Kevin G. Faley and Lina C. Rossillo, New York Law Journal

December 27, 2017

In many personal injury cases, the award of damages often centers on the jury’s calculation of loss of future earnings. Loss of future earnings is awarded where the jury finds that a plaintiff has suffered a reduction in his or her ability to earn money as a result of an injury. The jury is typically instructed to calculate loss of future earnings based on a variety of factors, including the plaintiff’s earnings before the accident, his health, prospects of advancement, and the length of time the plaintiff would have reasonably been expected to work, but for the injury. Courts also consider if there is a reasonable duty to mitigate.  

Burden of Proof

Generally, in seeking damages for loss of future earnings, the plaintiff must demonstrate his or her actual past earnings. See Jeffries v. 3520 Broadway Mgmt. Co., 36 A.D.3d 421 (1st Dep’t 2007). In Jeffries, the plaintiff submitted testimony by an alleged employer who merely asserted that plaintiff was occasionally involved in community plays and produced “playbills.” Id. The court found that this testimony without accompaniment of documentation of plaintiff’s earnings was insufficient to demonstrate loss of future income.

In Garcia v. N.Y. City Hous. Auth., 302 A.D.2d 250 (1st Dep’t 2003), the court found that plaintiff’s testimony of multiple short-term jobs prior to the accident where she allegedly was paid minimum wage was insufficient to demonstrate any loss of earnings to any degree of certainty. The plaintiff failed to specify details such as how many hours a week she typically worked before the injury, how much work she missed as a result of the injury and what the minimum wage was during the period of time  where she was incapacitated.

In Freligh, the plaintiff, who was unemployed for seven months before the accident, but had worked in the automotive parts and repair industry for years sought future earnings, claiming that he was due to start a new job at a parts business. The court asserted that evidence that the business failed, plaintiff made no effort to open a new shop, and even if he had, the plaintiff would be unable to run a profitable automobile repair hop all bear on future loss of earning determinations. See Freligh v. Government Empls. Ins. Co., 2017 N.Y. Slip Op. 05911 (3d Dep’t 2017).


A plaintiff unemployed at the time of an injury may prove loss of future earnings through a comparison of the probability of future employment before and after injury. See Kirschhoffer v. Van Dyke, 173 A.D.2d 7 (3d Dep’t 1991). In Kirschhoffer, the plaintiff was unemployed at the time of the accident, though she testified that she was qualified and intended to work as a school secretary but for the accident. The court found it sufficient to demonstrate probability of future employment opportunities in local schools requiring no additional training.

In Papa, plaintiff failed to provide evidence of past earnings as a solo practitioner, though he did evidence his earnings at the law firm he worked at prior to working solo. See Papa v. city of N,Y.,  194 A.D.2d 527 (2d Dep’t 1993). The court found evidence that plaintiff would have returned to a law firm but for the accident sufficient to permit calculating future loss of earnings based on a law firm associate salary over the period of plaintiff’s work life expectancy.

In Godfrey, plaintiff, an unemployed college student injured in an automobile accident, was awarded damages for loss of future income because there was sufficient evidence that the injury impaired her ability to reach full work potential. See Godfrey v. G.E. Capital Auto Lease, 89 A.D.3d 471 (1st Dep’t 2011). Full work potential was demonstrated by an expert physician who used a Department of Labor database to match plaintiff’s demonstrated interest in her educational pursuit with jobs.

Undocumented Workers

Where undocumented workers seek damages for lost wages, in absence of proof that the plaintiff used false work authorization documents to obtain employment, the claims are not barred by Immigration Reform and Control Act (IRCA). See Coque v. Wildflower Estates Developers, 58 A.D.3d 44 (2d Dep’t 2008). Additionally, mere speculative or conjectural evidence as to the potential for undocumented workers to, willfully or forcefully, return to his or her country of origin in the future is insufficient to warrant consideration in calculation of loss of future earnings. See Angamarca v. N.Y. City P’ship Hous. Dev. Fund, 87 A.D.3d 206 (1st Dep’t 2011).

Post-Accident Income

To establish loss of future earnings, a plaintiff can adduce evidence permitting a comparison of pre- and post- accident income or a comparison of post-accident income with the income of similarly situated employees of plaintiff’s employer. See Shubbuck v. Connors, 15 N.Y.3d 871 (2010).

