Shirley Justice v. Earlene Thomas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

SHIRLEY JUSTICE,

APPELLANT

V.

EARLENE THOMAS,

APPELLEE

CA04-493

January 26, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

(NO. CIV02-9172),

HONORABLE WILLARD PROCTOR, JR., JUDGE

AFFIRMED

Sam Bird, Judge

Shirley Justice appeals from the trial court's denial of her motion for a new trial following a jury's decision to award her no damages in a negligence suit against appellee Earlene Thomas. Justice contends that the trial court erred in denying her motion because the jury's award was not supported by substantial evidence. We disagree and affirm.

On March 16, 2002, Justice was driving east on McCain Boulevard in North Little Rock when her Toyota Camry was struck by a Ford Explorer driven by Thomas. Justice testified that Thomas made a sudden turn which "popped" Justice's car and knocked it into a gas station parking lot. Justice said that, after the collision, she believed that she was physically okay. She also said that she told Thomas's husband that she thought she was okay. Justice stated that she went to work after the accident, but that her physical condition

changed. According to her testimony, she went to work one day and began "aching and hurting all over," with a "little dull pain" at first. She said that later in the day, she was experiencing so much pain that she went home and called her family doctor.

Justice's doctor, Dr. Jack Somers, took X-rays and examined Justice. He prescribed medication for her and sent her to physical therapy. Justice testified that Dr. Somers had a "don't care-ish attitude" and that he was not responsive to her needs, so a co-worker referred her to Dr. John Dodson. According to Justice, Dr. Dodson examined her, gave her medicine, and placed her in physical therapy. Dr. Dodson also ordered her to stay home from work. Justice testified that she returned to work a month later.

During her testimony, Justice agreed that her job of cooking for hundreds of people was "fairly difficult work." Justice further testified that, before the accident, she enjoyed fishing, walking, traveling, and gardening, but that her injuries affected these activities. According to her testimony, she has returned to her pre-wreck activities.

When questioned about the damage to her car, Justice said that the body shop had installed a new headlight; that the door had been repaired; that the entire wheel was cut all the way around; and that there was paint transferred from Thomas's Explorer to the front door of her vehicle. Justice also said that the mirror was knocked loose and that there was damage done to the door, but that this damage was not clearly visible in pictures because it was "kind of a scrape."

Justice testified that the amount of damage to her vehicle was $1,985.70, which had been paid. She said that she wanted compensation for her medical bills totaling $4,417.43, for lost income in the amount of $2,729.50, and for pain and suffering.

Dr. Dodson's videotaped deposition was played for the jury during the trial. He said that he first saw Justice on March 27, 2002, eleven days after the accident. According to his deposition testimony, Justice told Dr. Dodson that she did not experience any significant pain until two or three days after the accident. Justice then complained of pain in her neck with severe headaches, with the pain sometimes radiating to her arm. She also experienced some "associated numbness" in her arm. In addition, she complained of lower back pain, although this was not included in Dr. Dodson's initial report. Dr. Dodson also testified that Justice's job required heavy lifting and repetitive bending, and "because of these activities she experienced increasing pain in these areas and could not continue working."

Dr. Dodson said that he felt muscle spasms in Justice's neck and back. He also testified that Justice's injuries were "musculoligamentous" and he "felt that she had [a] musculoligamentous sprain of her neck and back, and that she was experiencing a muscle traction headache." He stated that he prescribed medication and placed Justice on physical therapy, and "took her off work." According to Dr. Dodson, Justice "returned to a full level of activity without any pain or complaints" and had an "essentially normal" physical exam on May 21, 2002, at which time he released her from his care with instructions to continue her exercise for three to four weeks.

Justice's friends Arthur Rhodes and Chezaline Ford also testified at trial. Rhodes said that he was one of Justice's "best friends" and that he could tell she was in pain from the way she walked and turned her head. He also said that, after the accident, she required assistance with some activities that she used to be able to perform on her own and that it took her longer to do them.

Ford, one of Justice's co-workers, said that she and Justice walked together "occasionally" before the accident but that they "have not gotten back to walking" after the accident. She also said that she saw Justice about four days after the wreck, and that Justice requested her assistance with household activities at that time. After two or three months, Ford said, Justice "seemed to get back in the swing of things."

Earlene Thomas then testified that, on the night of the accident, she was driving her Ford Explorer when she attempted to turn right into the Texaco service station so that she could get a drink. She said that she did not see Justice and that she "bumped her." Thomas said that she did not knock Justice over into the parking lot, and that it was "just a bump." According to Thomas, the speed limit in the area was thirty-five miles per hour and, prior to the accident, she started slowing down. Thomas said that when the accident occurred, she felt the impact "a little bit" but "not much." She also said that neither she nor her husband were injured in the accident.

On cross-examination, Thomas admitted liability and stated that she had no opinion as to whether Justice was injured or not. According to Thomas, "[T]hat opinion should come from a doctor."

