Civil Model Jury Charge 2.34 MITIGATION OF ECONOMIC
DAMAGES - FRONT PAY
[Plaintiff] also seeks to recover
earnings that will be lost in the future.
He/she has a right to be compensated for any earnings which you find
will probably be lost and proximately caused by the injuries brought about by
defendant's alleged wrongdoing.[1] This type of damages is called “front pay.”
“Front pay” projects and measures the
ongoing economic harm, continuing after the final day of trial, which may be
experienced by a plaintiff who has been wrongfully discharged in violation of
anti-discrimination laws.[2]
A plaintiff has the burden to prove all
of his/her damages claims by a preponderance of the evidence and that burden
extends to front pay. Here, [Plaintiff]
must prove, by a preponderance of the evidence, (1) what s/he would have earned
had s/he not suffered the wrong allegedly committed by [Defendant], (2) how
long s/he would have continued to receive those earnings, and (3) a reasonable
likelihood that s/he will not be able to earn that amount in the future, such
as through alternative employment.[3]
As to the first element, what
[Plaintiff] would have earned had s/he not suffered the wrong allegedly
committed by [Defendant], [Plaintiff] has the burden to prove, by a
preponderance of the evidence, his/her gross income and the probable loss of
future earnings.[4] In deciding what [Plaintiff's] future losses
are, the law does not require of you mathematical exactness. The law requires that you must use sound judgment
based on reasonable probability.[5] Any award of front pay, therefore, cannot be
based upon speculation.[6]
As to the second element, how long s/he
would have continued to receive those earnings, you cannot automatically
presume that [Plaintiff] would have worked for [Defendant] for the remainder of
his/her life if the alleged discrimination [or other improper conduct] had not
occurred, unless there are facts or circumstances to warrant such a
presumption. On the other hand, it is
equally illogical to presume that [Plaintiff], absent alleged discrimination
[or other improper conduct], would not have continued to work for [Defendant]
for some period of time after the date of trial, unless there are facts or
circumstances to warrant such a presumption.[7]
As to the third element, a reasonable
likelihood that s/he will not be able to earn that amount in the future,
[Plaintiff] has the burden of proving that the damages s/he claims were caused
by [Defendant's] alleged unlawful discrimination [or other wrongful conduct]
are either permanent or will last for a reasonably determinable time. You must take into consideration whether the
position with [Defendant] would have ended for an unrelated reason or
[Plaintiff] would have left the company on his/her own accord in the absence of
discrimination [or other wrongful conduct] or [Plaintiff] could earn more in
the future, through more diligent effort, than the earnings that s/he projects.[8]
As part of discharging its burden to
prove [Plaintiff’s] failure to mitigate his/her damages leading up to the time
of trial, [Defendant] must present credible evidence which leads you to believe
that it is more likely than not that [Plaintiff] failed to mitigate or minimize
his/her damages. [Defendant] may establish this by proving that it is more
likely than not that (1) [Plaintiff] failed to make reasonable efforts to
secure comparable employment, and (2) other employment opportunities were
available that were comparable to the position [Plaintiff] (lost/was denied).[9] If you determine that [Defendant] has proven
that [Plaintiff] failed to undertake reasonable measures to mitigate her
alleged back pay damages and that there were comparable employment
opportunities available to [Plaintiff], then you should reduce the front pay
damages by the amount that you find that [Plaintiff] would have earned if
plaintiff had used reasonable measures to obtain the available replacement
employment. [10]
Because the future is uncertain and
unknown, neither party must prove that [Plaintiff] will or will not
definitively mitigate his/her lost wages in the future. [11]
[Defendant] does not have the burden to prove the unknown, where the unknown
largely turns upon [Plaintiff's] own post-trial decisions and matters
substantially within his/her own volition and control.[12] You must, therefore, use your sound judgment
to assess all of the evidence to determine the likelihood of such mitigation
throughout the future period of time during which [Plaintiff] seeks to recover
lost income.
