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AMI2213Measure of Damages—Minor Plaintiff's Cause of Action

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2213
Arkansas Model Jury Instructions-Civil
November 2018 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 22. Damages
AMI 2213 Measure of Damages—Minor Plaintiff's Cause of Action
[If you decide for (minor) on the question of liability (against any party [he][she] is suing)] [If an interrogatory requires you to assess the damages of (minor)], you must then fix the amount of money which will reasonably and fairly compensate [him][her] for any of the following elements of damage which you find were proximately caused by the [negligence][or][fault] of [or ]:
(a) [The nature, extent, and duration of any injury;][The nature, extent, duration, and permanency of any injury;][The nature, extent, and duration of any injury and whether it is temporary or permanent;]
(b) [In this regard you should consider the full extent of any injury sustained, even though the degree of injury is found by you to have resulted from the aggravation of a (condition)(disease) that already existed and that predisposed (minor) to injury to a greater extent than another person.] [However, you may not award [him][her] damages for any (pain)(mental anguish)(disability)(other appropriate element of damage) which[he][she] would have suffered even though the accident had not occurred;]
(c) [The reasonable expense of any necessary medical care, treatment, and services received (including [transportation][and][board][and][lodging] expenses necessarily incurred in securing such care, treatment, or services) (and the present value of such expense reasonably certain to be required in the future);] [The present value of the reasonable expense of any necessary medical care, treatment, and services reasonably certain to be required after reaching majority (including the present value of [transportation][and][board][and][lodging] expenses reasonably certain to be incurred in securing such care, treatment, or services);]
(d) [Any pain and suffering (and mental anguish) experienced in the past (and reasonably certain to be experienced in the future);]
(e) [The value of any (working time)(earnings)(profits)(salary) lost (and the present value of any [working time][earnings][profits][salary] reasonably certain to be lost in the future);] [The present value of any (working time)(earnings)(profits)(salary) reasonably certain to be lost after reaching majority;]
(f) [The present value of any loss of ability to earn in the future;]
(g) [Any (scars)(and)(disfigurement)(and)(visible results of [his][her] injury);]
(h) [The reasonable expense of any necessary help in [his][her] home which has been required as a result of [his][her] injury (and the present value of such expense reasonably certain to be required in the future);] [The present value of the reasonable expense of any necessary help in [his][her] home reasonably certain to be required as a result of [his][her] injury after reaching majority;]
(i) [(His)(Her) inability to attend school;]
(j) [If property damage is involved insert here appropriate clause from AMI 2227 through 2229.]
Whether any of these elements of damage has been proved by the evidence is for you to determine.
NOTE ON USE
The various elements of damage should be included in this instruction when the evidence justifies their use.
See AMI 2220 for definition of “present value.”
Use the second bracketed phrase in (c), (e), and (h) (regarding damages after the minor reaches majority) when a parent has made a separate claim for these elements of damages.
AMI 2212 may be used in addition to this instruction when a parent and minor child both assert claims for injuries to the minor.
COMMENT
With regard to all but paragraph (i), damages recoverable by an emancipated minor or one with no living parent are the same as those of an adult. For cases and comments on the other elements see AMI 2202 through 2210. Paragraph (i) is peculiarly applicable to a minor plaintiff. Briley v. White, 209 Ark. 941, 193 S.W.2d 326 (1946).
During a child's minority, a parent is entitled to recover the child's earnings (Jolly v. Smith, 188 Ark. 446, 65 S.W.2d 908 (1933)) and medical expenses. Byrd v. Galbraith, 172 Ark. 219, 288 S.W. 717 (1926). Ordinarily no award may be made for these elements in the action brought on behalf of the child himself. McCormick, Damages, 329 (1935), particularly cases cited in footnote 11. The child may recover for these elements, however, when he is emancipated or has no living parent.
“His earnings during this time of his minority belong to his parents. In return they are bound to care for, feed, clothe, and defray his expenses during his infancy. Consequently, he was not entitled to recover anything on account of such earnings and expenses. All that he was entitled to recover was his probable loss of earnings after he reached the age of twenty-one years, which he would have acquired had he not been injured, and the increased expenses he will probably incur on account of his injury after that time, and damages for past, present, and future pain from his injury, and for personal disfigurement …” St. Louis, I.M. & S. Ry. Co. v. Waren, 65 Ark. 619, 627, 48 S.W. 222, 225 (1898).
Transportation, board, and lodging expenses necessarily incurred in obtaining required medical care, treatment, and services are recoverable. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970). However, an unemancipated minor cannot recover medical expenses incurred and to be incurred during his minority. Parrott v. Mallett, 262 Ark. 525, 558 S.W.2d 152 (1977).
It is error to include, under AMI 2213(g), a nondisfiguring scar which is ordinarily not visible and which does not diminish the future earning power of a minor, even though permanent. Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976).
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