LEANNA G. McNAY v. JAMIE P. HADLEY
Annotate this Case
Download PDF
RENDERED:
October 5, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002106-MR
LEANNA G. McNAY
APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 97-CI-00319
v.
JAMIE P. HADLEY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND TACKETT, JUDGES.
JOHNSON, JUDGE: Leanna G. McNay has appealed from a judgment of
the Russell Circuit Court entered on July 9, 1999, following a
jury verdict in an automobile accident case.
Having concluded
that any error in the jury instructions was harmless and that the
jury’s verdict was support by substantial evidence, we affirm.
On October 30, 1996, McNay was attempting to turn right
into a convenience store parking lot, when her vehicle was struck
from behind by a vehicle being drive by the appellee, Jamie P.
Hadley.
On October 17, 1997, McNay filed her complaint in
Russell Circuit Court, alleging that as a result of Hadley’s
negligent operation of his vehicle, she had sustained “severe and
permanent injury to her body.”
McNay sought damages for past and
future pain and suffering, past and future medical expenses,
diminished earning capacity, and for the cost of repairing her
automobile.
At trial, there was conflicting testimony regarding the
details of the accident, and in particular whether McNay had used
her turn signal as prescribed by KRS1 189.380(1)(2).
Expert
medical witnesses, who testified for Hadley, raised questions
regarding the extent of McNay’s physical injuries.
After hearing
the evidence, the jury determined that Hadley was 60% at fault in
causing the accident, and that McNay was 40% at fault.
The jury
awarded McNay only $37.00 in damages, which represented the cost
of repair to the muffler on her vehicle.
In the judgment entered
on July 9, 1999, the trial court offset 40% of that amount due to
the comparative negligence of McNay and entered a judgment for
$22.20.
On July 19, 1999, McNay filed her motion for a new
trial2 or judgment notwithstanding the verdict,3 which was denied
by the trial court on August 6, 1999.
This appeal followed.
McNay claims the damages awarded by the jury were
inadequate and that a new trial should have been granted.
Specifically, she argues:
1
Kentucky Revised Statutes.
2
Kentucky Rules of Civil Procedure (CR) 59.01.
3
CR 59.05.
-2-
The [j]ury’s failure to award medical
damages after finding [Hadley] 60% negligent
was the result of passion and prejudice
and/or disregard for the evidence of injury
presented by [McNay] at trial. When, in a
case such as this, the [j]ury allocates fault
to the Defendant as it has done, the trial
court has a duty to correct the failure to
award proportionate damages.
This argument totally ignores the fact that there was conflicting
medical evidence regarding whether McNay had sustained any
physical injury as a result of the accident; and the obvious rule
that such issues of fact must be left for the jury to decide.
In Gabbard v. Commonwealth,4 the former Court of
Appeals stated:
Appellant makes the further contention
that the verdict is not sustained by the
evidence, and was the result of passion
and prejudice. . . . Deciding whose
testimony shall be accepted as true is the
important function of the jury. There was
substantial evidence both ways, and on two
occasions juries have accepted the
prosecutrix' story. With substantial
evidence to support it, we cannot usurp the
jury's function and reach a different
conclusion on this question of fact.
Accordingly, if there was substantial evidence to support the
jury’s finding that McNay did not suffer a compensable physical
injury as a result of the accident, then those findings will not
be disturbed on appeal.
In his deposition, Dr. Phillip R. Aaron testified in
part:
Q.
4
I’m looking at this X-Ray report and it
says there is no evidence of
314 Ky. 240, 234 S.W.2d 752, 753 (1950).
-3-
disherniation and I do not see a
fracture or dislocation. [Dr. Jann
Aaron]5 said, there is a slight reversal
of the lordonic curve and this [is]
consistent with muscle spasms.
. . . .
A.
Q.
It doesn’t matter what the MRI says? It
doesn’t matter what the X-Ray says?
A.
No, because they were only describing
herniation or disk disease and she
doesn’t have that. Dr. Jann Aaron
showed that, too, but she has a muscle
spasm in her neck and it is --
Q.
She said it is a slight muscle spasm.
A.
She said it is a muscle spasm.
Q.
A muscle spasm in and of itself is not
that significant, is it, doctor?
A.
5
That’s why as I told you it is a very
significant finding what you just read
me, sir. Very, very significant. I’m
glad you read it to this jury because
that is all they need to know, is that
Dr. Jann Aaron, an imminent
neuroradiologist, probably the best in
the nation in Kentucky, probably one of
the four of five in the nation, with her
qualifications has said there is a
significant finding. . . . It doesn’t
matter about some of these other
experts.
