WAL-MART STORES, INC. v. WANDA SMITHHISLER
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RENDERED: July 16, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-002330-MR
WAL-MART STORES, INC.
v.
APPELLANT/CROSS-APPELLEE
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 97-CI-000099
WANDA SMITHHISLER
AND
NO.
WANDA SMITHHISLER
v.
APPELLEE/CROSS-APPELLANT
1997-CA-002389-MR
APPELLANT/CROSS-APPELLEE
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 97-CI-000099
WAL-MART STORES, INC.
APPELLEE/CROSS-APPELLANT
OPINION
VACATING IN PART AND AFFIRMING IN PART
** ** ** ** **
BEFORE: HUDDLESTON, McANULTY, and SCHRODER, JUDGES.
McANULTY, JUDGE: This is an appeal from a jury verdict in an
unlawful detention and violation of civil rights action awarding
"0" in compensatory damages and $1,000 in punitive damages.
Appellant Wal-Mart Stores, Inc. ("Wal-Mart") asserts that the
punitive damages award cannot stand since the jury failed to
award compensatory damages.
Appellee Wanda Smithhisler
("Smithhisler") cross-appeals the failure of the jury to award
compensatory damages and seeks a new trial on the issue of
damages.
We have examined the record in this matter and conclude
that the verdict awarding punitive damages must be vacated and
the motion for a new trial was properly denied.
On or about January 27, 1996, Smithhisler was shopping
at a Wal-Mart store in Bowling Green, Kentucky.
Upon completing
her purchases, she was detained by an unidentified security guard
a few feet from the checkout lane.
The guard asked to see
Smithhisler’s receipt and searched her bags.
The period of
detention did not exceed five minutes.1
During this time, Smithhisler was accompanied by her
son and her boyfriend’s daughter.
immediate area.
No other customers were in the
There was no evidence that the incident was
communicated to any member of the community save Smithhisler’s
co-employees who were informed by her or those who read of the
incident in the newspaper after the filing of the lawsuit.
Smithhisler did not report the incident to a Wal-Mart
manager that night but waited approximately 10 days later when
she encountered a problem with a merchandise return at the same
store.
About two weeks after the initial incident, her
boyfriend, a Bowling Green City police officer, informed her that
he believed her civil rights had been violated.
1
On January 24,
In her deposition, Smithhisler testified that the
detention lasted approximately 15 seconds. However, at trial she
testified that it lasted three to five minutes.
-2-
1997, Smithhisler filed a complaint alleging unlawful detention
and a violation of her civil rights.
The trial court directed a verdict against appellant on
liability and instructed the jury on damages as follows:2
INSTRUCTION NO. 2
You will determine from the evidence the sum or sums
of money that will fairly compensate Wanda Smithhisler
for the damage that she sustained by reason of the
unreasonable detention by the Defendant.
(a)
Humiliation and embarrassment,
(not to exceed $50,000)
$______
(b)
Mental pain and suffering she has
suffered as a result of Defendant’s
conduct toward her.
(not to exceed $50,000)
$______
TOTAL
$______
INSTRUCTION NO. 3
If you find for Wanda Smithhisler and award her
a sum or sums in damages under Instruction No. [2],
and if you are further satisfied from the evidence
that Defendant acted with oppression or malice, you
may award punitive damages against Defendant in addition
to damages under Instruction No. [2]. Punitive damages
are permitted by law to punish a defendant for their
conduct and to deter such conduct in the future.
As used in this instruction:
"Oppression" means conduct that was specifically intended
by Defendant to subject Wanda Smithhisler to cruel and
unjust hardship.
"Malice" means conduct that was specifically intended by
Defendant to cause tangible or intangible [in]jury to
Wanda Smithhisler OR conduct that was carried out by
Defendant with both a flagrant indifference to Wanda
Smithhisler’s rights.
If you award punitive damages, you will state the amount
separately from the sum or sums awarded under Instruction
No. 2.
$______
The jury awarded "0" compensatory damages under Instruction No. 2
but awarded Smithhisler $1,000 in punitive damages.
Wal-Mart
filed post-trial motions to alter and/or amend the judgment and
2
The trial court’s instructions were not included in the
record on appeal, however the Trial Order and Judgment set out
the court’s instructions.
-3-
for judgment notwithstanding the verdict.
Smithhisler filed
motions for a new trial and to vacate, alter, or amend the
judgment.
The trial court denied the motions of both parties.
This appeal and cross-appeal followed.
The first issue before this Court is whether punitive
damages may be awarded if a jury has returned a verdict of "0"
compensatory damages.
KRS 411.184(1)(f) defines punitive damages
as "damages, other than compensatory and nominal damages, awarded
against a person to punish and to discourage him and others from
similar conduct in the future."
The plaintiff must prove
oppression, fraud, or malice on the part of the defendant in
order to recover these damages which extend past the actual
damages sustained.
Harrod v. Fraley, Ky., 289 S.W.2d 203 (1956).
