¶1specially concurring.
¶2I believe a cautionary comment is desirable in connection with the holding that “loss of enjoyment” is a separate element of damages.
¶3Although there is a split of authority on whether or not “loss of enjoyment” can be a separate element of damages, I agree that it can be. However, there is obvious danger that an award will include double damages when “pain and suffering” or “disability” (I use the term only as it applies to inability to earn a livelihood) or both are also present in a case in which “loss of enjoyment” may be an element of damages. In such case, “loss of enjoyment” may be incident only to one of the other two elements and, therefore, be not properly subject to separate treatment. But it can also exist beyond the “pain and suffering” or “disability” and thus be entitled to separate treatment.
¶4In a jury trial, the court should carefully instruct the jury as to the definitions of the separate elements of damages and to their application to the facts of the case so as to avoid an award of double damages.
¶5In this case, tried to the court, the court is presumed to know the law, including the distinction between such elements of damages. It can be presumed to have properly applied such law in awarding damages without duplication, whether labeled “pain and suffering” or “loss of enjoyment”.