Wis JI-Civil 3725

The loss of (prospective) (future) profits is a proper basis for awarding damages

resulting from a breach of contract when the circumstances are such that the future damages

may be computed with some reasonable certainty. The law places the burden of proof of

establishing loss of future profit upon (plaintiff). If you find the evidence in this case to be so

uncertain that you cannot do more than merely guess, speculate, or conjecture as to whether

(plaintiff) is entitled to recover certain damages due to the loss of future profits, then you

cannot award damages for future profits.

The law allows only such damages as have been proved by the greater weight of the

credible evidence, to a reasonable certainty. The burden to prove damages is not satisfied by

evidence which merely shows that something might or might not exist or might or might not

occur in the future. Mere possibilities leave the resolution of the issue of damages for future

profits in the field of speculation and conjecture to such an extent as to afford no basis for an

inference; and, in the absence of at least such inference, there is no sufficient basis for

awarding damages for the loss of future profits.

Although damages may not be based on speculation, it is not necessary that you

should arrive at a conclusion of loss of future profits with mathematical certainty. In the very

nature of things, such profits cannot be definitely determined. If the wrong itself is of such a

nature as to preclude the determination of the amount of damages with certainty, it will be

enough if the evidence shows the extent of the damages as a matter of just and reasonable

estimation, although the result may only be approximate.

With these general principles in mind, you are instructed that evidence of prior profits

in the same business may be used by you as a basis for a computation of loss of future profits

as well as any other evidence in the case bearing upon the issue.

Loss of future profits is to be determined by you as of the date of the breach of

contract.

Damages may be awarded for loss of profits only if you determine that the wrongful

act of the defendant caused the loss.

You may award damages for loss of profits only if you first determine that the

defendant at the time the contract was made had reason to foresee the loss of profits as a

probable result of a breach.