Page 31 - Economic Damage Calculations

Some courts have ruled that the fact of damages must be proved with reasonable certainty, but the
amount of damages may be estimated.

Certainty in the fact of damages is essential. Certainty as to the amount goes no further than to
require a basis for a reasoned conclusion. (Palmer v. Connecticut Railway & Lighting Co., 311
U.S. 544, 561 [1941])

Some courts have concluded that the burden on the precise amount of the plaintiff’s damages, including
discounting calculations, falls to the defendant.

Whatever ... uncertainty there may be in [a] mode of estimating damages, it is an uncertainty
caused by the defendant’s own wrong act; and justice and sound public policy alike require that
he should bear the risk of uncertainty thus produced. (Story Parchment Co. v. Paterson Parch-
ment Paper Co., 282 U.S. 555, 51 St. Ct. 248 [1931])

Other courts have adopted the following approach, which is sometimes referred to as the wrongdoer’s
rule.

[T]he burden of uncertainty as to the amount of damages is upon the wrongdoer, and the test for
admissibility of the evidence concerning prospective damages is whether the evidence has any
tendency to show their probable amount. (Contemporary Mission, Inc. v. Famous Music Corp.,
557 F.2d 918, 926 [2d Cir. 1977])

Foreseeability

This refers to whether the damages in question were expected and knowable in advance. In tort law, the
foreseeability element of proximate cause is established by proof that a person of ordinary intelligence
and prudence should reasonably have anticipated danger to others created by his or her negligent act,
and that which is objectively reasonable to expect, not merely what might conceivably occur.

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