Michigan Court of Appeals Addresses Recoverability of Lost Earnings in Wrongful Death Cases Involving Minors

The Michigan Court of Appeals explained in Denney v Kent Co Road Comm, 317 Mich App 727, 731-732 (2016) that although lost earnings are not explicitly included as damages recoverable under Michigan’s Wrongful Death statute, the Legislature’s use of the word “including” meant that the enumerated list of damages types available is not exhaustive and damages for lost earnings are allowed under the statute.

While the general rule is that remote, contingent and speculative damages cannot be recovered in Michigan in a tort action, the state’s courts have held that damages for lost future earnings are left to the discretion of the jury, despite those damages being inherently uncertain, if reasonable and supported by evidence.

So, what is required of a plaintiff seeking damages for lost earnings? The courts do not require “precise proof” or “mathematical precisions” because in this context, given the nature of these damages, such proof is unattainable as expressed in Hannay v Dep’t of Transp.

In two recently published opinions, the appellate court squarely addressed the issue of the recoverability of lost earnings capacity damages in cases involving a 13-year-old and a premature child who lived only a matter of weeks. Both opinions relied on the same recitation of the law and noted a lack of Michigan case law addressing this issue. Given the lack of binding Michigan case law, the appellate court looked to two opinions from other states—one from Ohio involving an 11-year-old and one from Pennsylvania involving teenagers.

In the Ohio case Howard v Seidler, the appellate court held that the deceased child’s parents could recover damages based on the minor child’s lost future earning capacity, even if the child had never been gainfully employed, but the trier of fact must consider “knowledge of the age, sex, and physical and mental characteristics of the child.” The appellate court also noted that the child’s activities and plans for his future were relevant considerations.

Similarly, in the Pennsylvania case Mecca v Lukasik, the trial/appellate court found that evidence of the deceased teenagers’ educational and career plans and the career and academic achievements of their family members were sufficient data points to allow recovery of lost earnings.

In both cases before the Michigan Court of Appeals, the appellate court held that “a child’s expected future earning potential is not inherently too speculative to permit recovery,” and “[t]he touchstone is whether that future earning potential can be proven with reasonable certainty based on the child’s unique and known traits and abilities.” The appellate court found no reason why a child must have an employment history, and it declined to “draw a line in the sand” as to how old is “old enough,” noting that the inquiry will always be based on the unique facts of the minor involved in a particular case. Before addressing the particular cases before them, the appellate court provided the following analysis:

[I]t is well-known that at least by the end of middle school, it is common for teachers or other adults in a child’s life to perceive when a child shows promise in a field, has any particular aspirations or strengths, displays developed personality characteristics such as conscientiousness or the kind of social adeptness that would likely evolve into adult networking skills, and so on. Furthermore, it is also well-known that a child’s environment, including the child’s parents, school system, general area of residence, participation in extracurricular activities, exposure to traumas or role models, and similar extrinsic influences will affect the child’s future earning potential. We do not purport to set forth an exhaustive list of characteristics and influences, nor do we suggest that any of the above characteristics and influences are necessary. (emphasis added).

With all of the foregoing in mind, the appellate court held in Daher v Prime Healthcare Services-Garden City, LLC that “it seem[ed] highly likely that the future earning potential of a 13-year-old can be proven with reasonable certainty based on personal characteristics and influences known at the time, and [the Court] unequivocally reject[ed] the proposition that the future earning potential of a 13-year-old categorically cannot be proven with reasonable certainty.”

However, as to the premature child, the appellate court held in Zehel v Nugent “the record must permit some reasonable basis for personalizing an estimation specific to that particular child [and in that] case, tragically, there [was] simply no way to know anything about [the child’s] interests, aspirations, personality, strengths and weaknesses, academic performance, or any other characteristic that could be extrapolated [since the child] was born prematurely and, implicitly, may have been conscious for two hours, if that.” Since the premature child had no chance to display any individual personality whatsoever, the appellate court concluded it was too speculative to extrapolate from her parents or sibling and there was no possible evidence of his potential for future earnings.

Although the appellate court stopped short of providing a “bright line rule” in either opinion as to how young is too young to recover for lost earnings capacity, the appellate court essentially endorsed recovery in any case where the plaintiff could provide evidence of the child’s physical or mental characteristics, interests, aspirations, educational attainment, and the educational or career attainment of the child’s family members.

While there will no doubt be ample fodder for cross-examination of an economic expert making such projections, provided there is some evidentiary support the matter will make it to a jury to decide. 

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