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Oddo v. Presser6/17/2003
w trial on the issue of compensatory damages. We otherwise find no error by the trial court.
Reversed in part, no error in part, and remanded for a new trial on the issue of compensatory damages.
Judge TYSON concurs.
Judge LEVINSON concurs in part and dissents in part.
LEVINSON, Judge, concurring in part and dissenting in part.
I agree with the majority's analysis and conclusions, except for the specific portions holding (1) plaintiff's evidence of lost tuition benefits from Davidson College (Davidson) was "overly speculative," and (2) the trial court did not err in allowing the jury to consider punitive damages for alienation of affections. Further, because I would reverse the punitive damages award, I make no comment on defendant's contention it was excessive as a matter of law.
I. PLAINTIFF'S LOST TUITION BENEFITS
I would hold that there is no error in the judgment on compensatory damages. While I agree with the majority's presentation of the relevant case law, I reach a different conclusion upon analysis of the same as applied to the facts of this case.
Plaintiff's testimony regarding his lost income, benefits, and services was supplemented by expert testimony from Dr. Albert Link, Professor of Economics at the University of North Carolina at Greensboro's Bryan School of Business, on "economic analysis." Using information specific to plaintiff and Debra, as well as relevant statistical averages, Dr. Link calculated and reduced to present value the cost of, inter alia, plaintiff's lost tuition benefits from Davidson. Plaintiff also admitted into evidence a summary of Dr. Link's calculations, which utilized a benchmark rate of inflation to calculate the probable cost of Davidson tuition through the period during which plaintiff's children would likely attend college. Using this table, Dr. Link calculated the total amount that Davidson would have paid for plaintiff's children's education. He then reduced that amount to present value, based upon a conservative rate of growth. A comparison of this evidence to that reviewed in our Courts' decisions regarding damages in wrongful death actions is instructive.
Our appellate Courts have often held that, in the context of wrongful death actions, losses related to a child's future income are overly speculative if that child was stillborn. DiDonato v. Wortman, 320 N.C. 423, 431, 358 S.E.2d 489, 494 (1987) (quoting Graf v. Taggert, 43 N.J. 303, 310, 204 A.2d 140, 144 (1964)); Gay v. Thompson, 266 N.C. 394, 400, 146 S.E.2d 425, 429 (1966); Fox-Kirk v. Hannon, 142 N.C. App. 267, 272, 542 S.E.2d 346, 351, disc. review denied, 353 N.C. 725, 551 S.E.2d 437 (2001). However, this Court, while acknowledging that proof of future damages regarding children "involves a significant degree of speculation," has allowed young children to recover for loss of earning capacity provided the evidence is sufficient to show that such damages are not unreasonably speculative. Fox-Kirk, 142 N.C. App. at 272, 542 S.E.2d at 351. In particular, it is significant that in Fox-Kirk this Court upheld admission of expert testimony on the probability that a child who was less than three years old at the time of a scarring injury would later attend college, and affirmed recovery for the child's lost earning capacity. Id. at 273, 542 S.E.2d at 351.
The majority cites the children's ages and the length of time before they will determine whether to attend college as factors contributing to the speculative nature of plaintiff's claim. However, in light of precedent declining to hold damages unreasonably speculative where the evidence included the probability a child would have att
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