BETTY LONG, APPELLANT,
v.
PUBLIX SUPER MARKETS, INC., APPELLEE
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Betty Long appealed a summary judgment dismissing her punitive damages claim and the trial court's refusal to instruct the jury on loss of future earning capacity in a personal injury case against Publix Super Markets. The court affirmed the summary judgment on punitive damages but reversed and remanded on the earnings instruction, holding that evidence of permanent disability and reduced work efficiency entitled plaintiff to a jury instruction on future earning capacity loss despite current income stability.
The court held that the summary judgment on punitive damages was properly granted, but the trial court erred in refusing the jury instruction on future earning capacity. A plaintiff with evidence of diminished capacity to labor and a monetary standard to measure loss is entitled to a jury instruction on future earning capacity, even if currently earning equal to or more than pre-injury levels.
[1] A plaintiff is entitled to a jury instruction on loss of ability to earn money in the future if there is reasonably certain evidence that the capacity to labor has been d…
[2] Evidence of a permanent disability and reduced efficiency in performing tasks is sufficient to justify a jury instruction on loss of future earning capacity.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“All that is required to justify the instruction is that there be reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss.”
Establishes the legal standard for entitlement to a jury instruction on future earning capacity loss, citing Allstate Insurance Co. v. Shilling.
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Join FLexlaw to unlock all legal intelligencePlaintiff Betty Long suffered a personal injury and was found to have a five percent permanent disability of her arm, resulting in ten percent reduced…
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BARFIELD, Judge.
In this appeal of a personal injury case the plaintiff, Betty Long, seeks review of a summary judgment favorable to the defendant, Publix Super Markets, Inc., on the issue of punitive damages, and the refusal of the trial judge to instruct the jury on loss of ability to earn money in the future as an element of plaintiffs damages. The appeal of the summary judgment on punitive damages is without merit and the judgment on that issue is AFFIRMED.
We agree with the appellant that she was entitled to a jury instruction on loss of ability to earn money in the future. The record reflects that there was evidence before the jury that plaintiff had a five percent permanent disability of her arm and that she was ten percent less efficient than she was before the injury. In addition to the evidence of physical impairment, the jury had evidence of plaintiffs current dollar earnings which provided a basis for determining pecuniary value. All that is required to justify the instruction is that there be reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss. Allstate Insurance Co. v. Shilling, 374 So. 2d 611 (Fla. 4th DCA 1979). The fact that plaintiff at the time of trial is earning as much or more than she did prior to the injury does not preclude her from asking the jury to consider loss of future earning capacity. Such circumstances may make her burden of persuasion more difficult, but they do not defeat her opportunity to try.
There is a certain logical appeal to the trial court’s view that the jury not be burdened with the issue of future loss of earning capacity when faced with no present loss, but rather an increase, in earnings and a current employer’s testimony (produced by the defense) that plaintiff’s future with that employer was “excellent.” However, should the jury choose to look beyond this less-than-guaranteed employment, it may determine the effect of the impairment on the plaintiff’s future earning capacity.
The judgment for damages is REVERSED and the case is REMANDED to the trial court for a new trial on total compensatory damages.
JOANOS and WIGGINTON, JJ., concur.
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W.R. Grace & Company-Conn. v. Pyke, 661 So. 2d 1301 (Fla. 3d DCA 1995)…demonstrate not only reasonable certainty of injury, but must present evidence which will allow a jury to reasonably calculate lost earning capacity. See Auto-Owners Ins. Co. v. Tompkins, 651 So. 2d 89 (Fla.1995); Long v. Publix Super Markets, Inc., 458 So. 2d 393 (Fla. 1st DCA 1984). Once sufficient evidence is presented, the measure of damages is the loss of capacity to earn by virtue of any impairment found by the jury and the jury must base its decision on all relevant factors including the plaintiff’s ag…
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Volusia Cnty. v. Joynt, 179 So. 3d 448 (Fla. 5th DCA 2015)…record demonstrates the existence of ‘reasonably certain evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss.’” (quoting Long v. Publix Super Markets, Inc., 458 So. 2d 393, 394 (Fla. 1st DCA 1984))); Allstate Ins. Co. v. Shilling, 374 So. 2d 611, 613 (Fla. 4th DCA 1979) (holding that evidence of “some degree of permanent injury is sufficient” but that there also must exist “some basis upon which the jury can reasonabl…
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Jordon J. Rasinski v. McCoy, 227 So. 3d 201 (Fla. 5th DCA 2017)…in evidence that the capacity to labor has been diminished and that there is a monetary standard against which the jury can measure any future loss.” Hubbs v. McDonald, 517 So. 2d 68, 69 (Fla. 1st DCA 1987) (quoting Long v. Publix Super Mkts., Inc., 458 So. 2d 393, 394 (Fla. 1st DCA 1984)). After the plaintiff introduces evidence sufficient to warrant an award for lost earning capacity, the jury should consider “all relevant factors including the plaintiffs age, health, habits, occupation, surroundings, and e…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martinez v. Tamayo, 374 So. 2d 611 (Fla. 3d DCA 1979)
- Allstate Ins. Co. v. Shilling, 374 So. 2d 611 (Fla. 4th DCA 1979)