If you decide from the evidence that it
is reasonably probable that [Plaintiff] will lose income in the future, because
[either] he/she has not been able to return to work, [or] he/she has not been
able to keep the same job, [or] he/she will be able to work for a shorter
period of time only, then you should include an amount to compensate for those
lost earnings. In deciding how much your
verdict should be to cover future lost earnings, think about those facts discussed
regarding past earning losses, including the nature, extent and duration of
injury. Consider [Plaintiff's] age
today, the level of [Plaintiff]’s former job with [Defendant], the level of
compensation that [Plaintiff] earned from [Defendant], [Plaintiff]’s general
state of health before his/her employment with [Defendant] ended, how long you
reasonably expect the loss of income to continue, and how much [Plaintiff] can
earn in any available job that he/she physically will be able to work. Obviously, the older the plaintiff is, the
higher level the plaintiff’s job was, and the more the plaintiff earned, the
longer it is likely to take the plaintiff to find comparable replacement
employment. However, the time period
covering [Plaintiff's] future lost earnings cannot go beyond that point when it
was expected that he/she would stop working because of retirement, had he/she
not been injured.[13]
If you decide from the evidence that
[Plaintiff]’s employment with [Defendant] would have ended at some point in the
future for reasons other than [Defendant]’s unlawful conduct, you should limit
any award for future economic losses to the date on which you find that
[Plaintiff] would have stopped working for [Defendant]. Similarly, if you find that by using reasonably
diligent measures, [Plaintiff] should have been able to find another job or
that [Plaintiff] should have been able to find a job earlier than s/he did or
that [Plaintiff] should have been able to find a higher-paying job than the one
s/he found, you should reduce any award for future economic losses by the
amount that you find that plaintiff would have earned if she had used
reasonably diligent measures to find comparable replacement employment.
Consider the probabilities of increases
in earnings resulting from raises for productivity or promotion and
[Plaintiff's] life expectancy and work life expectancy. Any figures you have heard on life expectancy
and work life expectancy are only statistical averages. They are not fixed rules; they are general
estimates. Use them with caution. Use your sound judgment in taking them into
account.[14]
A proper assessment of front pay
requires sensitivity to the competing interests of [Plaintiff], on the one
hand, in being made whole and [Defendant], on the other hand, in being spared
the duty to subsidize a prospective windfall.[15] However, if you are addressing damages, that
means that you have found that [Defendant] violated the law. In that regard, any uncertainties regarding
the amount of damages should be resolved against [Defendant] as the wrongdoing
party.[16]
Wright Corp., 425 N.J.Super. 335, 350 (App. Div. 2012).
[5] By analogy to future income loss in a
wrongful death case, see Tenore v. NuCar
Carriers, Inc., 67 N.J. 466, 494 -495 (1975). See also Friedman
v. C. S. Car Service, 108 N.J.
72, 78-79 (1987).
[6] Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 375 (2011); Lane v. Oil Delivery,
Inc., 216 N.J. Super. 413, 420
(App.Div.1987); see also Model Jury Charge (Civil) 1.12(O), “Damages” (1998)
(“Damages may not be based on conjecture or speculation”).
[9] Goodman
v. London Metals Exchange, Inc., 86 N.J.
19, 41 (1981); Wade v. Kessler Inst.,
343 N.J. Super. 338, 355 (App. Div.
2001); see also Model Civil Jury Charge (Civil) 2.33, “Mitigation of Economic
Damages – Back Pay” (2013).
[13] The collateral source rule (see cases under
Model Civil Charge 8.11A applies to loss of earnings as well as to medical and
hospital expenses. Plaintiff may recover
damages for loss of earnings although having been paid wages or their
equivalent by employer pursuant to sick or annual leave benefits or retirement
on half salary under a pension contract.
Rusk v. Jeffries, 110 N.J.L. 307, 311 (E. & A. 1933). P.L.
1987, c. 326 eliminates the
collateral source rule as to causes of action arising on or after December 18,
1987. Deduction of benefits, less
premiums, is done by the court, not the jury.
See also N.J.S.A. 59:9-2(3)
for similar effect of New Jersey Tort Claims Act.
[14] This concept should be charged if there is
appropriate evidence received on the subject.
See Charge 8.11G regarding life expectancy.
[16] V.A.L.
Floors, Inc. v. Westminster Communities, Inc., 355 N.J. Super. 416, 427 (App. Div. 2002).
