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Anderson v. Litzenberg5/28/1997
s to any loss, impairment, or diminution of his earning capacity in consequence of his injury. Monias v. Endal, 330 Md. 274, 623 A.2d 656 (1993); Delph v. Ammons, 239 Md. 662, 212 A.2d 504 (1965). Essentially, an accident victim is entitled to be compensated to the extent his or her power to work in an activity that produces income has been reduced by the injury. There is no fixed rule by which the amount of damages for diminution or impairment of earning capacity may be definitively measured. Instead, all relevant facts on the issue must be considered. Brooks v. Fairman, 253 Md. 471, 252 A.2d 865 (1969).
Impairment of earning capacity is measured by the "lost capacity to earn, rather than what a plaintiff would have earned." See 4 F. Harper, F. James, O. Gray, The Law of Torts, § 25.8 at 548-47 (2d ed. 1986), quoted with approval in, Monias v. Endal, 330 Md. 274, 281 n.4, 623 A.2d 656 (1993). It is generally recognized that impairment of earning capacity seeks to compensate the plaintiff for a reduction in his ability to earn through his personal services. See, e.g., Fairbanks v. Nesbett, 432 P.2d 607 (Alaska 1967); Handelman v. Victor Equip. Co., 21 Cal. App. 3d 902, 99 Cal. Rptr. 90 (1971); Melford v. S.V. Rossi Constr. Co., 131 Vt. 219, 303 A.2d 146 (1973). Once the fact of impaired earning capacity is established, the plaintiff must submit evidence so that the extent of the impairment can reasonably be determined. The prevailing proper measure of lost earning capacity is the difference between the amount that the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter. Essentially, the plaintiff must establish the disparity between the market value of his services before and after the injury.
The objective is to place [the victim] in the same economic position as would have been . . . had the injury not occurred. We seek to accomplish this goal by a formula which . . . consists of determining what [plaintiff's] annual earning power would have been but for the injury, deducting what it will be thereafter, multiplying the result by [plaintiff's] expectancy, and discounting the product to present value.
Conte v. Flota Mercante Del Estado, 277 F.2d 664 (2d. Cir. 1960). Accord Uryasz v. Archbishop Bergan Mercy Hosp., 230 Neb. 323, 431 N.W.2d 617 (1988). See generally, Restatement (Second) Torts §§ 906(b) & cmt. 6; 924(b) & cmt. d.
Proof of impairment of earning capacity does not require the degree of specificity as does proof of loss of future wages. See, e.g., Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983); T.J. Allen Distrib. Co. v. Leatherwood, 648 S.W.2d 773 (Tex. Civ. App. 1983). As a general rule, any evidence is admissible that would assist the fact finder in determining the plaintiff's earning capacity before the injury and the potential decrease in that capacity after the injury, including rates and wages paid to those in the same vocation in which the plaintiff engages. See, e.g., Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041 (1949).
Appellant contends that one cannot recover future profits from a business that has not demonstrated an ability to make consistent profits in the past. Bramble's reliance on the authority it cites in its brief is misplaced. Although profits are a separate item of damages in several causes of actions, including: (1) conversion or destruction of property used by a plaintiff for purposes of making a profit; (2) actions in which an individual's business has been harmed by a defendant's anti-competitive conduct; or (3) breach of contract, profits are not a separate item of damages in a personal injury case. Shewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529, 535 (1963);
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