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Snow v. Villacci
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 127
Docket:	Cum-99-685
Argued:	April 4, 2000
Decided:	June 30, 2000




	[¶1]  Robert Villacci and Gene Villacci d/b/a Villacci Motor Sales,{1}
appeal from a judgment in favor of Richard Snow entered in the Superior
Court (Cumberland County, Cole, J.), following the court's denial of Villacci's
motion for partial summary judgment.  Villacci's appeal requires us to
determine whether a plaintiff in a tort action may recover damages that are
in the nature of a "lost earning opportunity."  Because we conclude that
damages of this nature may be recovered when proven to have been
proximately caused by the negligence of the defendant, we affirm the
	[¶2]  In 1996, Snow took his vehicle to the Villacci facility for repairs. 
When Robert Villacci mistakenly started Snow's vehicle while it was in gear,
he pinned Snow between the car and a workbench.  Snow sustained
significant injuries to his legs and lost approximately fourteen weeks of work
at Merrill Lynch, Pierce, Fenner & Smith Incorporated, an investment
firm.{2}  He then brought suit against Villacci, alleging that Robert Villacci's
negligence was the proximate cause of his injuries and damages.  Among the
damages sought by Snow were those that he referred to as "a lost earning
opportunity" resulting from the setback in his career training efforts. 
	[¶3]  Snow's lost opportunity claim arose out of his anticipated
progress in a professional training program.  At the time of the injury, Snow
was working toward a designation as a financial consultant-essentially a
stockbroker position.  He was in month twenty of Merrill Lynch's twenty-
five-month program.  Progress toward the program's goals was measured on
a quarterly basis.  With five months left in the program at the time of his
injuries, Snow had not achieved the goals, and his successful completion of
the program was possible but not assured.  According to Snow, even though
he was allowed an extension to complete the program after he was injured,
his brief absence from the program set him back and prevented him from
successfully meeting the programs goals.  At the completion of the program,
he had not met the program's goals and was not invited to become a
financial consultant.{3}
	[¶4]  Although Snow did not complete the program, Merrill Lynch did
retain him as an investment associate, a position which allowed Snow to
earn substantial income, but not the level of income he had anticipated. 
Snow asserted that he would not be permitted to undertake the Merrill
Lynch Financial Consultant Program again and that a noncompetition
agreement he had signed would prevent him from becoming a stockbroker
with another company.{4}  He claimed, therefore, that although he is able to
earn income as an investment associate, he lost an opportunity for
substantially higher income as a financial consultant.
	[¶5]  As a consequence, although Snow currently suffers no continuing
physical or mental impairment or other disability caused by Villacci's
negligence, he asserts that the weeks of lost work in 1996 have resulted in a
current and prospective loss of an opportunity to increase his earnings.
	[¶6]  Villacci moved for partial summary judgment regarding Snow's
claim for lost earning opportunity, asserting that Snow sought recovery for a
type of damage that has not been and should not be recognized in Maine. 
The court determined that there were material facts in dispute, impliedly
determining that a claim for "lost earning opportunity" was not precluded
as a matter of law, and denied the motion for partial summary judgment. 
Thereafter, the parties entered a stipulation resolving all outstanding claims
in order to allow an appeal of the issue of law raised by the defendants.  The
stipulation resulted in entry of a judgment in favor of Snow along with a
court approved agreement that all undisputed damages would be paid
immediately by the defendants and that an additional amount would be paid
upon resolution of this appeal in Snow's favor.  The additional amount
related solely to Snow's claimed lost earning opportunity.{5}
A.  Standard of Review

	[¶7]  The unique procedural posture of this matter requires careful
attention to the appropriate standard of review.  The only question before us
is whether the court erred when it denied summary judgment with respect
to this claim for damages.  "The function of a summary judgment is to
permit a court, prior to trial, to determine whether there exists a triable
issue of fact or whether the question before the court is solely one of law." 
Bouchard v. American Orthodontics, 661 A.2d 1143, 1144 (Me. 1995),
quoted in Steeves v. Bernstein, Shur, Sawyer & Nelson, P.C., 1998 ME 210,
¶ 11, 718 A.2d 186, 190. 
	[¶8]  Thus, unless we conclude as a matter of law that no plaintiff,
under any facts, may recover damages for the loss of an earning opportunity,
we need only determine that Snow presented material facts upon which a
factfinder could have determined that he lost an earning opportunity,
however minimal, in order to affirm the denial of the motion.{6}

B.  Damages

	[¶9]  Generally, a plaintiff in tort is entitled to all damages proximately
caused by a wrongdoer's actions.  The purpose of awarding damages in a tort
action is to "make the plaintiff whole by compensating him or her for any
injuries or losses proximately caused by the defendant's negligence."  See
Zillman, Simmons & Gregory, Maine Tort Law § 19.01 at 663 (1999).  In
proving damages, the plaintiff must "establish[] facts from which the loss
may be determined to a probability."  Currier v. Cyr, 570 A.2d 1205, 1210
(Me. 1990).  
