Can an person who was apprenticing in a trade who was injured by medical malpractice claim damages resulting from their inability to enter into that profession as a result of the injury?

Defendants also contend that the award to Kirschhoffer for lost future earning capacity was based on mere speculation. Specifically, defendants argue that Kirschhoffer's testimony [173 A.D.2d 10] that she was qualified to work as a secretary and intended to return to such employment after her child was old enough to go to school should be rejected as "pure speculation and surmise". It is axiomatic that the loss of future earnings or earning capacity must be established with reasonable certainty (Johnston v. Colvin, 145 A.D.2d 846, 848, 535 N.Y.S.2d 833; Merrill v. Albany Med. Center Hosp., 126 A.D.2d 66, 70, 512 N.Y.S.2d 519 [Kane, J.P., concurring in part and dissenting in part], lv. denied 70 N.Y.2d 669, 518 N.Y.S.2d 962, 512 N.E.2d 545, appeal dismissed 71 N.Y.2d 990, 529 N.Y.S.2d 272, 524 N.E.2d 873; 36 NY Jur 2d, Damages, § 68, at 118). Recovery for lost earning capacity is not limited to a plaintiff's actual earnings before the accident, however, and the assessment of damages may instead be based upon future probabilities (see, Grayson v. Irvmar Realty Corp., 7 A.D.2d 436, 439, 184 N.Y.S.2d 33). Here, the record demonstrates that there were employment opportunities in the local school district, that Kirschhoffer did not require further training or education because she had worked as a secretary in the past (cf., Naveja v. Hillcrest Gen. Hosp., 148 A.D.2d 429, 430, 538 N.Y.S.2d 584) and that Kirschhoffer's child began school five months after Kirschhoffer's accident. In our view, under the circumstances, plaintiffs demonstrated lost earning capacity with reasonable certainty (see, Johnston v. Colvin, supra, 145 A.D.2d at 848-849, 535 N.Y.S.2d 833).

There is no dispute that one tortiously injured may recover damages based upon the impairment of future earning capacity. There is also no dispute that the assessment of damages may be based upon future probabilities and is not confined to actual earnings prior to the accident. The unusual issue tendered in this case is whether there may be a similar assessment where the probability of future earnings is not based upon any prior actual engagement in the vocational earning of income. In that

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respect it is not unlike the situation in death actions where the pecuniary benefit to survivors must be determined with respect to children or very young people whose income potentiality has not yet been developed. The situation, on the other hand, is a little different, again, from that of young persons training for occupations, especially professions, where the probability of completion of training is high, and the resultant earning of at least a modal income is equally highly probable. The reason for this last difference is that in the case of persons of rare and special talents many are called but few are chosen. For those who are not chosen, the probabilities of exploiting their talents financially are minimal or totally negative. In this class [7 A.D.2d 438] would fall the musical artist, the professional athlete, and the actor.

[...]

[7 A.D.2d 439] As already noted, it is undisputed that a person tortiously injured is entitled to recover for impairment of future earning capacity, without limitation to the actual earnings which preceded the accident. Restatement, Torts, § 912; 25 C.J.S. Damages §§ 86, 87. In death actions, and in the cases of injuries, involving very young people whose vocational potentialities have not yet been developed, the courts have allowed assessment of damages based on future, and not presently realized, earning capacity. Ihl v. Forty-second Street & G. St. Ferry R. Co., 47 N.Y. 317; Oldfield v. New York & Harlem R. Co., 14 N.Y. 310; Nicholas v. Maxwell Motor Corp., 237 Mich. 612, 213 N.W. 128. See Annotation, Damages for Infant's Death, 149 A.L.R. 234; Annotation, Death of Infant--Measure of Damages, 14 A.L.R.2d 485.

The courts have also allowed juries to assess damages on future earning capacities based in turn upon probable promotions (Geary v. Metropolitan Street R. Co., 73 App.Div. 441, 77 N.Y.S. 54; Briscoe v. United States, 2 Cir., 65 F.2d 404; Kalland v. City of Brainerd, 141 Minn. 119, 169 N.W. 475; Contra Payne v. Lyon, 154 Ga. 501, 114 S.E. 892).

