Flannery v. U.S.

• Decision Date: 28 October 1982
• Docket Number: No. CC928,CC928
• Citation: 34 A.L.R.4th 281,297 S.E.2d 433,171 W.Va. 27
• Parties: , 34 A.L.R.4th 281 William FLANNERY, Committee, etc. v. UNITED STATES of America.
• Court: West Virginia Supreme Court

Page 433

297 S.E.2d 433

171 W.Va. 27, 34 A.L.R.4th 281

William FLANNERY, Committee, etc. v. UNITED STATES of America.

No. CC928.

Supreme Court of Appeals of West Virginia.

Oct. 28, 1982.

Syllabus by the Court

1. "The permanency or future effect of any injury must be proven with reasonable certainty in order to permit a jury to award an injured party future damages." Syllabus Point 9, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

2. "Future damages are those sums awarded to an injured party for, among other things: (1) Residuals or future effects of an injury which have reduced the capability of an individual to function as a whole man; (2) future pain and suffering; (3) loss or impairment of earning capacity; and (4) future medical expenses." Syllabus Point 10, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

3. A plaintiff in a personal injury action who has been rendered permanently semi-comatose is entitled to recover for the impairment of his capacity to enjoy life as a measure of the permanency of his injuries even though he may not be able to sense his loss of enjoyment of life.

4. In computing the loss of future earning capacity a deduction need not be made for federal income taxes.

Ray L. Hampton, II, Barrett, Chafin, Lowry & Hampton, Huntington, for plaintiff.

Marc Johnston, Anthony J. Steinmeyer, Civ. Div., Dept. of Justice, Washington, D.C., for defendant.

Donald R. Wilson, Stanley E. Preiser, Fanny L. Haslebacher, E. Dixon Ericson, Preiser & Wilson, John L. McClaugherty, Robert G. McLusky, Jackson, Kelly, Holt & O'Farrell, Charleston, for amicus curiae.

MILLER, Chief Justice:

In this case from the United States Fourth Circuit Court of Appeals we are asked to determine two certified questions. The first is whether under our State damage law a plaintiff in a personal injury action who has been rendered permanently semi-comatose is entitled to recover for the impairment of his capacity to enjoy life. The second question is whether the trial court, when sitting as the finder of facts in a personal injury action, can deduct from the plaintiff's award for lost earning capacity an amount equal to the federal income taxes which would have been levied upon such income had it actually been earned. ¹ We answer the first question in the affirmative and the second in the negative.

This case was initially tried without a jury before the Honorable Charles H. Haden, II, Judge of the United States District Court for the Southern District of West Virginia, who made this summary of the plaintiff's condition in his memorandum opinion and order dated January 22, 1980:

"Flannery was approximately 22 years of age at the time of the accident. He was hospitalized in Cabell-Huntington Hospital from October 28, 1974, through April 12, 1975, and in Appalachian Regional Hospital from that date through April 22, 1975. Subsequent to his hospitalization he has remained in a semi-comatose condition that is not likely to improve. Flannery has a projected life expectancy of thirty years (as measured from 1978), provided he continues to receive good nursing care. Testimony was that he is less likely to live out his full life than a normal healthy person because of his reduced resistance to various diseases and medical conditions, such as pneumonia and urinary tract infections. It is unlikely that Flannery will need sophisticated medical treatment, rather he will require constant nursing and custodial care combined with occasional medical oversight. Flannery's parents are capable of providing custodial nursing care and have chosen to provide the care that their son needs in their home. They have provided such care since April, 1975, and intend to do so as long as they are able."

Judge Haden awarded the following elements of damages in his memorandum opinion and order: For hospital, medical and nursing expenses incurred prior to the trial, $48,174.80; for future nursing expenses based on a thirty-year life expectancy, $316,984.00; for impairment of earning capacity, including both wages and fringe benefits, $535,855.00; and, for loss of ability to enjoy life, $1,300,000.00, thus, making a total damage award of $2,201,013.80. The court did not award any amount for pain and suffering, ² nor did it make any award for permanent disability.

I.

The law of damages for personal injuries in this State, as is probably true elsewhere, has evolved from individual cases without a great deal of theoretical cohesion. It basically reflects the rather obvious fact that injuries to the person both physical and mental can occur in an almost infinite variety of patterns.