	[¶10]  Damages relating to lost earnings have traditionally fallen into
two categories, lost wages or earnings and lost earning capacity.{7}  The
matter before us does not involve either type of loss.  Although Snow has in
some instances referred to his claim in terms of a "lost earning capacity,"
damages of that type are distinct from the damages he seeks.  See, e.g.,
Goldstein v. Sklar, 216 A.2d 298, 309 (Me. 1966) (discussing evidence
necessary to make out lost earning capacity claim).  A lost earning capacity
claim requires evidence that the injury caused by the wrongdoer has caused
an ongoing impairment that has diminished or eliminated the plaintiff's
ability to earn income.  See Kaler v. Webster, 348 A.2d 702, 703-04 (Me.
1975) ("[For example], where a professional person sustains a relatively
minor, albeit permanent injury of some sort, impairment of earning capacity
is less obvious and the jury needs evidence connecting the injury to the
alleged impairment before it can make a rational assessment of damages.").
	[¶11]  Unlike a loss of earning capacity, an earning opportunity may be
lost when, during the period of disability caused by the defendant's
negligence, a specific earning opportunity arises which could otherwise have
been be utilized by the plaintiff, but is lost because of a disability caused by
the negligence of the defendant. 
	[¶12]  One type of lost earning opportunity may occur when a person
who is in an education or training program is injured and is unable to
complete the program on schedule.  If the injury resolves and the trainee is
capable of returning to the program, the trainee may nonetheless recover
damages representing the lost opportunity to obtain the improved income
during the period of time in which the trainee would have begun to earn at
the new level but remains in the training program.  Again, the impediments
to recovery are evidentiary rather than legal in nature.{8}  See M.L.
Schellenger, Annotation, Proof of Prospective Earning Capacity of Student or
Trainee, or of Its Loss, in Action for Personal Injury or Death, 15 A.L.R. 2d
418, 419-24 (1951); J.J. Director, Annotation, Admissibility, In Personal
Injury or Death Action, of Evidence as to Injured Party's Intention to Enter
Occupation Other Than That Engaged in at Time of Injury or Death, 23
A.L.R. 3d 1189, 1193-96 (1969).{9}
	[¶13]  Here, Snow does not claim that his physical or intellectual
capacity to earn an income has been impaired; rather, he claims that he lost
a unique opportunity to obtain certain future earnings due to Villacci's
negligence.{10}  Villacci's opposition to Snow's claim, distilled to its essence,
is that damages for lost earning opportunity are necessarily based on nothing
more than speculation and thus may not, as a matter of law, be recovered. 
Although we reject such an absolute rule, we recognize the need for careful
attention to the quality of the evidence by the trial court.  Damages may not
be awarded when the proof is speculative.  See Bernier v. Raymark Indus.,
Inc., 516 A.2d 534, 543 (Me. 1986) (quoting Schweitzer v. Consolidated Rail
Corp., 758 F.2d 936, 942 (3rd Cir. 1985)).  When the evidence offered to
show prospective damages is in the nature of "mere guesswork and
conjecture," the factfinder will be unable to determine the plaintiff's loss
"with reasonable certainty."  Ginn v. Penobscot Co., 334 A.2d 874, 887 (Me.
	[¶14]  The proposition that some claims may not have a solid
evidentiary basis, however, does not lead to the conclusion that such claims
will never be presented with a meaningful evidentiary foundation.  It does
not follow that a difficulty in proof should, as a matter of law, preclude a
claim.  In other words, although overcoming speculation and conjecture may
be more problematic when the damages are primarily built on future
expectations, difficulty in proof does not equate to the absence of a claim at
	[¶15]  Thus, because the distinction between ordinary earnings
damages and lost earning opportunity is a matter of evidentiary reliability
rather than a fundamental distinction in recoverability, there is no logical or
public policy reason to deny recovery to a person who has lost an
opportunity due to the negligent acts of another person, as long as the
elements necessary for recovery are proven by a preponderance of the
evidence.  If a plaintiff has in fact lost a unique opportunity to increase her
earnings, and that loss was caused by the defendant's actions, she should be
able to recover those damages just as she would have if the defendant's
wrongdoing had caused her to lose wages.  Although we recognize that proof
of this type of loss may be more complex than proof of other traditional
losses, we are confident that trial judges will exercise appropriate discretion
in excluding evidence that is nothing more than mere hope or speculation.{12}  
	[¶16]  Accordingly, recovery may be had for the loss of an earning
opportunity if the claimant proves, by a preponderance of the evidence, that:
(1) the opportunity was real and not merely a hoped-for prospect; (2) the
opportunity was available not just to the public in general but to the plaintiff
specifically; (3) the plaintiff was positioned to take advantage of the
opportunity; (4) the income from the opportunity was measurable and
demonstrable; and (5) the wrongdoer's negligence was a proximate cause of
the plaintiff's inability to pursue the opportunity.  
