WPI 30.01.04 Future Damages—Definition

RCW 4.56.260.

The 1986 Tort Reform Act does not define future damages. However, RCW 4.56.260, enacted as part of that Act, requires the court at the request of a party to order periodic payments of future economic damages if those damages exceed one hundred thousand dollars. The possibility that such periodic payments may be requested necessitates that the jury separate past economic damages from future economic damages in making an award.

The WPI Committee thinks it unnecessary to define future damages for the jury because future damages are defined by example in the general instructions on the measure of economic and noneconomic damages. See WPI 30.01.01 (Measure of Economic and Noneconomic Damages—Personal Injury—No Contributory Negligence); WPI 30.02.01 (Measure of Economic and Noneconomic Damages—Personal Injury—Contributory Negligence—No Counterclaim); WPI 30.03.01 (Measure of Economic and Noneconomic Damages—Personal Injury—Counterclaim).

Burden of proof for future damages. Future damages must be based on evidence that, for example, the plaintiff will not be able to work in the future and not simply on an expert's assumption. See Riccobono v. Pierce Cnty., 92 Wn.App 254, 268, 966 P. 2d 327 (1998) (constructive termination case). Expert testimony is not required. Bitzan v. Parisi, 88 Wn.2d 116, 123–26, 558 P.2d 775 (1977) (lay testimony by plaintiff of continuing pain and limitation of movement sufficient to support award for future damages). Once such evidence is before the jury, future damages are appropriate if the jury concludes that there is a “reasonable probability” that such damages will occur. Although the specific issue before the Bitzan court was a procedural question, the court approvingly cited the instructions given by the trial court as establishing that the plaintiff “had the burden of proving by the evidence in the case it was more probably true than not true that future disability, pain, suffering and loss of earnings would occur in the future with ‘reasonable probability.’” Bitzan, 88 Wn.2d at 118–19.