N.J. Model Civil Jury Charge 2.34

2.34 MITIGATION OF ECONOMIC DAMAGES - FRONT PAY

(02/2013; revised 04/2014)

[Plaintiff] also seeks to recover earnings that wi ll be lost in the future.

He/she has a right to be compensated for any earnin gs which you find will

probably be lost and proximately caused by the inju ries brought about by

defendant's alleged wrongdoing.

1 This type of damages is called “front pay.”

“Front pay” projects and measures the ongoing econ omic 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 exten ds to front pay. Here,

[Plaintiff] must prove, by a preponderance of the e vidence, (1) what s/he would

have earned had s/he not suffered the wrong alleged ly 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 ha ve earned had s/he not

suffered the wrong allegedly committed by [Defendan t], [Plaintiff] has the

1 Coll v. Sherry , 29 N.J . 166, 175 (1959)

2 Donelson v. DuPont Chambers Works , 206 N.J . 243, 251 n. 9 (2011); Quinlan v. Curtiss-Wright Corp ., 425 N.J.Super . 335, 350 (App. Div. 2012).

3 Quinlan v. Curtiss-Wright Corp ., 425 N.J. Super . 335, 364 (App. Div. 2012).

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 e xactness. The law requires

that you must use sound judgment based on reasonabl e 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 th at [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 presumptio n. On the other hand, it is

equally illogical to presume that [Plaintiff], abse nt alleged discrimination [or

other improper conduct], would not have continued t o 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 t hat s/he will not be able

to earn that amount in the future, [Plaintiff] has the burden of proving that the

4 Caldwell v. Haynes , 136 N.J . 422, 436 (1994).

5 By analogy to future income loss in a wrongful de ath 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 Char ge (Civil)

1.12(O), “Damages” (1998) (“Damages may not be based on conjecture or speculation”).

7 Quinlan v. Curtiss-Wright Corp ., 425 N.J .Super . 335, 352 (App. Div. 2012).

damages s/he claims were caused by [Defendant's] al leged unlawful

discrimination [or other wrongful conduct] are either permanent or will last for a

reasonably determinable time. You must take into c onsideration whether the

position with [Defendant] would have ended for an u nrelated reason or

[Plaintiff] would have left the company on his/her own accord in the absence of

discrimination [or other wrongful conduct] or [Plai ntiff] 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 [Plaint iff’s] failure to mitigate

his/her damages leading up to the time of trial, [D efendant] must present

credible evidence which leads you to believe that i t 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 th an not that (1) [Plaintiff] failed

to make reasonable efforts to secure comparable emp loyment, and (2) other

employment opportunities were available that were c omparable 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 employme nt opportunities

available to [Plaintiff], then you should reduce th e front pay damages by the

amount that you find that [Plaintiff] would have ea rned if plaintiff had used

8 Quinlan v. Curtiss-Wright Corp ., 425 N.J. Super . 335 (App. Div. 2012)

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 J ury Charge (Civil) 2.33,

“Mitigation of Economic Damages – Back Pay” (2013).

reasonable measures to obtain the available replacement employment. 10

Because the future is uncertain and unknown, neith er party must prove

that [Plaintiff] will or will not definitively miti gate 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-t rial 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 t o determine the likelihood of

such mitigation throughout the future period of tim e during which [Plaintiff]

seeks to recover lost income.

If you decide from the evidence that it is reasona bly 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 ab le 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 earning s, think about those facts

discussed regarding past earning losses, including the nature, extent and duration

of injury. Consider [Plaintiff's] age today, the l evel of [Plaintiff]’s former job

with [Defendant], the level of compensation that [P laintiff] earned from

[Defendant], [Plaintiff]’s general state of health before his/her employment with

10 Quinlan v. Curtiss-Wright Corp., 425 N.J. Super . 335, 369 (App. Div. 2012).

11 Quinlan v. Curtiss-Wright Corp., 425 N.J. Super . 335, 369 (App. Div. 2012).

12 Quinlan v. Curtiss-Wright Corp., 425 N.J. Super . 335, 362 (App. Div. 2012).

[Defendant] ended, how long you reasonably expect t he 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 ol der the plaintiff is, the higher

level the plaintiff’s job was, and the more the pla intiff earned, the longer it is

likely to take the plaintiff to find comparable rep lacement employment.

However, the time period covering [Plaintiff's] fut ure 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 f uture for reasons other than

[Defendant]’s unlawful conduct, you should limit an y 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 abl e to find another job or that

[Plaintiff] should have been able to find a job ear lier 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 econo mic losses by the amount

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 expense s. Plaintiff may recover damages for loss

of earnings although having been paid wages or thei r 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.

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 earning s resulting from raises

for productivity or promotion and [Plaintiff's] lif e expectancy and work life

expectancy. Any figures you have heard on life exp ectancy and work life

expectancy are only statistical averages. They are not fixed rules; they are

general estimates. Use them with caution. Use you r sound judgment in taking

them into account. 14

A proper assessment of front pay requires sensitiv ity 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 subs idize 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 [Defen dant] as the wrongdoing

party. 16

14 This concept should be charged if there is approp riate evidence received on the subject.

See Charge 8.11G regarding life expectancy.

15 Quinlan v. Curtiss-Wright Corp ., 425 N.J. Super . 335, 353 (App. Div. 2012).

16 V.A.L. Floors, Inc. v. Westminster Communities, Inc ., 355 N.J. Super . 416, 427 (App. Div.

2002).