Maynard “Tony” Young and Laura Young appeal from the trial court’s order granting summary judgment to the Georgia Agricultural Exposition Authority (“GAEA”)
Tony Young and his wife sued Ronnie Shelby and others to recover for injuries inflicted on Young by two bulls owned and raised by Shelby. . . . Both Young and Shelby are experienced cattlemen who were displaying bulls during a beef exposition at fairgrounds in Perry [on April 2, 1998]. Young helped unload Shelby’s two bulls from the trailer in which they were being transported into a pen. To accomplish this task, Shelby released the bulls from the trailer, and Young manned the gate of the pen into which the bulls were supposed to run. Instead of entering the pen, however, the first bull collided with a panel on the gate, which broke loose and impaled Young’s upper thigh. After being thrust to the ground, Young was trampled and kicked by the bulls.
Young v. Shelby,
In considering the Youngs’ current appeal from the grant of GAEA’s motion for summary judgment, we review the evidence de novo, and we construe all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the Youngs as nonmovants. Congress Street Properties v. Garibaldi’s,
As a result of the 1998 incident with the bulls, Tony Young’s right femoral vein was punctured, and he suffered a torn left rotator cuff. The Youngs contend that the rotator cuff injury prevents him from working as a cattle embryologist, which requires the use of both arms, and Tony seeks to recover the resulting economic loss on his outside cattle embryo business.
Although Tony was not able to locate specific records relating to his embryology business in support of this claim, he furnished joint income tax returns he filed with his wife in 1996 and 1997, in addition to other returns filed after his accident. The 1996 return reflects income of $58,821 from “Sales of livestock, produce, grains, and other products you raised” and $8,851 in other income, which a separate schedule identifies as income from “medicine and semen embryos” and “labor,” for a total gross income of $67,672. This information was included in Schedule F of the return, used for calculating the “Profit or Loss from Farming.” Tony’s accountant, who did not prepare the 1996 return, testified in his deposition that he believed that all this income may all have been related to the cattle embryo business, because Tony implanted embryos into his own cows and sold the resulting calves. The accountant said that the entry for the sale of livestock on Schedule F probably reflected the sale of such cattle, because Tony’s sale of breeder cattle was reflected on a separate schedule as a capital gain. The 1996 Schedule F also reflected Tony’s share of the farm expenses, which when applied against the gross income resulted in a net farm income for Tony in 1996 of $12,042.
The 1997 return reflects net farm income of $25,545, and the Schedule F for that year reflects income from the sale of livestock in
In contrast, the tax returns for the years after the accident reflect no “other income” on Schedule F. The Youngs’ tax return for 1998, the year of his injury, reflects only $5,166 in income from the sale of livestock and nothing else, and overall, Tony’s farm activity resulted in a loss for the year. The record contains no return for 1999, and the Youngs’ returns for the following years reflect net losses or, in one year, a profit under $500 from the farming operation until 2004, when the net profit was $27,316. In 2005, however, the profit again dipped below $300.
GAEA’s motion for summary judgment asserted that this evidence was too speculative to allow a jury to ascertain Tony’s economic loss. Following briefing and a hearing, the trial court agreed, noting that the Youngs’ tax returns reflected no wages during the pertinent years and finding that
Mr. Young’s claims for lost wages and lost profits are very speculative and imprecise. Mr. Young has no ascertainable basis for determining lost profits or income, and in reading his deposition, it appears that his figures are generally very speculative and he often refers to them as “guesstimates.”... [A] 11 of the deposition testimony and other claims by the Plaintiff and his accountant indicated a total and complete inability to specifically calculate any lost wages or profits as required by law in order to recover same.
On appeal, the Youngs argue that the trial court erred in granting GAEA’s motion for summary judgment because the evidence is sufficient to create a jury issue on this claim. We agree.
To properly consider the issue on appeal, we must first ascertain the nature of Tony’s claim for economic loss. GAEA’s motion attempted to characterize the claim primarily as one for lost profits.
“In Georgia, the loss of one’s earnings from the date of injury to the date of trial as a result of a personal injury is a separate and distinct pecuniary damage that is recoverable, so long as the amount can be determined with reasonable certainty.” (Footnote omitted.) Dossie v. Sherwood,
[I]f it has been sufficiently established that the loss of earnings was caused by the tortious conduct of the defendant, the fact that the exact measure of the earnings lost may be challenging for the jury to calculate does not preclude their recovery. As we have previously explained, [t]he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to*249 cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.
(Punctuation omitted.) Id. at 188, quoting Crosby v. Spencer,
And as Dossie recognized,
[wjhere by the very nature of things no better evidence is available or possible of production, the law perforce contents itself with proof of past average earnings, not always perhaps as proof of actual lost profits, but as illustrating the earning capacity of the plaintiff, and hence the value of his lost time.
(Emphasis supplied.) Id. (acknowledging that “[i]t is well-nigh impossible to furnish absolutely precise evidence as to the probable earnings of a professional man”).
Here, Tony testified as to the average gross and net amounts he earned for his cattle embryo business during the period 1986 to 1998. He also presented tax returns from 1996 and 1997 reflecting income from the embryo business, and returns from 1998 forward showing no income from this business. Although it is unclear from the tax returns alone what portion of the farm expenses on the Schedules F for 1996 and 1997 were attributable to the embryology business, Tony testified that he generally cleared 50 percent of the income from this sideline. And even though the 1996 and 1997 tax returns appear to conflict with his testimony about average earnings, Tony acknowledged that he may not have heen doing as much outside embryology business during that time period.
We conclude that this evidence was sufficient to present a jury issue on Tony’s economic loss claim. See Olariu v. Marrero,
Judgment reversed.
Notes
The Georgia Cattlemen’s Association, a/k/a the Beef Breeds Council of the Georgia Cattleman’s Association (“GCA”) also filed a brief on appeal, but the appellate record contains no indication that the GCA joined in GAEA’s motion for summary judgment.
The trial court granted, summary judgment to Shelby on the Youngs’ claims, and this Court affirmed that judgment in Young v. Shelby,
When he lost the ability to perform these procedures after the accident, Tony found that it was less profitable to hire others to perform these services on his own farm’s cows. But Tony apparently does not seek compensation for any losses arising from his inability to provide embryology services to his own cattle.
Tony’s accountant explained that the office’s program for preparing these returns changed that year and it did not generate a separate schedule.
Georgia law generally requires a higher level of proof to establish lost profits. See Johnson County School Dist. v. Greater Savannah Lawn Care,
Although GAEA asserts that the complaint sought lost wages, the complaint is not included in the record on appeal. But even if the complaint asserted a claim for lost “wages,” Tony would not he barred from seeking to recover earnings he lost as a result of his injuries under the notice pleading standard.
Dossie v. Sherwood,
Moreover, we note that these returns addressed only two years of the twelve-year period covered hy Tony’s testimony.
Although the Gipson decision uses the term “lost profits,” the recovery sought in that case might more accurately he described as “lost earnings.”
Although GAEA argues in its supplemental brief that testimony from Tbny’s doctor casts doubt that Tbny’s injury prevents him from his work as a cattle embryologist and thus that his injury is not the cause of his lost earnings, GAEA failed to raise this issue on summary judgment -below and thus the Youngs were not given an opportunity to address it before the trial court. Accordingly, we cannot consider it on appeal. See Knight v. American Suzuki Motor Corp.,