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Bahl v. Talford5/16/2000
taking the evidence in the light most favorable to plaintiffs, see Henderson, 70 N.C. App. at 306, 319 S.E.2d at 292, the deceased were brought up in a family and culture within which intra-family financial assistance may have been favored, absolutely no evidence tended to show that Rene and Riana, specifically, would grow up to follow this example.
We acknowledge our earlier dicta that " ome speculation" nearly always is required to establish the element of damages at issue, Stutts, 94 N.C. App. at 238, 380 S.E.2d at 418; however,
amages available under [G.S. § 28A-18-2] are not automatic; they are what the legislature will permit the beneficiaries to recover provided those damages can be proved. The law disfavors -- and in fact prohibits -- recovery for damages based on sheer speculation. Damages must be proved to a reasonable level of certainty, and may not be based on pure conjecture. DiDonato, 320 N.C. at 430-31, 358 S.E.2d at 493 (citation omitted).
A "reasonable level of certainty," id. at 431, 358 S.E.2d at 493, is not an impossible standard in regard to the element of damages at issue herein, even though the case may involve a minor child. For example, testimony as to a child's monetary contributions to the family from part-time employment, expressions of a future intent to assist parents financially, see Stutts, 94 N.C. App. at 238, 380 S.E.2d at 418, or evidence that an older sibling had provided monetary aid to her parents, might in the appropriate case suffice to allow the issue to go to the jury. However, no such testimony is reflected in the instant record.
In sum, the challenged amount of damages must necessarily have been based upon "sheer speculation," DiDonato, 320 N.C. at 430, 358 S.E.2d at 493, in that no evidence was presented tending to show that plaintiffs could "reasonably [have] expected," G.S. § 28A-18-2(b)(4), to receive any portion of the deceased's future income. Although submission of that element of damages was error, we commend the trial court's foresight in submitting the special interrogatory noted above which allows remand without the necessity of ordering a new trial.
To conclude, that portion of the trial court's judgment awarding plaintiffs $22,800.00 and $29,300.00 for income they might reasonably have expected to receive from Rene and Riana, respectively, is vacated and this case remanded for entry of a corrected judgment and recalculation of the amount of interest on the final damage award.
Vacated in part and remanded.
Judges LEWIS and MCGEE concur.
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