In the case of young people engaged in the study for occupations or professions requiring a great deal of preliminary or formal training the courts have also permitted the assessment of damages based on future earning potential after the training period would have been completed (Calihan v. State, Ct.Cl. 36 N.Y.S.2d 840, affirmed 266 App.Div. 815, 42 N.Y.S.2d 440; Brink v. Kessler, 310 Pa. 506, 165 A. 836). And even in the case of singers, and presumably, therefore, in the case of other musical artists, some courts in other jurisdictions have had occasion to permit juries to assess damages based on future earning potential although at the time of the accident the would-be artist's career is inchoate (Halloran v. New York, N. H. & H. R. Co., 211 Mass. 132, 97 N.E. 631; Rhinesmith v. Erie R. Co., 76 N.J.L. 783, 72 A. 15. Cf. Weddle v. Phelan, La.App. 177 So. 407, 412).

On this analysis the jury in this case was very properly permitted to assess the damages with respect to plaintiff's inchoate operatic career. But the award it made was highly excessive.

In a wrongful death action, a jury may consider increases in future earnings based upon existing facts and circumstances, where it is probable that such increases will be forthcoming (Geary v. Metropolitan Street R. Co., 73 App.Div. 441, 77 N.Y.S. 54). Mere speculation, however, as to how much a young decedent would have earned had he continued to live, or how much he might have contributed to a parent, does not serve as an adequate basis for determination of damages (Franchell v. Sims, 73 A.D.2d 1, 424 N.Y.S.2d 959; Grayson v. Irvmar Realty Corp., 7 A.D.2d 436, 184 N.Y.S.2d 33). While there can be no certainty of such proof in a wrongful death action (Zaninovich v. American Airlines, 26 A.D.2d 155, 271 N.Y.S.2d 866), the evidence may be received if there is sufficient probability of decedent's future earnings (Grayson v. Irvmar Realty Corp., supra; Geary v. Metropolitan Street R. Co., supra). Here, while there may have been a few fair comparables between decedent and the witness Dunwoodie, there were none as between decedent and the witness Lenahan (cf. Faulk v. Aware, Inc., 19 A.D.2d 464, 470-471, 244 N.Y.S.2d 259, affd. 14 N.Y.2d 899, 252 N.Y.S.2d 95, 200 N.E.2d 778, mot. to amend remittitur granted 14 N.Y.2d 954, 253 N.Y.S.2d 990, 202 N.E.2d 372, cert. denied 380 U.S. 916, 85 S.Ct. 900, 13 L.Ed.2d 801). The latter's testimony of his advancement in the company and his salary increments was completely nonprobative of decedent's future earning capacity. The reception of Lenahan's testimony as to his current salary and Dunwoodie's testimony as to his future salary potential gave rise to a danger that the jury would "regard as probable what is at most only possible * * *. This evidence was incompetent, and * * * its reception [was] prejudicial error" (Geary v. Metropolitan Street R. Co., 73 App.Div. 441, 444, 77 N.Y.S. 54, supra).

Although the liability of the appellants has been established, the award for past and future earnings must be reduced. The record reveals that the award, based on an assumption that the plaintiff would have become employed as a medical lab technician, if not for her stroke, is too speculative (see, Marmo v. Southside Hosp., 143 A.D.2d 891, 533 N.Y.S.2d 402). The plaintiff had never been employed in that position and had never even obtained the degree necessary to seek employment. Although she had taken several courses toward the degree she dropped out of school in 1973 and never returned. This is not a situation where loss of future earnings can be based on the plaintiff's active pursuit of a degree which would have enabled her to work as a lab technician (see, Horan v. Dormitory Auth., 43 A.D.2d 65, 69, 349 N.Y.S.2d 448). The record does, however, support an award of $260,000 for past and future earnings based on the plaintiff's last employment as a filing clerk. The awards for the cost of the services of a home attendant and for pain and suffering are supported by the evidence and should not be disturbed.

