WPI 30.08.01 Measure of Economic Damages—Elements of Past Damages—Loss of Earnings—Adult Plaint...

Insert this phrase as an element of past economic damages in the damage instruction (WPI 30.01.01, WPI 30.02.01, or WPI 30.03.01) if the evidence justifies its use.

Care must be exercised to distinguish between lost earnings and lost earning capacity in order to avoid erroneous duplication of elements. See the Comment below.

Use bracketed material as applicable.

RCW 4.56.250(1)(a).

The statute defines economic damages in part as objectively verifiable monetary losses, including loss of earnings, loss of employment, and loss of business or employment opportunities.

This instruction includes the bracketed words “earning capacity,” which do not appear in the statute. RCW 4.56.250(1)(a) defines economic damages as “including” a list of objectively verifiable monetary losses, while the following subsection of the statute, RCW 4.56.250(1)(b) defines noneconomic damages as “including, but not limited to” a list of subjective, nonmonetary losses. The WPI Committee concluded the Legislature did not intend the listing in RCW 4.56.250(1)(a) to be exclusive and that lost earning capacity should be included in this instruction because of the case law support for such damages. See the cases cited below in this Comment. For a general discussion of economic damages, see the Comment to WPI 30.01.02 (Economic Damages—Definition).

Loss of earning capacity is an appropriate element of damages under the Tort Reform Act, when supported by the evidence. In Chapple v Granger, 851 F.Supp 1481 (E.D.Wash. 1994), the court, applying Washington law, concluded that lost earning capacity is an element of damages. See generally DeWolf & Allen, 16 Washington Practice, Tort Law and Practice § 6.5 (5th ed.).

There are a number of pre-Tort Reform Act cases concluding that loss of earning capacity is an appropriate element of damage when the evidence supports a conclusion that the injury will result in a permanent diminution of the ability to earn money. See, e.g., Sherman v. City of Seattle, 57 Wn.2d 233, 245–46, 356 P.2d 316 (1960) (loss of earning capacity proper element of damages for a three-year old child who lost an arm between the elbow and shoulder); Murray v. Mossman, 52 Wn.2d 885, 889–90, 329 P.2d 1089 (1958) (loss of earning capacity for secretary who suffered from loss of sensation in arm and testified that her efficiency was impacted). For a discussion of the issue of loss earning capacity in the context of a small business, see Kennard v. Kaelin, 58 Wn.2d 524, 525–26, 364 P.2d 446 (1961) (Loss of profits from small business).

Impairment of earning capacity is different from loss of wages. It is the permanent diminution of the ability to earn money. Murray, 52 Wn.2d at 889. Care must be taken in drafting the jury instruction if both impairment of earning capacity and loss of future wages are being sought to avoid duplication of this element. Meissner v. City of Seattle, 14 Wn.App. 457, 471, 542 P.2d 795 (1975).