The basic goal in awarding damages is to fairly and adequately compensate the plaintiff for the injuries and losses sustained. In general we have recognized that compensatory damages for personal injuries are composed of two broad categories. First there are those damages which are termed "liquidated" or "pecuniary" in the sense that they represent some form of expense or economic loss that can be rendered reasonably certain monetarily by a mathematical figure or calculation. These include medical, hospital, nursing, dental, drug and all other similar expenses, both present and future that are incurred in treating, curing and alleviating the plaintiff's physical and mental injuries. Also included in this category are lost wages and lost earning capacity.

The second category consists of intangible damages since they are "unliquidated" in the sense that there is no precise monetary calculation that can be used to determine the amount of the loss. The most obvious of these is pain and suffering. Another element of unliquidated damages arises from the plaintiff's permanent injuries. The term "permanent injury" is used as a threshold condition that must ordinarily be shown in order to recover any future damages ³ surrounding a personal injury as we said in Syllabus Point 9 of Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974):

"The permanency or future effect of any injury must be proven with reasonable certainty in order to permit a jury to award an injured party future damages." ⁴

Once a permanent injury is established, then the following elements of future damages can be considered as outlined in Syllabus Point 10 of Jordan, supra:

"Future damages are those sums awarded to an injured party for, among other things: (1) Residuals or future effects of an injury which have reduced the capability of an individual to function as a whole man; (2) future pain and suffering; (3) loss or impairment of earning capacity; and (4) future medical expenses."

It is apparent from Jordan that the "[r]esiduals or those future effects of any injury which have reduced the capability of an individual to function as a whole man" is a more accurate and precise manner of stating what our earlier cases and those from other jurisdictions have termed damages recoverable for the permanent effects of the injury.

"Generally, recovery may be had, in personal injury actions, for permanent injuries or permanent impairment of health--that is, for the loss resulting from complete or partial disability in health, mind, or person thereby occasioned.... The destruction or impairment of any physical function is a proper element of damages, and so is deprivation of mental power as a result of physical injury, as where the injury causes a permanent mental defect or disease." 22 Am.Jur.2d Damages § 117 (1965). (Footnotes omitted)

See Lawrence v. Nelson, 145 W.Va. 134, 113 S.E.2d 241 (1960); Bailey v. DeBoyd, 135 W.Va. 730, 65 S.E.2d 82 (1951); Miller v. Gas Co., 88 W.Va. 82, 106 S.E. 419 (1921).

What Jordan makes clear is that once a permanent injury has been established that in addition to future pecuniary expenses or liquidated damages and losses such as medical, hospital and kindred expenses and loss of future wages and earning capacity, the plaintiff is entitled to additional damages for future pain and suffering and for the permanent effect of the injury itself on "the capability of an individual to function as a whole man." 158 W.Va. at 51, 210 S.E.2d at 634.

We believe that the loss of enjoyment of life is encompassed within and is an element of the permanency of the plaintiff's injury. To state the matter in a slightly different manner, the degree of a permanent injury is measured by ascertaining how the injury has deprived the plaintiff of his customary activities as a whole person. The loss of customary activities constitutes the loss of enjoyment of life.

While the certified question speaks of the loss of capacity to enjoy life by a semi-comatose plaintiff who is unable to sense his loss, this question as argued to us contains two parts. First, whether we recognize the loss of enjoyment of life as a separate element of damages. Second, whether as an incident to such a damage right it must be shown that the plaintiff is conscious of the fact that he has lost any enjoyment of life.

The Court of Appeals, in its decision to certify the question, correctly recognized that our cases in this area were not dispositive. Flannery v. United States, 649 F.2d 270 (4th Cir.1981). In Nees v. Julian Goldman Stores, Inc., 109 W.Va. 329, 154 S.E. 679 (1930), and Warth v. Jackson County Court, 71 W.Va. 184, 76 S.E. 420 (1912), reference was made to the impairment of capacity to enjoy life as a part of the recoverable damages for personal injuries but there was no discussion of how the impairment of the capacity to enjoy life fitted into the overall damage picture. ⁵

There are cases where courts have determined that the loss of enjoyment of life in a non-comatose situation is an element of recoverable damages. In these cases the issue is whether the jury can be instructed to consider as a part of the elements of damages the plaintiff's loss of enjoyment of life or whether such factor is already embraced in an existing category such as pain and suffering. In Mariner v. Marsden, 610 P.2d 6 (W...