Defendant further contends that the verdicts for the infant plaintiff in the sum of $350,000 and for his father in the sum of $15,000 were excessive. The infant plaintiff suffered severe injuries including a fractured skull, cerebral concussion and contusion of the brain with permanent brain damage and, in addition, diabetes insipidus, a glandular disease. There is ample evidence in the record to establish that had the accident not occurred, Thomas Horan would have successfully completed his studies at Albany College of Pharmacy and become a pharmacist earning something in excess of $10,000 per year immediately after graduation. The record also shows that after the accident he may never have the mental or physical capability [43 A.D.2d 70] to work at all. A loss of earnings of $10,000 per year for 50 years would total $500,000 in itself, with no consideration at all of medical expenses, pain and suffering, or humiliation. Plaintiff had the intelligence and opportunity to complete pharmacy school and to pursue a career as a pharmacist. Therefore, a verdict of $350,000 to compensate him for a loss of potential earnings, pain and suffering, is not excessive.

The defendants contend that the jury's verdict for lost earnings (past and future) cannot stand since it is based entirely on speculation. The record reveals that the plaintiff had taken the necessary steps toward joining the New York City Police Department prior to the accident and that the jury's verdict is based upon this information. The evidence presented showed that the plaintiff had passed the medical, written and psychological examinations given by the police department and was tentatively scheduled to enter the January 1986 class at the Police Academy. The accident occurred subsequent to the plaintiff's passing of these examinations but prior to the final "mini-medical" examination. This final medical examination was the last step before admission into the Police Academy upon which admission the applicant is placed on the police department's payroll. Due to the injuries the plaintiff received in the accident, the plaintiff was found medically unfit at this "mini medical" examination. Given the fact that the plaintiff had taken all of the steps necessary to become a police officer, we find that the jury's verdict concerning lost earnings (past and future) was not based on speculative evidence (cf., Naveja v. Hillcrest Gen. Hosp., 538 N.Y.S.2d 584, 148 A.D.2d 429 (N.Y. App. Div. 1989), 148 A.D.2d 429, 538 N.Y.S.2d 584).

The second issue is whether plaintiff should have been precluded from introducing future lost earnings testimony relating to her inability to enter the profession of nursing because it was purely speculative. Notwithstanding the fact that plaintiff was only 16 years old at the time of the accident, the courts have recognized that an infant plaintiff may recover for such lost earnings even if the computation is somewhat speculative and difficult to ascertain (see, Altman v Alpha Obstetrics & Gynecology, 255 AD2d 276, 278, lv denied 93 NY2d 801). Here, there was ample evidence that plaintiff seriously desired to pursue a career in nursing but was physically unable to do so because of the injuries sustained in the accident. In addition, plaintiff presented the testimony of an expert who gave an opinion concerning the reduction in plaintiff's work life expectancy as well as the reduction in future earnings due to her inability to pursue a career as a nurse. Given such proof, we would not find plaintiff's future lost earnings too speculative to submit to the jury (cf., Schwall v Ambrosio, 45 AD2d 732). We have considered defendant's remaining claims and find them either without merit or unnecessary to address in view of our disposition.

The plaintiff William Kinsella was injured when he fell from a scaffold while working as a union apprentice carpenter. The injured plaintiff and his wife commenced this action against the owner of the premises, the defendant, Berley Realty Corporation, which, in turn, commenced a third-party action, against, among others, the appellant.

At trial, the Supreme Court excluded from evidence a certified report of the New York State Department of Labor. We find that the court acted properly since the certified report would have misled and confused the jury (see, People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728; Barker and Alexander, Evidence in New York State and Federal Courts § 401.1[b], at 118).

Furthermore, the verdict, which awarded $0 for future pain and suffering and $202,176 for loss of future earnings, is consistent. The jury obviously found that the injured plaintiff could no longer perform the strenuous work of an apprentice carpenter, and, therefore, awarded him an amount comparable to his decreased earning potential.