¶1 dissenting.
¶2 {¶ 18} I respectfully dissent from the decision of the majority and would instead reverse and vacate that part of the trial court’s judgment that awarded Megan Depouw money damages in the amount of the wages that the jury found that Thomas Depouw lost while he stayed at home to care for Megan Depouw’s injuries.
¶3 {¶ 19} In the complaint the plaintiffs filed, Thomas Depouw pleaded a claim for loss of consortium. He made no claim for his lost wages. Megan Depouw alleged that she had “incurred medical expenses in an amount not yet determined, and lost income in amounts as not yet determined, and may continue to suffer such losses in the future.”
¶4 {¶ 20} Megan Depouw was employed outside the home. She was unable to work due to her injuries, and she lost wages she would have earned but for her inability to work. However, she was compensated for her own lost wages by the tortfeasor’s insurer. The record suggests that it was not until the day of trial that defendant learned that Megan Depouw intended to offer evidence of Thomas Depouw’s lost wages to prove her own lost-income claim. Defendant then made an oral motion in limine to exclude that evidence, arguing that it was not evidence of a loss that Megan Depouw had suffered “directly.”
¶5*343 {¶ 21} The trial court overruled defendant’s motion. The court reasoned that the wages Thomas Depouw lost while he stayed at home to care for his wife are “a loss to the family,” adding that “the jury will [have] to decide whether the care [he gave his wife] was necessary, for Mr. Depouw to stay at home or not.”
¶6 {¶ 22} Thomas Depouw testified concerning the debilitating and painful nature of the bodily injuries his wife suffered, explaining that he stayed home from work to care for her as a result. He testified that he missed “98 hours or 12.25 days of work total.” He stated that the total amount of wages he lost as a result was $2,787.12. The evidence was admitted by the court over defendant’s further objections.
¶7 {¶ 23} Defendant renewed her objection to the claim for Thomas Depouw’s lost wages in connection with the jury instructions the court proposed to give. The court overruled the objection, and in its instruction to the jury, the court stated:
¶8 {¶ 24} “You will decide by the greater weight of the evidence an amount of money that will reasonably compensate the plaintiff for the actual injury proximately caused by the negligence of defendant.
¶9 {¶ 25} “In deciding this amount, you will consider the nature and extent of the injury, the effect upon physical health, the pain and suffering experienced, the ability or inability to perform usual activities, Tom Depouw’s loss of income, and the reasonable costs of necessary medical and hospital expenses incurred.
¶10 {¶ 26} “From these, you will determine what sum will compensate the plaintiff for her injury to date.” (Emphasis added.)
¶11 {¶ 27} In addition, the court submitted a special interrogatory to the jury pursuant to Civ.R. 49(B), which set out six forms of damages the jury could find that Megan Depouw suffered “as a direct result of the defendant’s negligence,” allowing a separate award for each. One of these was “(4) Loss of Thomas Depouw’s wages.” The jury entered $2,500.08 as the amount of its award on that claim. The total of all damages the jury awarded Megan Depouw was $29,825.08. Thomas Depouw was awarded $5,000 on his claim for loss of consortium.
¶12 {¶ 28} Civ.R. 9(G) states: “When items of special damage are claimed, they shall be specifically stated.” The Rules Advisory Committee Staff Notes define special damages as “a damage measurable by proof of market value or out of pocket expense.” The amount of the wages that Thomas Depouw lost while off work before the complaint was filed is a measurable damage.
¶13 {¶ 29} The purpose of special-pleading requirement Civ.R. 9(G) is to avoid surprising opposing counsel by requiring the pleader to provide specific notice of measurable losses at the pleading stage. Morrison v. Devore Trucking, Inc. (1980), 68 Ohio App.2d 140, 22 O.O.3d 223, 428 N.E.2d 438. We have held that where special damages are not specifically pleaded, it is improper to admit into *344 evidence matters dealing with their recovery. Dibert v. Ross Pattern & Foundry Dev. Co. (1957), 105 Ohio App. 264, 6 O.O.2d 73, 152 N.E.2d 369. We have also held that no recovery can be had for special damages not pleaded. House v. Moomaw (1964), 120 Ohio App. 23, 28 O.O.2d 211, 201 N.E.2d 66.
¶14 {¶ 30} Megan Depouw’s pleading that set out her general claim for “lost income” failed to comply with the special-pleading requirement of Civ.R. 9(G). The trial court therefore erred when it admitted evidence to prove Megan Depouw’s general claim for lost income. And defendant appears to have been surprised by Megan Depouw’s intention to offer evidence of Thomas Depouw’s lost wages to prove her lost-income claim. Defendant’s motion to exclude evidence of Thomas Depouw’s lost wages did not argue the defect in Megan Depouw’s pleading, however. Therefore, the particular error in admitting the evidence despite the Civ.R. 9(G) defect is waived. Defendant’s objection instead complained that the evidence was irrelevant to prove Megan Depouw’s claim because it was not evidence of a loss she suffered directly. The court overruled the objection, relying on the loss of “family income” it represented. The further issue is whether that view correctly stated the applicable law in the instructions and the interrogatory that the court provided to the jury concerning Megan Depouw’s claim for damages, to which defendant did object.
¶15 {¶ 31} A jury charge must correctly state the law applicable to the facts that the jury must decide. Marshall v. Gibson (1985), 19 Ohio St.3d 10, 19 OBR 8, 482 N.E.2d 583. Reversible error occurs if a jury charge is incomplete, misleading, or incorrect. Id. Likewise, an interrogatory that is based on an incorrect statement of the law should not be submitted. Wightman v. Consol. Rail Corp. (1994), 94 Ohio App.3d 389, 640 N.E.2d 1160.
