Shivers v. Riney

695 P.2d 951, 72 Or. App. 281
CourtCourt of Appeals of Oregon
DecidedFebruary 27, 1985
Docket6572-83; CA A31456
StatusPublished
Cited by3 cases

This text of 695 P.2d 951 (Shivers v. Riney) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shivers v. Riney, 695 P.2d 951, 72 Or. App. 281 (Or. Ct. App. 1985).

Opinion

RICHARDSON, P. J.

In this personal injury action, defendant1 appeals from a judgment entered on a verdict for plaintiff. We affirm.

Plaintiff injured his right hand while repairing defendant’s combine. The injury occurred when defendant engaged the combine’s separator (the part which threshes the wheat), causing plaintiffs hand to be rotated through the pulley mechanism he was repairing.

Plaintiffs complaint, amended to conform to the evidence, alleged, inter alia, that as a result of the injury, he had sustained a loss of earning capacity in the sum of $10,700, and would sustain a loss of future earning capacity in the sum of $350,000. The trial court instructed the jury that, as an element of general damages, it could consider the sum that would reasonably compensate plaintiff for any impairment of future earning capacity and, as an item of special damages, the amount of impaired earning capacity plaintiff suffered between the date of the injury and the trial, not to exceed $10,700.2 The jury returned a verdict for plaintiff, showing plaintiffs “total money damages” as $220,000, and found that plaintiff was 43 percent and defendant 57 percent at fault. Accordingly, the trial court entered judgment for plaintiff in the amount of $125,400.

Defendant’s first three assignments of error raise the question of whether there was sufficient evidence to submit plaintiffs claim for pretrial and post-trial impaired earning capacity to the jury. We turn to a review of the evidence.

Plaintiff testified at length about his work history. He testified that he had worked for a truck distributorship, managed an automobile dealership, sold trucks for a GMC dealership and owned and operated a road construction business for approximately ten years in Arizona and Nevada. From 1973 to 1976, he had worked as a project manager for a construction company in Nevada. He had directed and [284]*284assisted in the construction from the site grading through to the finish work and was involved in sales. From 1976 to 1979, he held a similar position with another construction company.

In 1978, he and his wife began building and selling homes. He performed a substantial amount of work on the nine homes that they completed. He did the site grading, laid the foundations, put in the subfloors, installed the septic tanks, put up the siding and did some finish work. He subcontracted the remaining work. He explained how he paid himself and the subcontractors from the construction loan he had secured and discussed how much he had earned.

Because of the injury to his hand, plaintiff can no longer do his former kind of work alone. His plans are to continue to build two homes a year, starting in Boise, Idaho. He estimated that it would cost him $10,000 per home to hire someone to perform the work he now cannot do.

Plaintiff and his wife moved to Oregon in 1980. He began working at Condon Motors in Condon,. where, as manager, he directed sales and service. He did not intend to stay at Condon Motors indefinitely, but planned to return to building and selling homes. He owned a 240 acre ranch in Adrian, Oregon. During 1981 and 1982 he leased the ranch. In 1983, he grew some crops, but most of his land was in a “payment in kind” program. Plaintiff estimated that it would cost him $14,820 annually to hire someone to do the work on the ranch that he could no longer do but that he would no longer have to hire the part-time help he ordinarily would hire. With respect to his claim for pretrial loss of earning capacity, he testified that he had paid $10,700 to have work done on his ranch which he ordinarily would have done himself. Income tax returns introduced by defendant reflected those expenses.

A plastic and reconstructive surgeon who treated plaintiff testified that plaintiff had dislocated certain joints in his hand. In his opinion, the injury was permanently disabling. He estimated that plaintiff, at the time of trial, had a 37 percent loss of the use of his right hand. He stated that further surgery would not improve the hand.

An orthopedic surgeon who had examined plaintiff testified that, as a result of the injury to his hand, plaintiff suffered from lateral epicondylitis, an inflamation of the [285]*285tendons in the area of his elbow. He stated that the condition would be permanent if plaintiff continued to perform the type of work he had done in the past.

A rehabilitation specialist to whom plaintiff was referred for an assessment of his vocational impairment, testified that there were many aspects of plaintiffs previous work that he could no longer perform. Regarding his job at Condon Motors, she testified that he lacked the ability for fine manipulation of nuts and bolts and small tools and that he could no longer repair farm equipment or fabricate parts. She testified that he could lift objects weighing up to fifty pounds in his left hand but had to use two hands for heavier objects. She stated that he could probably work in sales, but, being right-handed, he would have difficulty writing. Finally, she testified that plaintiff was limited in the work he could do on his farm.

In Conachan v. Williams, 266 Or 45, 511 P2d 392 (1973), the court discussed the type of proof needed to establish a claim for impaired earning capacity. The same kind of evidence is required to prove both pretrial and post-trial loss of earning capacity. 266 Or at 61. The court adopted the rule proposed by Justice O’Connell in his dissenting opinion in Baxter v. Baker, 253 Or 376, 451 P2d 456, 454 P2d 855, overruled on other grounds, Conachan v. Williams, supra:

«* * * The rule as proposed by the Baxter dissent (at 391-92) is as follows:
“ ‘* * * [t]he measure of damages for the plaintiffs pretrial and post-trial loss, whether denominated loss of earnings or impairment of earning capacity, is basically the same and should not be treated differently. Plaintiff is entitled to recover the amount of wages he would have earned but for the injury. The loss should be measured from the time the injury impaired the plaintiffs capacity to earn wages until the disablement ends. It is obvious that plaintiffs loss both before and after trial can be approximated only and that the calculation of the loss must rest upon factors which can be employed only in terms of probabilities, including the probable period of impairment, the plaintiffs capacity to earn over that period, i.e., what his services would have brought in the labor market taking into account not only plaintiffs capacity at the time of injury but also his probable chances for promotion [286]*286(or demotion), the probability that the plaintiff would have employed his skill or talent, taking advantage of available opportunities to work, and other pertinent factors.’
“We now adopt that rule as consistent with the views expressed by many authorities to the effect that in determining the amount to be awarded for impairment of earning capacity, proof of lost wages is neither required, nor is the amount of such lost wages necessarily controlling in determining the amount to be awarded for impairment of earning capacity. In other words, proof of loss of specific wages is evidence of impairment of earning capacity, both before and after the date of trial, but an impairment of earning capacity may also be proved by other evidence.” 266 Or at 55-57. (Footnotes omitted.)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Overstreet v. Shoney's, Inc.
4 S.W.3d 694 (Court of Appeals of Tennessee, 1999)
Sarah Beth Clingan Overstreet v. Shoney's, Inc.
Court of Appeals of Tennessee, 1994
State v. Hart
733 P.2d 469 (Court of Appeals of Oregon, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
695 P.2d 951, 72 Or. App. 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shivers-v-riney-orctapp-1985.