Builder's Transp., Inc. v. Claussen

BUILDER'S TRANSPORT, INC. and Robert Lawrence
Claussen v. Lincoln WILSON

95-899                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1996


1.   Damages -- claim award excessive -- factors on review. -- When
     an award of damages is alleged on appeal to be excessive, the
     appellate court reviews the proof and all reasonable
     inferences most favorably to the appellee and determines
     whether the verdict is so great as to shock the appellate
     court's conscience or demonstrate passion or prejudice on the
     part of the trier of fact; in determining whether the amount
     of damages is so great as to shock the conscience, the
     appellate court considers such elements as past and future
     medical expenses, permanent injury, loss of earning capacity,
     scars resulting in disfigurement, and pain, suffering, and
     mental anguish; the determination is made on a case-by-case
     basis; a jury has much discretion in awarding damages in
     personal injury cases.

2.   Damages -- future expenses do not require the same degree of
     certainty as past medical expenses -- future medical expenses
     properly considered. -- Future medical expenses do not require
     the same degree of certainty as past medical expenses; where
     the appellee presented evidence of his past medical expenses,
     including a medical expense summary, future medical expenses
     were an appropriate element of damages for consideration; it
     is not speculative or conjectural to calculate future medical
     expenses where there is a history of medical expenses that
     have accrued as of the date of trial, particularly where there
     is also a degree of medical certainty as to the need for
     future medication.

3.   Damages -- sufficient proof of injury and potential for future
     medical expenses -- damage award did not shock the conscience.
     -- Where appellee presented proof of permanency of his injury
     through his own testimony and that of his physicians, he
     presented ample proof of pain and suffering, and also
     presented ample proof of mental anguish as a result of the
     injuries he suffered in the collision, the proof supported the
     conclusion that, not only did appellee suffer a permanent
     injury which caused him pain, discomfort, and inability to use
     his left arm properly, but it also drastically changed his
     life; the verdict of $245,000 was not so great as to shock the
     conscience of the court or to demonstrate passion or prejudice
     on the part of the jury.


     Appeal from Clark Circuit Court; W.H. "Dub" Arnold, Judge;
affirmed.
     Arnold, Grobmyer & Haley, by: Jacob Sharp, Jr. and  David H.
Pennington, for appellant.
     Wright, Chaney, Berry & Daniel. P.A, by: William G. Wright,
for appellee. 

     Robert H. Dudley, Justice.





BUILDER'S TRANSPORT, INC. AND
ROBERT LAWRENCE CLAUSSEN,
                    APPELLANT,

V.

LINCOLN WILSON,
                    APPELLEE.



