There are two types of damages that are recoverable under Nebraska law: economic damages and non-economic damages. Economic damages are defined by Nebraska statute as meaning “monetary losses, including, but not limited to, medical expenses, loss of earnings and earning capacity, funeral costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment, and loss of business of employment opportunities[.]” Neb. Rev. Stat. § 25-21,185.08(2) (Reissue 1995).

Medical expenses may be recovered, both those that the plaintiff has already incurred, and those that the plaintiff is reasonably certain to incur in the future. Steinauer v. Sarpy County, 217 Neb. 830, 843, 353 N.W.2d 715, 724 (1984) (citing Stanek v. Swierczek, 209 Neb. 357, 307 N.W.2d 807 (1981)). Such expenses must be reasonable. Id. “[T]he amount of future medical expenses need not be established with mathematical certainty.” Id. The need for future medical services and the reasonable value thereof may be inferred from proof of past medical services and their value. Nor is direct evidence, according to the general rule, always essential to establish the permanency or future effects of an injury. The test is whether the particular issue can be determined from the evidence presented and the common knowledge and usual experience of jurors.Steinauer, 217 Neb. at 843, 353 N.W.2d at 724 (quoting Schaeffer v. McCreary, 216 Neb. 739, 743, 345 N.W.2d 821, 824 (1984)). Such future medical expenses cannot be uncertain, speculative, or conjectural. Amick v. Welsh, 1994 WL 50766, *10 (Neb. App. Feb. 22, 1994) (citing Karpf v. Karpf, 240 Neb. 302, 481 N.W.2d 891 (1992)).

Loss of earnings refers to the earnings that the plaintiff lost as a result of his injury from the time of the injury until the date of trial. See Laun v. Roach, 191 Neb. 11, 213 N.W.2d 450 (1973); Caster v. Moeller, 176 Neb. 30, 125 N.W.2d 89 (1963). Loss of past earnings must be specifically pled and proven in order for a plaintiff to recover. Washington v. American Community Stores Corp., 196 Neb. 624, 629, 244 N.W.2d 286, 289 (1976). In order to prove lost earnings, it is sufficient to show the plaintiff’s typical wages or salary prior to the injury, average income, and then an estimate of the time lost from work. Caster, 176 Neb. at 43-4, 125 N.W.2d at 97.

Earning capacity should not be equated with loss of earnings, as it is a different measure of damages. Recovery for the loss of earning capacity is based upon a number of factors, which include the plaintiff’s age, life expectancy, health, habits, occupation, talents, skill, experience, training, and industry. Washington v. American Community Stores Corp., 196 Neb. 624, 629-30, 244 N.W.2d 286, 289 (1976) (citing Baylor v. Tyrrell, 177 Neb. 812, 131 N.W.2d 393 (1964) overruled on other grounds, Larsen v. First Bank, 245 Neb. 950, 515 N.W.2d 804 (1994); Wortman v. Northwestern Bell Tel. Co., 195 Neb. 637, 240 N.W.2d 15 (1976); Siciunas v. Checker Cab Co., Inc., 191 Neb. 766, 217 N.W.2d 824 (1974); Lake v. Southwick, 188 Neb. 533, 198 N.W.2d 319 (1972)). Actual loss of earnings or wages is not required in order to prove a loss of earning capacity. Washington, 196 Neb. at 629, 244 N.W.2d at 289 (citing Baylor, supra; Siciunas, supra).

Jeanelle Lust
Managing Partner