Appellant asserts that the trial court erred in
upholding the award of punitive damages in the absence of
compensatory damages and relies on Estep v. Werner, Ky., 780
S.W.2d 604 (1989).
Estep stated that "[t]he rule of law
recognized in this state is that, ‘if the plaintiff has suffered
an injury for which compensatory damages might be awarded,... he
may in a proper case recover punitive damages.’
Risen, Ky. App., 598 S.W.2d 474, 476 (1980)."
Lawrence v.
However, the trial
court rejected Appellant’s interpretation of Estep and read the
reference to Lawrence to only require "a factual allegation of
actual compensatory damages" to exist. The trial court ruled that
Estep did not require an actual award of compensatory damages in
order to recover punitive damages.
-4-
We disagree.
The Kentucky Supreme Court explicitly stated in Estep
that the "[m]ovant failed to demonstrate that he suffered any
injury.
Thus, the award of punitive damages was improper."
Estep 780 S.W.2d at 607.
This decision supports the position of
Appellant that a plaintiff must both plead and prove a claim for
compensatory damages.
In further support, the Kentucky Supreme
Court agreed with this Court in Ky. Farm Bureau v. Troxell, Ky.,
959 S.W.2d 82, 85 (1997), that "punitive damages cannot be
supported absent an award of compensatory damages."
Current
case law definitively supports the proposition that an award of
compensatory damages is necessary for punitive damages to be
upheld.
We therefore vacate the jury verdict awarding punitive
damages based on the absence of compensatory damages.
The second issue is whether the trial court erred in
denying the Appellee’s motion for a new trial on the amount of
damages.
Appellee argues that the award of damages was
inadequate and the jury verdict was rendered under the influence
of prejudice and passion and in disregard of evidence presented
during trial.
CR 59.01(d).
It is the duty of the trial court to
decide whether the factors under CR 59.01(d) influenced the
verdict and therefore a motion for a new trial should be granted.
Cooper v. Fultz, Ky., 812 S.W.2d 497, 501 (1991).
It is the
function of this Court to determine whether the trial court’s
decision to deny a new trial was clearly erroneous.
Id.
The
Kentucky Supreme Court has warned that overturning a trial
court’s decision "should be exercised by this Court with great
-5-
caution and only in exceptional cases."
Aker v. Smith, Ky., 290
S.W.2d 496, 498 (1956).
In this case, the trial court concluded that the award
of "0" compensatory damages did not strike the court as so
inadequate that it was a result of passion, prejudice, or a
disregard of the evidence presented.
The trial court disagreed
with Appellee that a directed verdict on liability guarantees an
award of damages.
The court decided that the evidence presented
at trial could lead a jury to properly conclude that “0"
compensatory damages was appropriate.
We agree with the trial
court.
An award of "0" compensatory damages is not an
incomplete or irregular verdict.
774 S.W.2d 465, 466 (1989).
Spalding v. Shinkle, Ky.App.,
See also Cooper, 812 S.W.2d at 501.
The jury did not leave the spaces blank, rendering the verdict
incomplete, but made a conscious decision to not award
compensatory damages.
See Spalding, 774 S.W.2d at 466
(explaining that the “0" compensatory damage “verdict was no more
incomplete if the jury had inserted $1 for pain and suffering.").
There is no automatic requirement of damages after a directed
verdict on liability if the jury does not believe an injury
exists.
Carlson v. McElroy, Ky. App., 584 S.W.2d 754, 756
(1979).
See also Smith v, McMillan, Ky., 841 S.W.2d 172, 174
(1992).
The absence of compensatory damages does not constitute
an irregular verdict.
There is sufficient evidence on the record to support
the jury’s decision not to award compensatory damages.
-6-
The
period of detention did not exceed five minutes and may have only
lasted 15 seconds.
There were no physical threats, accusations
of theft, nor raised voices.
Appellee did not feel compelled to
report the incident until ten days later.
There was no evidence
that her job was in jeopardy nor that any customers overheard the
incident.
Based on these facts, it was reasonable for the jury
to decide that no recoverable injury resulted from the unlawful
detention.
The jury does not have to accept the plaintiff’s
testimony concerning her humiliation and embarrassment or mental
pain and suffering as the truth.
See Carlson, 584 S.W.2d at 754.
See also Davidson v. Vogler, Ky., 507 S.W.2d 160 (1974);
Thompson v. Spears, Ky., 458 S.W.2d 1 (1970).
The trial court’s
decision to deny Appellee’s motion for a new trial was not an
abuse of its discretion.
We affirm the trial court’s denial of Appellee’s motion
for a new trial on damages.
For the foregoing reasons we vacate the trial court’s
judgment awarding punitive damages and affirm the denial of
Appellee/Cross-Appellant’s motion for a new trial.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE WAL-MART STORES,
INC.:
BRIEF FOR APPELLEE/CROSSAPPELLANT WANDA SMITHHISLER:
Matthew J. Baker
Bowling Green, KY
David F. Broderick
Kenneth P. O’Brien
Bowling Green, KY
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