This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Jonathan Z. Moos,



Sara J. Smith, et al.,


Filed May 19, 1998


Mansur, Judge*

Hennepin County District Court

File No. 9518574

Alden E. Schlagel, Alden Schlagel Law Offices, 1600 Pioneer Building, 336 North Robert Street, St. Paul, MN 55101-1507 (for respondent)

Nicholas L. Klehr, Candlin & Wright, 3800 West 80th Street, #1500, Bloomington, MN 55431-4429 (for appellants)

Considered and decided by Peterson, Presiding Judge, Crippen, Judge, and Mansur, Judge.*

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.



In this appeal challenging the district court's instructions to the jury and the jury's award of lost future earnings, we affirm. The record establishes that the instruction was not erroneous and the jury's award was reasonable under the circumstances.


Jonathan Moos was travelling on interstate highway 394 when he hit a dip in the road filled with water and slush, causing him to lose control of his vehicle. Moos came to rest just below the highway 169 entrance ramp. Part of his vehicle was over the curb and part was extending out over the fog line. He exited the vehicle to survey the damage and noticed only minor front end damage.

After several cars passed by, Jon Saude stopped to see if Moos needed any assistance. Moos said that he felt fine, but that he was unable to get his car started again. While Saude stood nearby, Moos again tried to start the car. He had the driver's door open and one leg on the ground outside of the car when Smith, who was headed down the highway 169 entrance ramp, ran into Moos's vehicle at an estimated speed of between 40 and 50 miles per hour.

At trial, Moos offered the testimony of both his chiropractor and neurologist. Both testified that Moos suffered permanent injuries to his lower back and neck as a result of the accident. Moos also offered the testimony of an expert regarding his potential to become a professional dancer. She testified that Moos was one of the two or three percent of dancers with potential

to make a career out of it. Moos had trained for several years and had recently began to earn money performing and teaching dance classes. Moos's neurologist testified that as a result of the injuries he suffered in the accident, Moos would not be able to do certain movements necessary for the particular dancing Moos performed.

The jury awarded Moos $10,000 in future medical expenses, $372 for lost earnings up to the time of trial, $22,500 for future lost earnings, $10,000 for past pain, disability and distress, and $15,000 for future pain and suffering. Smith moved for judgment notwithstanding the verdict, or in the alternative, a new trial. Both motions were denied and Smith appeals.



Smith first argues the district court committed reversible error by instructing the jury that they were not to consider Moos's driving conduct prior to his vehicle coming to rest below the highway 169 entrance ramp. The decision to grant a motion for a new trial on the ground of an erroneous jury instruction is committed to the discretion of the trial court and will not be reversed on

appeal absent a clear abuse of discretion. Paulson v. Lapa, Inc., 450 N.W.2d 374, 378 (Minn. App. 1990) (citations omitted). In reviewing a trial court's jury instructions, the instructions must be "viewed in their entirety from a practical and common sense point of view." Id. (citing Cameron v. Evans, 241 Minn. 200, 208, 62 N.W.2d 793, 798-99 (1954)). A new trial is justified on the basis of an improper instruction only if the instructions "destroy the substantial correctness of the charge, cause a miscarriage of justice, or result in substantial prejudice." Kirsebom v. Connelly, 486 N.W.2d 172, 174 (Minn. App. 1992).

Smith concedes in her brief on appeal that respondent's prior conduct was irrelevant in determining the cause of the accident, but argued it was relevant with regard to damages. The district court instructed the jury not to "consider any driving conduct of the plaintiff prior to his vehicle being disabled in the area of the entrance ramp." Although the instruction might have been clearer, it does not prevent the jury from considering the consequences of Moos's initial accident. It merely instructs them not to consider his driving conduct. The instructions cover 14 pages of transcript and only the above sentence addressed Moos's driving conduct prior to his vehicle stopping.

Furthermore, prior to giving the instruction, the court gave the emergency instruction which allowed the jury the opportunity to absolve Smith of liability and the instruction immediately after the one at issue here covered the apportionment of fault and what a direct cause is. Both of these instructions allowed the jury to consider Moos's conduct. Viewed in their entirety, we believe the instructions did not "destroy the substantial correctness of the charge, cause a miscarriage of justice, or result in substantial prejudice." Id.


Smith next argues the evidence was insufficient to support the jury's award for lost future earnings. A motion for a new trial on the grounds of an improper jury verdict will not be granted unless the verdict is so contrary to the preponderance of the evidence as to imply either that the jury failed to consider all of the evidence or that it acted upon some passion or prejudice. Lamb v. Jordan, 333 N.W.2d 852, 855-56 (Minn. 1983).

An instruction on the loss of future earning capacity is appropriate when the plaintiff has shown the reasonable certainty of future damages by a fair preponderance of the evidence. Kwapien v. Starr, 400 N.W.2d 179, 183 (Minn. App. 1987) (citing Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980)). An award for the impairment of earning capacity should be based on such factors as the age, life expectancy, health, occupation, talents, skill, experience, and training of the individual plaintiff. Kwapien, 400 N.W.2d at 184 (citations omitted). Evidence of past earnings is not necessary. Id. at 183 (citations omitted).

Smith alleges that Moos was not claiming a general loss of earning capacity, but instead claimed the loss of his ability to pursue a chosen career, dancing. Smith concedes that Moos was not required to show a loss of pecuniary benefit. Midway Nat'l Bank v. Estate of Bollmeier, 504 N.W.2d 59, 65 (Minn. App. 1993). She also concedes that an individual with no previous earning history can recover for the impairment of future earning capacity, Lemay v. Minneapolis St. Ry. Co., 245 Minn. 192, 200, 71 N.W.2d 826, 831 (1955), yet she argues that Moos's lost future earnings are too speculative to recover. We disagree.

Moos spent several years training to become a dancer and was just starting to get paid for it. He is now unable to pursue that career and thus is entitled to damages for the loss of the future earnings he would have received through his dancing. The jury awarded Moos only $22,500, an amount that, under the circumstances, does not appear to be the result of passion or prejudice.