General Damages-Loss of Enjoyment

The separate element of loss of enjoyment (of life) as a component of general damages is an example of how the law is a moving stream and how good law makes common sense.

Kirk v. WSU. In 1978 Washington State University as did all major D1 universities had a cheer leading squad. The cheer leaders were as they are today-athletics. During a cheer leading practice Kathleen Kirk a WSU cheerleader sustained serious orthopedic injuries (elbow and leg) when she fell during a cheer stunt practice. Practice was at Martin Stadium on AstroTurf which is a harder surface then practice mats. The stunt was a new untried maneuver. The cheer coach had transferred and no replacement was as let named. All this translated to a negligence lawsuit against WSU.

Loss of Enjoyment. Kathleen Kirk was more then a D1 cheerleader. She was a talented ballerina. She wanted to pursue a career in ballet after college. Her injuries prevented her from becoming a ballerina. Her lawyers knew they had general damage theories for pain and suffering and for disability. But pain and suffering compensates for physical and mental discomfort. And disability compensates for inability to lead a normal life. Neither pain and suffering nor disability compensate for the loss of a life pleasure. Stated another way neither compensate for the taking of the ability to pursue a specific artistic or athletic skill.

Moving Stream. Ms Kirk’s lawyers, Richard Eymann, Steven Jones and Robert Greer, argued for a separate loss of enjoyment damage instruction at trial. Spokane County Superior Court Judge John Schultheis agreed the law is a moving stream and allowed a separate loss of enjoyment damage instruction. The jury saw the separate element of loss of enjoyment as the evidence demonstrated Ms. Kirk was a future ballerina but the injuries prevented her ballet pursuit. The jury awarded loss of enjoyment damages.

Separate Element of General Damage. The Washington State Supreme Court in Kirk v. WSU, 109 Wn.2d 448, 746 P.2d 285 (1987), agreed with plaintiff attorneys and with Judge Schultheis. The court held loss of enjoyment is a unique general damage. It is a separate general damage. It compensates for injury when injury takes away a specific artistic and/or athletic skill.

It is important to recognize loss of enjoyment is a separate general damage. It does not merge into pain and suffering or into disability. Loss of enjoyment stands alone. Loss of enjoyment recognizes special talent. Loss of enjoyment recognizes the value to the person of her special talent. Loss of enjoyment recognizes when the special talent is taken away or reduced because of injury the jury needs to be made aware. In Washington as in most states the jury then awards the monetary amount it feels properly compensates plaintiff for her loss of enjoyment.

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One Response to “General Damages-Loss of Enjoyment”

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