The jury found for Justice but awarded no damages. Justice moved for a new trial pursuant to Rule 59(a) of the Arkansas Rules of Civil Procedure, claiming (1) that the verdict was contrary to the preponderance of the evidence and that the jury erred in assessing the amount of damages that she should have received, and (2) that the verdict was grossly inadequate because compensatory damages were clearly warranted. The trial judge denied the motion, stating as follows:

I don't necessarily agree with the jury's verdict in this case. I mean, I don't understand their verdict, but the standard I have to look to is is [sic] under Rule 59 ... in this particular case the verdict is supported by the preponderance of the evidence and whether a fair juror might have reasonably awarded that amount in this situation. And there are varying factors that the Court has to look at.

The main factor, though, is although there was an admission of liability - and it does appear that the Court has said even when there is admission of liability, that is still not enough to indicate that there has got to be an award of damages, and I am a little leary of stepping out too far and suggesting that this is one of those cases - I mean, I agree that there appeared to be credible evidence of damages, even proof by at least a preponderance of the evidence. It just seems to be a situation where the jury didn't agree, and I don't want to make a practice of necessarily imposing my views upon juries by setting aside verdicts.... I will deny the motion....

When a motion for a new trial is made on the ground that the verdict was clearly against the preponderance of the evidence, the standard of review is whether substantial evidence supports the verdict. Machost v. Simkins, ___ Ark. App. ___, ___ S.W.3d ___(April 14, 2004) (citing Depew v. Jackson, 330 Ark. 733, 957 S.W.2d 177 (1997)). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or another, beyond mere speculation or conjecture. Machost v. Simkins, supra. The verdict is given "the benefit of all reasonable inferences permissible in accordance with the proof." Id.

The Arkansas Supreme Court has held that an admission of fault by a defendant does not automatically entitle the plaintiff to recover damages. See James v. Bill C. Harris Const. Co., Inc., 297 Ark. 435, 763 S.W.2d 640 (1989) (citing Thigpen v. Polite, 289 Ark. 514, 712 S.W.2d 910 (1986)). Damages must be proven even though fault is admitted. James v. Bill C. Harris Const. Co., Inc., supra.

In this case, Justice contends that the trial judge erred in denying her motion for a new trial because the jury's decision to award no damages was not supported by substantial evidence. Specifically, Justice argues that the preponderance of the evidence presented at trial established that she was injured in the accident, that her medical care was reasonable and necessary, that she suffered lost wages as a result of the accident, and that she was entitled to damages for pain and suffering. To support this argument, Justice cites Machost v. Simkins, supra, in which this court reversed the trial court's denial of a motion for new trial where the treating physician testified that the injuries sustained by the plaintiff were consistent with the nature of the accident and there was no evidence that the treatment expenses could be attributed to injuries other than those suffered in the accident.

We believe that Machost is distinguishable from the case at bar. In Machost, the court clearly considered the additional fact that the appellee "explicitly and repeatedly conceded to the jury both the reasonableness and necessity of the medical expenses, and in fact advised the jury that Machost's medical bills were not in dispute." Machost v. Simkins, slip op. at 12. That is not the case here.

In this case, the evidence shows minimal damage to Justice's vehicle and shows that Justice did not believe she was injured at the accident scene. Justice also went to work the morning after the accident; it was not until a few days later that she began experiencing pain and sought medical treatment. Although Thomas admitted liability for the accident, she described it as being "just a bump" to Justice's vehicle. In addition, Justice appeared to make a full recovery within two months following the accident.

On appeal, Justice points to her own testimony, together with the testimony of Dr. Dodson and her friends Arthur Rhodes and Chezaline Ford, to support her argument that the jury's verdict was not supported by substantial evidence. Moreover, Justice asserts that Thomas presented no testimony to contradict Justice's evidence. The jury, however, is the sole judge of the credibility of the witnesses and of the weight and value of the evidence, and may believe or disbelieve the testimony of one or all of the plaintiff's witnesses, even though the evidence is uncontradicted and unimpeached. See Potlatch Corp. v. Mo. Pac. R.R. Co., 321 Ark. 314, 902 S.W.2d 217 (1995) (citations omitted). As a result, the Arkansas Supreme Court has said that "no matter how strong the evidence of the party having the burden of proof in a negligence case, `that party is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.'" Id. at 318, 902 S.W.2d at 220. (citations omitted).

Here, Justice had the burden of proof, and the jury found that she did not meet that burden. From the evidence presented, we believe it was reasonable for the jury to infer that Justice did not sustain an injury as the result of the accident on March 16, 2002. If the jury could conclude that no injury resulted from the accident, it would naturally follow that thejury could conclude that Justice was not entitled to damages for medical expenses, lost wages, and pain and suffering relating to the accident. Because there was substantial evidence to support the jury's verdict in this case, we affirm.

Affirmed.

Hart and Roaf, JJ., agree.