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WPI30.06Measure of Damages—Elements of Noneconomic Damages—Pain and Suffering, Etc.—Past and Fu...

6 WAPRAC WPI 30.06Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 30.06 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Washington State Supreme Court Committee on Jury Instructions
Part IV. Damages
Chapter 30. Personal and Property Damages
WPI 30.06 Measure of Damages—Elements of Noneconomic Damages—Pain and Suffering, Etc.—Past and Future
The pain and suffering, [both mental and physical], [and(fill in element from RCW 4.56.250(1)(b))] experienced and with reasonable probability to be experienced in the future.
NOTE ON USE
Insert this phrase as an element of noneconomic damages in the damage instruction (WPI 30.01.01, WPI 30.02.01, or WPI 30.03.01) if the evidence justifies its use.
Use bracketed material as applicable. See the Comment below for a discussion relating to the types of noneconomic damages that may be inserted in the empty set of brackets in this instruction.
COMMENT
RCW 4.56.250(1)(b).
The statute. The statute defines noneconomic damages as “subjective, nonmonetary losses, including but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship.”
Instructions on elements of noneconomic damages in general. It has been a long-standing rule that a damages instruction must include all elements that are supported by the evidence. See Bitzan v. Parisi, 88 Wn.2d 116, 122, 558 P.2d 775 (1977); Lofgren v. Western Washington Corp. of Seventh Day Adventists, 65 Wn.2d 144, 151, 396 P.2d 139 (1964); McGarvey v. City of Seattle, 62 Wn.2d 524, 531, 384 P.2d 127 (1963). The failure to include an element of damage in a jury instruction is reversible error when there is sufficient evidence to support it. See Lofgren v. Western Washington Corp. of Seventh Day Adventists, 65 Wn.2d at 151. Conversely, it is reversible error to include an element of damage in an instruction when there is no proof of that element. Gosa v. Hyde, 117 Wash. 672, 676–77, 202 P. 274 (1921).
Noneconomic damages are not susceptible of precise measurement, and evidence that assigns an actual dollar value to the injury or that fixes the amount of damages with mathematical certainty is not required. Rasor v. Retail Credit Co., 87 Wn.2d 516, 531, 554 P.2d 1041 (1976); Wagner v. Monteilh, 43 Wn.App. 908, 912, 720 P.2d 847 (1986). See WPI 30.01.01 (Measure of Economic and Noneconomic Damages—Personal Injury—No Contributory Negligence).
Pain, suffering, inconvenience. Pain and suffering are grouped together as elements in personal injury cases. See Green v. Floe, 28 Wn.2d 620, 636–37, 183 P.2d 771 (1947). Future pain and suffering are also properly included in the elements instruction when there is sufficient evidence to support the instruction. Bitzan v. Parisi, 88 Wn.2d 116, 121, 558 P.2d 775 (1977) (lay testimony was sufficient to support an instruction on future disability, pain, suffering, etc.); Orme v. Watkins, 44 Wn.2d 325, 330–34, 267 P.2d 681 (1954); Lieske v. Natsuhara, 165 Wash. 270, 272–73, 5 P.2d 307 (1931).
Damages for pain and suffering are not compensable under the Consumer Protection Act. Washington State Physicians Ins. Exchange & Ass'n v. Fisons Corp., 122 Wn.2d 299, 318, 858 P.2d 1054 (1993). The case also holds that a physician who prescribes a drug that injures a patient does not have a cause of action to recover from the drug company for his or her own emotional pain and suffering under the product liability act (RCW Chapter 7.72).
Inconvenience has been mentioned by the courts as a valid basis for damages. See, e.g., Cole v. Schaub, 164 Wash. 162, 165, 2 P.2d 669 (1931); Kane v. Nakamoto, 113 Wash. 476, 480, 194 P. 381 (1920), superceded by statute as stated in Burns v. Dills, 68 Wn.2d 377, 385–86, 413 P.2d 370 (1966); Burke v. City of Seattle, 85 Wash. 445, 447, 148 P. 574 (1915). In none of these cases, however, was its inclusion an issue on appeal.
Damages for injuries to a spouse, domestic partner, parent, or child. Many of the noneconomic damage elements listed in RCW 4.56.250(1)(b) are covered in the instructions found in WPI Chapter 32 (Damages—Injury to Spouse, Domestic Partner, Parent, or Child), the damage instructions for injuries to a spouse, domestic partner, parent, or child. Loss of society and companionship is covered in WPI 32.05 (Measure of Damages—Loss of Consortium—Parent) and WPI 32.06.01 (Measure of Damages—Injury to Child—Action Brought by Parent (RCW 4.24.010)). Loss of consortium is covered by WPI 32.04 (Measure of Damages—Loss of Consortium—Spouse/State Registered Domestic Partner) and WPI 32.05 (Measure of Damages—Loss of Consortium—Parent). Destruction of the parent-child relationship is covered in WPI 32.06.01 (Measure of Damages—Injury to Child—Action Brought by Parent (RCW 4.24.010)).
Mental anguish and emotional distress. Washington plaintiffs may recover mental anguish damages under two theories: (1) intentional or willful infliction of emotional distress, see Cagle v. Burns and Roe, Inc., 106 Wn.2d 911, 916, 726 P.2d 434 (1986); or (2) negligent infliction of emotional distress, see Reid v. Pierce County, 136 Wn.2d 195, 204, 961 P.2d 333 (1998).
It is not error to instruct separately on discomfort, annoyance, and mental anguish if each distinct item of damage is supported by independent facts. Wilson v. Key Tronic Corp., 40 Wn.App. 802, 811, 701 P.2d 518, 525 (1985).
For further discussion of mental anguish and emotional distress, see the instructions on the tort of outrage, WPI 14.03 through WPI 14.03.04.
Disability, disfigurement, and loss of enjoyment of life. See WPI 30.05 (Measure of Damages—Elements of Noneconomic Damages—Disability, Disfigurement, and Loss of Enjoyment of Life).
Injury to reputation and humiliation. Injury to reputation as an element of damage is most common in actions for slander or false arrest or actions brought under the Consumer Protection Act. See Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 315, 858 P.2d 1054, 1062 (1993) (injury to reputation is compensable under the CPA); Roper v. Mabry, 15 Wn.App. 819, 823–25, 551 P.2d 1381 (1976) (discusses injury to reputation in a slander case); Wilson v. City of Walla Walla, 12 Wn.App. 152, 153–54, 528 P.2d 1006 (1974) (discusses injury to reputation in a false arrest case). The WPI Committee is unaware of any Washington cases addressing injury to reputation as an element of damage in a personal injury case.
Humiliation may be included as an element of damage in personal injury cases, especially those involving intentional torts. See Carmody v. Trianon Co., 7 Wn.2d 226, 233, 109 P.2d 560 (1941) (stating that humiliation is a proper element of damage in an action based upon assault and battery); Hickman v. Desimone, 188 Wash. 499, 502–03, 62 P.2d 1338 (1936), see also RCW 4.20.046 (general survival statute, which allows personal representative to recover a decedent's humiliation damages on behalf of certain specified statutory beneficiaries).
Future damages. For a discussion relating to the burden of proof for future damages see the Comment to WPI 30.01.04 (Future Damages—Definition).
[Current as of September 2018.]
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