	[¶17]  Here, Snow presented facts upon which a rational jury could
have concluded that (1) he did have an opportunity to complete the financial
consultant program; (2) the opportunity was available to him personally
because he had been accepted into and was engaged in the program;
(3) Snow had completed twenty months of the program and was capable of
completing it successfully; (4) the additional income anticipated from the
financial consultant position was demonstrable and measurable and not
speculative; and (5) Snow's failure to complete the program and begin
earning the higher income was proximately caused by Villacci's
negligence.{13}  Thus, had a jury accepted Snow's facts, it could have awarded
damages for the period of time during which Snow was set back in his
efforts to achieve his financial consultant designation, or the period of time
during which Snow was unable to obtain the higher income level, as a result
of Villacci's negligence.
	[¶18]  Finally, Villacci notes that Snow hoped to prove a permanent
loss of increased income based on his claim that he had lost a once-in-a-
lifetime opportunity from which he could never recover.{14}  Villacci asks us
to hold that a plaintiff may never recover for the permanent loss of income
opportunity when the plaintiff no longer suffers from any disability caused by
the defendant.{15}  Because of the unique procedural posture of this matter,
however, we do not reach this issue.  All that Snow was required to do to
survive the motion for summary judgment was to demonstrate that there
were sufficient facts upon which a jury could award damages for a "lost
earning opportunity."  He did so. Whether Snow could have recovered for
only a minimal period of time or for a longer period cannot be determined
on this record.
	[¶19]  The trial court had before it a claim for lost earning opportunity
and a motion for partial summary judgment regarding the recoverability of
those damages.  It was not called upon to make the finely tuned evidentiary
decisions that would be required as the matter proceeded to trial.  Because
it did not err in concluding that a lost earning opportunity is a damage
recoverable under Maine law, it properly denied Villacci's motion for partial
summary judgment.
	The entry is:
Judgment affirmed.

Attorney for plaintiff: Steven D. Silin, Esq., (orally) Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 Attorneys for defendants: Christopher C. Dinan, Esq., (orally) Ivy L. Frignoca, Esq. Monaghan, Leahy, Hochadel & Libby, LLP P O Box 7046 Portland, ME 04112-7046
FOOTNOTES******************************** {*} Dana, J., sat at oral argument, but did not participate in the case thereafter. {1} . It appears from the record that the injury in question occurred while the Villacci business was owned by Gene Villacci Sr. On the senior Villacci's death, the business was split between the brothers, with Robert operating the service portion of the business and Gene Jr. operating Villacci Motor Sales, a limited liability company. No party contends that any named defendant is improper, and we will refer to the defendants simply as Villacci. {2} . The weeks were not consecutive. After approximately ten weeks, Snow returned to work but later lost several more weeks due to arthroscopic or restorative surgery. {3} . Villacci argues that Snow's lack of success was evident before the accident and that any failings Snow demonstrated in the final months were the result of his own shortcomings, not Villacci's negligence. Any dispute regarding proximate cause would ultimately have been resolved by the factfinder had the matter proceeded to trial. {4} . Neither party included a copy of the noncompetition agreement in the record, and its provisions, including duration, were subject to dispute. {5} . A denial of a motion for summary judgment is not a final judgment, and therefore is not ordinarily appealable. See Andrews v. Department of Envtl. Protection, 1998 ME 198, ¶ 4, 716 A.2d 212, 214 (holding death knell exception to this rule applied when a defense of sovereign immunity has been asserted). Because the parties have stipulated to the entry of judgment based on the single legal issue addressed in that denial, thereby resolving all factual matters and leaving nothing for litigation, the matter is properly before us on the entry of a stipulated final judgment. {6} . To date, we have not been required to address the precise question presented here. See Decesere v. Thayer, 468 A.2d 597, 599 n.2 (Me. 1983); Hood v. Mercier, 499 A.2d 147, 148 (Me. 1985), on appeal after remand, 523 A.2d 572, 574 n.1 (Me. 1987). {7} . See Zillman, supra § 19.03 at 673 (defining two components of employment related damages as lost wages and lost earning capacity). See, also, Horton & McGehee, Maine Civil Remedies § 4.3-3 at 4-7 ("[I]n a personal injury case the plaintiff may be awarded damages . . . for reduced earning capacity.") A "lost earning capacity" has been defined as "the diminution or loss of the ability to earn money." 