95-899


APPEAL FROM THE CLARK COUNTY
CIRCUIT COURT,
NO. 94-75,
HON. W.H. "DUB" ARNOLD, JUDGE,




AFFIRMED.
     Lincoln Wilson was injured when his car was struck by a
tractor-trailer owned by Builders Transport, Inc., and driven by
Robert Claussen.  Wilson filed suit against Builders and Claussen,
and the jury returned a verdict of $245,000.  Judgment was entered
for the amount of the verdict.  Builders and Claussen appeal and
contend that the award is excessive.  We affirm the judgment.    
     When an award of damages is alleged on appeal to be excessive,
the appellate court reviews the proof and all reasonable inferences
most favorably to the appellee and determines whether the verdict
is so great as to shock the appellate court's conscience or
demonstrate passion or prejudice on the part of the trier of fact. 
Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992).  In
determining whether the amount of damages is so great as to shock
the conscience, the appellate court considers such elements as past
and future medical expenses, permanent injury, loss of earning
capacity, scars resulting in disfigurement, and pain, suffering,
and mental anguish.  Wheeler v. Bennett, 312 Ark. 411, 422, 849 S.W.2d 952, 958 (1993).  The determination is made on a case-by-
case basis as "precedents are of scant value in appeals of this
kind."  Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453, 457
(1983) (citation omitted); Mustang Electrical Servs. v. Nipper, 272
Ark. 263, 613 S.W.2d 397 (1981).  "A jury has much discretion in
awarding damages in personal injury cases."  Bill Davis Trucking,
Inc. v. Prysock, 301 Ark. 387, 391, 784 S.W.2d 755, 757 (1990)
(citations omitted).
     In the case at bar, Wilson suffered injuries to his back and
neck, a torn rotator cuff in his left shoulder, and cuts and
bruises to his face, head, right shoulder, arms, and legs.  In the
months following the accident, he was treated for continued and
increasing pain and tenderness in his left shoulder by Dr. Mark
Jansen, a general practioner.  Dr. Jansen subsequently recommended
that Wilson go to an orthopedic surgeon for further observation. 
He did so, and magnetic resonance imaging revealed that his left
rotator cuff was torn.  
     Dr. Scott Bowen, an orthopedic surgeon, performed surgery to
repair the torn rotator cuff.  Dr. Bowen described the surgery as
requiring a three-to-four inch incision into the front of the
shoulder.  This procedure splits the muscle to reveal the
underlying deeper tissues.  Dr. Bowen testified:
     [T]he bursal covering is opened and the tendon is then
     seen.  And it is a deep structure, and it was torn and
     retracted.  It required a fair amount of mobilization of
     the tissues and advancing the tissues down, forming a
     little bony trough and bringing structures out through
     the bone, so it's a fairly extensive procedure.
Dr. Bowen described appellee's tear as being "quite large" and "a
broad, retracted tear."  He testified that "the tissue was actually
pulled away" and required "immobilizing or exposing more of this
tissue and moving it to advance it out to where it can be
repaired."  He testified that following this type of surgery, the
arm is placed in a pillow-type splint for approximately three
weeks.  The patient then undergoes therapy that progresses through
three months following surgery.  
     Dr. Bowen testified that Wilson will have some permanent loss
of normal function.  He rated the impairment to Wilson's left arm
at eight percent (8%), which translates into a five percent (5%)
impairment to the body as a whole.  He testified that Wilson might
need medication or injections in the future to control pain and
problems with his left shoulder.  He testified that, on rare
occasions, an individual suffers a re-tear and will require a
second surgery.  Finally, he expressed the opinion, within a
reasonable degree of medical certainty, that Wilson's torn rotator
cuff was caused by the collision.  
     Approximately eight months after the surgery, Wilson returned
to Dr. Jansen and stated that he had continued pain in his left
shoulder.  A clinical test performed at that time indicated that
the rotator cuff was torn.  Dr. Jansen recommended continued
medication, rest, and modification of activities.      
     Wilson had contracted polio as an infant.  Throughout his
life, the disabilities resulting from polio had affected the use of
both of his feet and his right arm.  As a result, he relied heavily
on his left arm in going about his daily activities.  He used his
left arm to get out of chairs and to pull himself up stairways.  He
testified that his left arm was his life.  
     Testimony established that Wilson had been self-sufficient
before the accident.  He lived alone, drove a car, did his own
housework, worked in his yard, and enjoyed various other
activities, including singing at senior adult dances.  He was
fifty-seven years old at the time of the accident.
     After the accident, Wilson suffered increasing pain and
inability to use his left arm, the arm on which he relied. 
Following the surgery to repair the torn rotator cuff, he remained
in the hospital for three days.  While in the hospital, he was
unable to take care of his personal needs such as bathing and
eating.  His sister and nurses bathed and fed him.  Upon returning
home, he was unable to take care of his bodily functions, such as
cleaning himself after bowel movements, and was concerned about the
way he smelled.  For six weeks following the surgery, Wilson had to
ask people to run errands for him, and a home-health service bathed
him, took his temperature and blood pressure, and changed his
bandages.   
     Wilson's neck and back continue to hurt.  He has painful
"shoulder pops" on a daily basis.  He now has difficulty getting
out of chairs and climbing stairs.  He has difficulty eating.  
     Before the accident, Wilson used hand tools and worked around
his home.  He cleaned his house.  He is no longer able to do these
things.  He hired an individual to do his outdoor housework at a
cost of $115.  He pays thirty dollars a month to have his house
cleaned.  
     He now has a fear of driving.  He does not participate in
activities as he did before the accident.  He is afraid he will be
required to go into a nursing home at an early age as a result of
the injury to his left arm.  He continues to suffer pain in his
neck, shoulder, and back, and is unable to properly use his left
arm. 
     There was evidence that Wilson will need future medication and
injections and possibly physical therapy.  In addition, Wilson
presented evidence that his rotator cuff was not intact eight
months after the repair surgery.  He did not establish a sum
certain for future costs.  However, "[f]uture medical expenses do
not require the same degree of certainty as past medical expenses." 
Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d  at 453, 457
(1983).  Wilson presented evidence of his past medical expenses,
including a medical expense summary, and "[i]t is not speculative
or conjectural to calculate future medical expenses where there is
a history of medical expenses that have accrued as of the date of
trial, particularly where there is also a degree of medical
certainty as to the need for future medication."  Bill Davis
Trucking, Inc. V Prysock, 301 Ark. 387, 392, 784 S.W.2d 755, 757-
758 (1990).  Future medical expenses were an appropriate element of
damages for consideration.
     Wilson presented proof of permanency of his injury through his
own testimony and that of his physicians.  He testified as to his
ongoing pain and disability.  His physicians testified as to the
likelihood that he will have some pain and discomfort in the future
and some need for exercises, modification of activities, pain
medications, and injections.  Dr. Bowen testified that he rated
Wilson as having an 8% impairment rating to his left upper
extremity, which translates into a 5% impairment rating to the body
as a whole.  
     Wilson presented ample proof of pain and suffering, through
his own testimony and that of his doctors and friends and
relatives.  He suffers constant pain in his neck and back and is
unable to raise his arm above his head without pain or discomfort.
     He also presented ample proof of mental anguish as a result of
the injuries he suffered in the collision.  Prior to the accident,
he was able to take care of himself and enjoy social activities. 
Now he is unable to take care of himself and worries about his
personal hygiene.  He no longer enjoys social activities as he did
prior to the accident.  He is unable to eat normally and is
embarrassed by spilling food on himself.  He is not able to keep
his house as he did before the accident.  He is concerned about the
cost of hiring people to do the jobs around his house.  He is
afraid of entering a nursing home at an early age because he is no
longer able to care for himself as a result of the injury to his
left arm.  The Arkansas mortality table introduced at trial showed
him to have a life expectancy of 23.49 years.
     The proof in this case supported the conclusion that, not only
did Wilson suffer a permanent injury which causes him pain,
discomfort, and inability to use his left arm properly, but it also
drastically changed his life.  The verdict of $245,000 is not so
great as to shock the conscience of the court or to demonstrate
passion or prejudice on the part of the jury.  Consequently, we
affirm the judgment.