In personal injury cases, damages awarded must be based on reasonably certain evidence, and this includes claims for future damages as well. Damages cannot be awarded based on speculation. Tennessee law provides that damages must be proven with reasonable certainty.
The jury instruction concerning future damages without speculation is TPI 14.50, which states:
[i]f you are to determine a party's damages, you must compensate that party for loss or harm that is reasonably certain to be suffered in the future as a result of the injury in question. You may not include speculative damages, which is compensation for future loss or harm that, although possible, is conjectural or not reasonably certain.
Speculative damages, whether they be medical bills, medical treatment or lost wages, etc., are uncertain damages that may or may not happen or be incurred. Tennessee Courts require that claims for damages must be supported by evidence with reasonable certainty.
The burden of proving damages rests on the party seeking them. BancorpSouth Bank, Inc. v. Hatchel, 223 S.W.3d 229 (Tenn. Ct. App. 2006). A plaintiff may recover damages when she offers "'proof of damages within a reasonable degree of certainty.'" Id. at 230 (quoting Redbud Coop. Corp. v. Clayton, 700 S.W.2d 551, 561 (Tenn. Ct. App.1985)).
Likewise, to recover for loss of earning capacity, the plaintiff must provide reasonably certain evidence of the loss, and basis for the loss, being claimed. Again, the award cannot be based on speculation. This issue was discussed in Overstreet v. Shoney’s Inc., 4 SW 3d 694 (Tenn. Ct. App. 1999), where the Tennessee Appellate Court stated:
[t]he extent of an injured person’s loss of earning capacity is generally arrived at by comparing what the person would have been capable of earning but for the injury with what the person is capable of earning after the injury … The injured party must first prove with reasonable certainty that the injury has or will impair his or her earning capacity.
Lost wages were discussed in Higgins v. McCord, 2022 WL 1200458 (Tenn. Ct. App. 2022). In this case, the Tennessee Appellate Court stated that “[a]n award for lost wages must be supported by evidence that removes the matter from the realm of speculation and conjecture. The plaintiff must present proof of the amount of wages lost with a reasonable degree of certainty.”
Clearly, shaky testimony about future damages or losses is likely not going to be enough. To get the information to the jury, or to get an award from the jury, for losses/damages or future losses/damages, the plaintiff is going to have to be reasonably certain of being able to prove it.
Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator and his practice areas include criminal defense and civil litigation.
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