Courts consider whether a plaintiff’s injury inhibits him or her from continuing work in the same field and if there is a possibility of plaintiff obtaining another job. See Harris v. City of N.Y., 2 A.D.3d 782 (2d Dep’t 2003). In Harris, the plaintiff police officer was denied recovery for lost future earnings because evidence demonstrated that the plaintiff held other employment prior to becoming a police officer, had a college degree, and had taken educational courses following his injury, demonstrating plaintiff’s ability to engage in alternative wage earning activity.

For an individual who has not yet entered into the work force, loss of future earnings may be assessed by comparing employability pre-accident to post-accident. See Cillo v. Resjefel, 16 A.D.3d 339 (2d Dep’t 2005). In Cillo, an infant plaintiff was not awarded future lost earnings where there was no evidence of possible future employability, but for the injury. The court asserted that speculative testimony on theoretical future damage was insufficient to raise triable issue of fact and too far off from a demonstration of certain future consequences resulting from injury.

Loss of future earnings may be appropriate for infants even though computation of such damages is necessarily speculative and fraught with difficulties. Kavanaugh v. Nussbaum, 129 A.D.2d 559, 562, mod. On other grounds 71 N.Y.2d 535. In Kavanaugh, there was evidence that the infant plaintiff had graduated high school and would have earned approximately $750,000 over his lifetime.


The extent of plaintiff’s lost earnings is a question for the jury. See Godfrey, 89 A.D.3d 471. However, an award may be set aside where evidence of lost earnings is too speculative. See Toscarelli, 217 A.D.2d 815. In Toscarelli, the court held that the finding by the jury that plaintiff would continue working as a full-time nightclub entertainer for his 33-year life expectancy was “shocking” and was set aside.

In Naveja v. Hillcrest Gen. Hosp., 148 A.D.2d 429 (1989), the award for lost future earnings was redacted for being speculative and improperly based on the assumption that plaintiff, having neither the degree necessary nor relevant experience, would become employed as a lab technician but for her injury.

Duty to Mitigate

Plaintiffs have a duty to use reasonable effort to mitigate damages by seeking vocational rehabilitation. See Thompson v. Port Auth. of N.Y., 284 A.D.2d 232 (2001). Where plaintiff allows damages to be unnecessarily enhanced, the loss falls upon the plaintiff. Id.  

Recovery for lost earnings is subject to reduction in the amount of compensation that the plaintiff would have earned had damages been mitigated. See Novko v. State, 285 A.D.2d 696 (3d Dep’t 2001). In Novko, the court found the plaintiff, a self employed farmer who continued to run his farm, insufficient to show that his damages were unnecessarily enhanced as he worked out of necessity to keep his business running and took measures to avoid physical labor.

In Bell, plaintiff suffered a knee injury and the court found that the physician’s expressed concern for plaintiff to physically get to the rehabilitation facility was insufficient to excuse plaintiff’s duty to mitigate by seeking vocational rehabilitation. See Bell v. Shopwell, 119 A.D.2d 715 (2d Dep’t 1986).

Where there is evidence that a surgery may have mitigated damages, the court considers the reasonableness of plaintiff’s decision to forgo surgery. Courts assess risk of surgery and the plaintiff’s state of mind where there is a decision to forgo surgery. In interpreting plaintiffs’ state of mind, courts contemplate the thought that plaintiffs put into the decision and whether medical experts were consulted. See Piehnik v. Graff, 158 A.D.2d 863 (3d Dep’t 1990).

Furthermore, there is a duty to mitigate damages by using reasonable effort in seeking employment. See Waring v. Sunrise Yonkers SL, 134 A.D.3d 488 (1st Dep’t 2015). In Waring, the plaintiff demonstrated reasonable efforts to obtain employment as he received his GED in order to increase employability and was looking for work. See also McLaurin v. Ryder Truck Rental, 123 A.D.2d 671 (2d Dep’t); Balbuena v. IDR Realty, 6 N.Y.3d 338 (2006).


The calculation of future loss of earnings can have a huge impact on the amount of damages awarded in a lawsuit. As discussed above, there is a variety of subtle facts that may make or break a plaintiff’s assertion of a right to future loss of earnings.

Kevin G. Faley and Lina C. Rossillo are partners in the firm of Morris Duffy Alonso & Faley.

Reprinted with permission from the December 27, 2017 edition of the New York Law Journal © 2017 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. – 877-257-3382 -