Sir, a muscle spasm that shows up on an
MRI or on X-Ray is very significant. It
has to be significant enough to change
the whole curve of the spinal cord, the
lordonic curve that you [mentioned
earlier], it is very, very significant.
Dr. Phillip Aaron and Dr. Jann Aaron are not related.
-4-
While the above testimony indicated that McNay may have
indeed suffered an injury as a result of the accident, Dr. Paul
K. Forberg, by deposition, testified as follows:
Q.
Doctor, in evaluating and forming your
opinion, did you also view an X-Ray or
the results of an X-Ray taken on
10/31/96, [the day after the accident]?
A.
Yes.
Q.
And did you review an MRI or MRI report
of the cervical spine dated 2/20/97?
A.
Yes.
Q.
I’m going to hand both of those
[results] to you.
A.
They were both, I believe, interpreted
as normal by the radiologist.
. . . .
Q.
Doctor, what were the results of the
tests that you performed on Ms. McNay?
A.
Objectively, the examination was normal.
She did complain of pain with motion of
the cervical spine, but the examination
fell within normal variation,
objectively.
. . . .
Q.
Doctor, is there anything that I have
not gone over on which you would like to
make comment?
A.
[ ] The diagnostic tests, except for
some of the neurological or electrical
tests, have all been normal. The
clinical findings were normal. The
degree of pain over two and a half years
seems out of proportion to the physical
findings, and I think basically that
would be the major conclusions from my
examination.
-5-
Dr. Forberg further testified that the abnormal
neurological tests seemed “out of proportion” to what he would
expect from this kind of injury absent any other physical
findings, and that he did not think the pain McNay complained of
was related to the accident.
Finally, Dr. Phillip Aaron
testified that an X-Ray taken the day after the accident was
normal, an MRI taken approximately four months after the accident
was normal, and a nerve conduction test taken almost one year
after the accident was normal.
From the above, it is obvious that there was
substantial evidence in support of the jury’s decision not to
award any damages for medical expenses which McNay claimed were
related to her alleged physical injuries.
Although there was
testimony indicating a possible physical injury, there was also
substantial testimony to the contrary.
It was within the
province of the jury to determine which testimony to believe.
When there is substantial evidence to support the verdict, it
must be affirmed.
McNay also claims the trial court erred in its
instructions to the jury.
She argues in part:
Review of the trial video shows that in
the reading of Instruction No. IV(E), the
Court stated:
Not to turn her vehicle automobile
from a direct course upon U.S.
Highway 127 unless and until such
movement could be made with
reasonable safety, and if
-6-
Plaintiff’s6 automobile was
approaching near enough to be
affected by such movement, not to
turn to the right without first
giving a signal. . . [emphasis
added in original].
. . . .
The instruction given is a Plaintiff’s
instruction and is proper when the Plaintiff
is the party in the rear and suing the
turning party. As such, it is not relevant
and was improper to this action where the
Plaintiff was the driver of the car which was
hit from the rear by the Defendant. This
instruction would only have been appropriate
had Jamie Hadley been the Plaintiff, which,
of course, he was not.
McNay objected to this instruction at trial,7 and argued that it
had the effect of placing a greater duty on her as the plaintiff
than on the defendant Hadley.
In this appeal, she claims the
mistake made by the trial judge in reading the jury instruction
prejudiced the jury against her.
We fail to see how this minor
mistake, which was timely corrected, resulted in any harmful
error.
In her final argument, McNay states, “[t]he jury’s
award of $37 damages illustrates confusion, and/or passion and
prejudice by the jury.”
She also claims that, “[i]t is clear
that the jury disregarded its own apportionment of fault in the
6
While the trial judge stated, “Plaintiff’s automobile,” the
written jury instruction was corrected to properly read,
“Defendant’s automobile.”
7
Appellant stated in her brief that this alleged error was
preserved for review, but failed to show this Court where it had
been preserved with citations to the record. See Surber v.
Wallace, Ky.App., 831 S.W.2d 918, 920 (1992).
-7-
allocation of damages, and Appellant is entitled to reversal.”
We do not believe this third argument adds anything to McNay’s
appeal that has not already been addressed in the first argument
concerning the adequacy of damages.
For these reasons, the judgment of the Russell Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert L. Bertram
Jamestown, KY
Daniel G. Yeast
Somerset,KY
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