¶16 {¶ 32} Compensatory damages are defined as those that measure actual loss and are allowed as amends therefor. Fantozzi v. Sandusky Cement Prod. (1992), 64 Ohio St.3d 601, 597 N.E.2d 474. They are intended to make the plaintiff whole for a loss resulting from a wrong committed by the defendant and accrue at the time of the injury. Digital & Analog Design Corp. v. N. Supply Co. (1992), 63 Ohio St.3d 657, 590 N.E.2d 737.
¶17 {¶ 33} “In general, the damages that may be recovered in a civil action are, in the absence of any statutory modification of the rule, such only as are the natural and probable consequences of a tortious act or breach of contract on the part of the defendant, for the wrongdoer, or party in default, is responsible only for the proximate, and not for the remote, consequences of his or her actions.” 30 Ohio Jurisprudence 3d (2005) Damages, Section 14.
¶18 {¶ 34} “The principle that damages may be recovered only for such injuries as flow directly from, and as the probable and natural result of, the wrong complained of necessarily excludes all those consequences of the act that are *345 remote and indirect, and all investigation of losses that are purely speculative, and denies an allowance of damages for injuries remotely consequential from a tortious wrong.” Id., Section 15.
¶19 {¶ 35} Persons who suffer bodily injury due to the negligence of a tortfeasor and are unable to engage in gainful employment as a result suffer a direct loss from that inability to work, which is compensable in money damages. The reasonable measure of damages, typically, is the value of wages the injured person did not earn.
¶20 {¶ 36} The theory of lost “family income” that the trial court adopted permitted Megan Depouw to recover damages for the entire amount of the wages Thomas Depouw did not earn. The majority approves that application on a holding that, because it was reasonable under the circumstances for Thomas Depouw to provide the care his wife needed, the jury could find that Megan Depouw suffered a loss because of his inability to work, which is compensable in the amount of wages her husband did not earn.
¶21 {¶ 37} That it was reasonable for Thomas Depouw to provide the care his wife needed might permit a finding that his resulting loss in the form of his inability to work was a natural consequence of the injury Megan Depouw suffered. However, that does not necessarily show that his loss was a probable consequence of her injury. More important, it does not at all make Thomas Depouw’s inability to work a loss that Megan Depouw suffered “as the direct result of the defendant’s negligence,” which was the jury’s finding.
¶22 {¶ 38} While it was unquestionably direct to Thomas Depouw, the wage earner who was unable to work, his inability to work was a loss that was only remote and indirect as to Megan Depouw. That is so regardless of any partial and collateral benefit she might expect from the wages he would otherwise have earned, which on this record is wholly speculative. Therefore, the wages Thomas Depouw did not earn were not compensable damages that could be awarded to Megan Depouw on her own claim for lost income.
¶23 {¶ 39} The majority finds support for the trial court’s “family income” theory in R.C. 3103.03(A), which imposes an interspousal duty of support. However, any right that section conferred on Megan Depouw to share in the benefits of Thomas Depouw’s wages is inchoate only. It does not make the entire amount of the wages he failed to earn or any specific portion thereof a loss that was whole and direct as to Megan Depouw. Stated otherwise, R.C. 3103.03(A) does not modify the rule of law that a loss must be direct to the party who is awarded damages to compensate for the loss.
¶24 {¶ 40} The majority nevertheless approves the trial court’s ruling that Megan Depouw may recover Thomas Depouw’s lost wages, adopting what it terms the *346 minority view. However, a review of the authorities cited offers no basis to find that a minority view exists that allows one plaintiff to recover for a loss of wages a coplaintiff suffered, even when they are married.
¶25 {¶ 41} Plaintiffs regularly recover for wages they lost while absent from work because of a personal injury caused by a tortfeasor’s negligence. They have also recovered for wages they lost while absent from work while caring for a spouse who suffered a personal injury due to a tortfeasor’s negligence. Injured parties have also recovered the reasonable value of nursing services that a family member gratuitously provided. The provider of such services has also recovered the reasonable value of such nursing care. However, in no instance has an injured coplaintiff been awarded damages to compensate her for a coplaintiffs inability to work while providing for the injured person’s care, as Megan Depouw was in the amount of the wages her husband failed to earn. Our holding to the contrary adopts a wholly novel and singular rule of the law of damages, an extension of the law that is unwise and unnecessary.
¶26 {¶ 42} Thomas Depouw might have pleaded his own claim for the wages that he failed to earn, but he didn’t. Had he pleaded the claim, the jury could have awarded him damages in the amount of the wages he was unable to earn while absent from work to care for his wife had the jury also found that his inability to work was a natural and probable consequence of his wife’s injuries. The jury might have found that, or it might have found instead that his decision to stay home from work was an unforeseen consequence of his wife’s injuries, and therefore not probable, even though it was reasonable. The trial court’s lost “family income” theory and the instructions and interrogatory it gave the jury assume that as a consequence of his wife’s injuries, Thomas Depouw’s loss was foreseeable, and therefore probable, improperly removing that issue of fact from the jury’s consideration. The assumption the court made is posited on a “but for” test, which has no application to damage awards.
¶27 {¶ 43} The trial court erred when it gave an instruction to the jury containing an incorrect statement of law, allowing the jury to consider evidence of a loss of her husband’s inability to work where that loss was only remote and indirect as to Megan Depouw, and when it submitted an interrogatory permitting the jury to then find that her husband’s lost wages are a measure of the damages to which Megan Depouw is entitled for a loss she suffered “as a direct result of defendant’s negligence.” I would sustain the error assigned and modify the judgment by deleting the amount of Thomas Depouw’s lost wages from the damages that were awarded to Megan Depouw.