plain to the layman and cases involving manifestly objective injuries such as a severed limb; and holding that evidence of persistence of whiplash symptoms, personality change, restricted movement, difficulty finding employment, and continued use of muscle relaxants sufficient to submit issue of permanency to the jury); East Texas Motor Freight Lines, Inc. v. Freeman, supra, 289 Ark. at 545, 713 S.W.2d at 460 (ruling that issue of permanency properly submitted to jury in a marginal case of mainly emotional injuries, based on testimony of head injury, nausea, continuing severe headaches, and persistent anxiety symptoms); Handy Dan Home Improvement Center, Inc.-Arkansas v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985) (holding it proper to give permanency instruction based on physicians' testimony regarding nature of injury). The absence of a numerical impairment rating does not preclude recovery of damages for permanent injuries. Wheeler v. Bennett, supra, 312 Ark. at 417, 849 S.W.2d at 955–56.