DORTHA MORRISON v. WAL-MART STORES, INC.
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RENDERED:
AUGUST 10, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001479-MR
DORTHA MORRISON
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET COLEMAN, JUDGE
ACTION NO. 97-CI-01778
v.
WAL-MART STORES, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND McANULTY, JUDGES.
GUIDUGLI, JUDGE.
Dortha Mae Morrison (Morrison) appeals from a
jury verdict which awarded her $6,175.00 in damages for injuries
she received as a result of a slip and fall at the Elizabethtown
Wal-Mart.
She argues that the trial court erred by admitting
evidence of her prior medical history which she alleges was
irrelevant and inadmissable pursuant to Kentucky Rules of
Evidence (KRE) 402.
We have found no error and, hence, affirm.
Morrison and her friend, Troy Logsdon, went shopping at
the Elizabethtown Wal-Mart on May 19, 1997.
as they entered the store.
It was raining hard
After shopping, Morrison proceeded
through the checkout area to pay for her purchases.
As she began
to walk out of the store, she slipped and fell, landing on her
back in the customer service area.
Morrison alleged that she
slipped and fell due to the accumulation of water on the floor
caused by water dripping off rain ponchos being worn inside by
Wal-Mart employees, a practice she claimed was against store
policy.
Wal-Mart denied that its employees were wearing rain
ponchos inside the store.
Although Morrison left the store with her friend,
according to her testimony, once home she began to suffer severe
back pain.
hammer.”
She stated it felt “like someone hit me with a sledge
She began treatment with Dr. Rolando Cheng (Dr. Cheng),
an orthopedic surgeon.
Dr. Cheng indicated that Morrison had
suffered an acute compression fracture in her spine.
At the time
of trial, Morrison had been treated conservatively, had required
no surgery, and had seen Dr. Cheng only occasionally since the
fall.
On May 3, 2000, prior to the start of the jury trial,
Morrison filed motions in limine requesting the trial court to
exclude and prohibit all testimony, evidence, statements and
remarks concerning the following: (1) any collateral source
payments; (2) her 1970 back surgery; (3) her osteoporosis; (4)
her 1996 ankle fracture; (5) her past heart surgeries; and (6)
any mid to lower back pain allegedly experienced dating back to
1993.
The motions relating to Morrison’s past medical history
were denied and counsel for Wal-Mart was permitted to question
her regarding her prior medical treatment and statements she made
to other physicians concerning her back problems and physical
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limitations.
Following a three-day trial, the jury returned a
verdict in Morrison’s favor and awarded her $2,356 for past
medical expenses and $10,000 for pain and suffering, but
apportioned fault at 50% - 50%.
Thereafter, Morrison’s motion to
vacate and/or amend the judgment entered May 17, 2000, was denied
on June 8, 2000.
This appeal followed.
On appeal, Morrison continues her contention that
evidence and testimony concerning her past medical history was
irrelevant and inadmissable pursuant to KRE 402 and Turner
Construction Co., et al. v. D. B. E. Garrett, et al., Ky., 310
S.W.2d 786 (1958).
Wal-Mart counters by arguing that her medical
history was relevant, probative evidence relating to causation
and the nature and extent of Morrison’s damages.
In Turner, the
Court found that the trial court had not abused its discretion in
excluding medical testimony which it deemed speculative as to
contributing to the present physical condition.
Relying on
Turner, Morrison argues that there must be some connection or
relationship between the prior injury or illness and the injury
which Morrison is complaining of in this action.
Morrison
further claims that her treating orthopaedic surgeon, Dr. Cheng,
stated there was no connection between her past medical history
and the injury she suffered as a result of the slip and fall at
Wal-Mart, and thus, none of her prior medical history was
relevant to this action.
We disagree.
KRE 402 states:
All relevant evidence is admissible, except
as otherwise provided by the Constitutions of
the United States and the Commonwealth of
Kentucky, by Acts of the General Assembly of
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the Commonwealth of Kentucky, by these rules,
or by other rules adopted by the Supreme
Court of Kentucky. Evidence which is not
relevant is not admissible.
The issue on appeal is whether or not the trial court abused its
discretion in allowing evidence of Morrison’s past medical
history.
We believe it did not in that the testimony was
relevant as to both causation and damages.
In this case,
Morrison claimed that when she fell at Wal-Mart she experienced
pain like never felt before and that she had throbbing pain like
she had been “hit with a sledge hammer.”
Later, she testified
that she could not stand the pain and she could not do anything
like she used to (such as crocheting, gardening, needlepoint,
house work, etc.).
Finally, she stated, “I’m miserable and my
life is just ruined.”
However, her testimony was inconsistent
with the medical records.
Several times Morrison denied having
had back pain or requesting pain medication for her back, yet the
medical records indicated otherwise.
The testimony the trial
court permitted was both relevant and probative to inform the
jury that Morrison had suffered other injuries and illnesses
which directly affected her physical condition on the day of the
fall and her ability to function and her quality of life both
prior to and after the incident at Wal-Mart.
Relevant evidence is evidence which tends to establish
or disprove an issue in litigation.
Inc., Ky., 413 S.W.2d 891 (1967).
O’Brien v. Massey-Ferguson,
What constitutes relevant
evidence was addressed in Partin v. Commonwealth, Ky., 918 S.W.2d
219 (1996), as follows:
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However, the admissibility of the above
evidence must further be examined pursuant to
the guidelines outlined in KRE 401 and KRE
403. Relevant evidence, defined in KRE 401,
“means evidence having any tendency to make
the existence of any fact that is of
consequence to the determination of the
action more probable or less probable than it
would be without the evidence.” A decision
by the trial court will not be disturbed in
the absence of an abuse of discretion. KRE
403 provides as follows:
“Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger
of undue prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, or
needless presentation of cumulative
evidence.”
According to Lawson, at 2.10
The following judgments are required by the
equation formulated in KRE 403:
(i)
assessment of the probative
worth of the evidence whose
exclusion is sought;
(ii)
assessment of the probable
impact of specified
undesirable consequences
likely to flow from its
admission (i.e., “undue
prejudice, confusion of the
issues, or misleading the
jury, ... undue delay, or
needless presentation of
cumulative evidence”); and
(iii)
a determination of whether the
produce of the second judgment
(harmful effects from
admission) exceeds the product
of the first judgment
(probative worth of evidence.)
Id. at 56.
Partin, Id. at 222.
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A thorough review of the testimony and evidence
permitted by the trial court in this case does not convince us
that the trial court erred.
The evidence was both probative and
relevant and the trial court did not abuse its discretion in
admitting Morrison’s prior medical history.
Based upon the
foregoing reasoning, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Liddell Vaughn
Louisville, KY
Christopher R. Cashen
Tera M. Rehmel
Louisville, KY
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