Loss of Earning Capacity

Example

A professional ballet dancer is hit and run over by a drunk driver. The dancer survives, but because the car ran over her legs, she can no longer dance. The dancer may file a tort lawsuit against the driver and request monetary damages based on the loss of earning capacity.

Case Examples

• The elements of loss of earning capacity: There are four elements a plaintiff must prove to establish loss of earning capacity: “(1) the existence of some earning capacity prior to the injury, (2) proof that this earning capacity has been lost or diminished, (3) proof that the lost or diminished earning capacity is proximately caused by the injury, and (4) proof of the dollar amount of the loss” Adams v. Farbota, 306 F.R.D. 563, 570 (M.D. Tenn. 2015). In Adams, a driver got hit by an eighteen-wheeler, causing him to suffer injuries to his back. In making such claims, Adams did not offer any sort of expert witness or expert testimony. He also conceded that his back injury was not an easily seen or obvious injury. Therefore, the Court found that because he had not provided any sort of expert report or testimony, he could not recover damages for loss of earning capacity. Id .
• Loss of earning capacity is an element of damages that the plaintiff must prove: In Ore v. Tricam Indus., Inc., No. 14-60269-CIV, 2017 WL 6597517, at *2 (S.D. Fla. Oct. 16, 2017), a man sued the company for whom he was doing repair work after he fell off the ladder they provided. Following this accident, Ore suffered strokes. Id . Ore claimed that his fall caused him to be unable to work, while the defendant claimed it was his unrelated strokes. Id . The Court found that Ore could not prove economic damages for future earning capacity, as he had failed to provide evidence that the fall alone would have left him unable to work long term. Id . It is important to note that the burden of proof for damages is always on the party seeking the damages .