2 Jerome H. Nates et al, Damages in Tort Actions § 10.21, at 10-32 (1999) (emphasis added). {8} . Lost earning opportunity damages have been peripherally addressed in a number of contexts. See, e.g., Arthaud v. Mutual of Omaha Ins. Co., 170 F.3d 860, 862 (8th Cir. 1999) (holding, under Missouri law, that evidence was insufficient to support a claim for lost job opportunity resulting from alleged compelled self-defamation); Jones v. Western & S. Life Ins. Co., 91 F.3d 1032, 1036 (7th Cir. 1996) (holding, under Illinois law, that plaintiff in a defamation case had to provide proof that job opportunity existed and was worth a "particular amount of money" before it was proper to submit the claim to a jury); Smith v. City of Chicago, 913 F.2d 469, 472-74 (7th Cir. 1990) (holding evidence of lost job opportunity arising from unconstitutional conduct leading to plaintiff's arrest was properly excluded when plaintiff's arrest was justified on other grounds and thus he had not suffered actual damages); Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 526 (1st Cir. 1990) (holding, under Massachusetts law, that evidence of a particular job opportunity was required before reputation damages would be allowed); Rodriguez v. Henderson, 578 N.E.2d 57, 62, 64-65 (Ill. App. Ct. 1991) (holding plaintiffs stated a claim and had standing to challenge the constitutionality of a zoning ordinance where they alleged, among other things, lost job opportunities arising from the rezoning of a manufacturing district to a commercial/residential district). {9} . Several of these analyses blur the distinction between a lost earning capacity and a lost earning opportunity. Jurisdictions addressing this type of claim have generally recognized a claim for lost earning opportunity, and in those cases where evidence of such a loss is not allowed, exclusion is generally based on the remote or conjectural nature of the evidence. See Schellenger, supra, at 421-22; Director, supra, at 1193-96. {10} . The cases relied on by Snow are factually distinct from the present case. In each, the plaintiff's injury resulted in permanent disability or death. See Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 700-01 (Tenn. Ct. App. 1999); O'Malley v. Peerless Petroleum, Inc., 423 A.2d 1251, 1254 (Pa. Super. Ct. 1980); Dickens v. United States, 545 F.2d 886, 892 (5th Cir. 1977); Frankel v. United States, 321 F. Supp. 1331, 1335-36 (E.D. Pa. 1970); Turrietta v. Wyche, 212 P.2d 1041, 1043 (N.M. 1949). {11} . Cf. Zeilman v. County of Kern, 214 Cal. Rptr. 746, 755 (Cal. Ct. App. 1985); Central La. Elec. Co. v. Pointe Coupee Elec. Membership Corp., 182 So. 2d 752, 756 (La. Ct. App. 1966). {12} . For example, Snow's father is a senior financial consultant with Merrill Lynch, and Snow alleged that he might have had an opportunity to take over his father's lucrative accounts. Snow has conceded that this assertion was based on speculation rather than substantial evidence, and that it would not have been admitted at trial. See also Jones, 91 F.3d at 1036 (finding district court properly refused to submit lost job opportunity claim to jury where plaintiff offered nothing other than his own testimony as evidence of the existence and value of a job opportunity); Redgrave v. Boston Symphony Orchestra, Inc., 855 F.2d 888, 896-97 (1st Cir. 1988) (finding evidence was insufficient to fully support jury's award for lost job opportunities). {13} . Villacci did assert the affirmative defense of failure to mitigate damages. See Michaud v. Steckino, 390 A.2d 524, 531 (Me. 1978). {14} . We cannot determine from this record whether and to what extent Snow's evidence of a permanent loss would have been admitted at trial or persuasive if admitted. {15} . Villacci urges us to define more precisely the parameters of a lost earning opportunity claim. We cannot do so on this record. Had the matter proceeded to trial, the trial court would have been called on to exclude evidence that was speculative or for which no causal connection to the defendant's negligence was demonstrated. In the absence of the inevitable sifting of evidence by the court in the context of the trial itself, we cannot undertake an appellate review of admissibility determinations. Cf. State v. Brackett, 2000 ME 54, ¶ 7, --- A.2d ----, ----.