LENDELL OAKES v. WAL-MART STORES, INC.
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RENDERED: January 8, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-003261-MR
LENDELL OAKES
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 96-CI-00369
WAL-MART STORES, INC.
and
APPELLEE
NO.
1996-CA-003485-MR
WAL-MART STORES, INC.
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 96-CI-00369
LENDELL OAKES
and
LENDELL OAKES
APPELLEE
NO.
1997-CA-000064-MR
CROSS-APPELLANT
CROSS-APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 96-CI-00369
v.
WAL-MART STORES, INC.
CROSS-APPELLEE
OPINION AND ORDER
AFFIRMING IN PART AND REVERSING
IN PART WITH DIRECTIONS
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON AND MILLER, JUDGES.
JOHNSON, JUDGE:
This Court has before it two separate appeals
that have been consolidated for our review.
Lendell Oakes
(Oakes) and Wal-Mart Stores, Inc. (Wal-Mart) have each appealed
from the judgment of the Warren Circuit Court that was entered on
November 1, 1996.
The judgment was consistent with the jury's
verdict following a trial on Oakes' claims predicated on premises
liability.1
We affirm in part and reverse in part with
directions.
Oakes filed his complaint in the Warren Circuit Court
on April 9, 1996, alleging that he had sustained an injury the
previous April after slipping on spilled Easter candy near a
check-out lane at a Wal-Mart store in Bowling Green.
Oakes
allegedly suffered a severe hematoma to his right hip and a groin
hernia on his right side.
The case was tried before a jury in
1
Oakes has also filed a cross-appeal, but it does not raise
any additional issues that were not already included in his
original direct appeal.
-2-
October 1996.
Medical evidence presented by Oakes indicated he
had suffered a hernia in the right inguinal area above the
scrotum, which was surgically repaired two months after the fall.
Oakes testified that in addition to the pain and recurring
infections in his right testicle, he had been impotent since the
April 1995 incident at Wal-Mart.
Dr. Oscar Carter (Dr. Carter)
testified that, in his opinion, Oakes' loss of sexual function
was due to the fall at Wal-Mart and the resulting groin injury.
Wal-Mart was allowed to offer evidence that Oakes had
sustained a similar injury after falling in a grocery store in
1991.
It also elicited testimony from Dr. Carter that Oakes had
suffered bouts of prostatitis (inflammation of the prostate
gland) and epididymitis (infection in the testicle) prior to the
1995 fall at its store in Bowling Green.
Both parties in their appeals raise issues concerning
the procedure utilized by the trial court after the jury returned
to the courtroom with an incomplete verdict.
The jury had been
instructed that Wal-Mart had a duty to exercise ordinary care for
the safety of Oakes and that Oakes had a duty to exercise
ordinary care for his own safety.
Pursuant to these
instructions, the jury found that both Wal-Mart and Oakes had
failed to comply with those duties and that such failures were a
substantial factor in causing Oakes' injuries.
However, the jury
neglected to complete Instruction No. IV which required it to
determine the percentage of fault attributable to each party.
-3-
The trial court then informed the jurors that it was their duty
to apportion fault and instructed them to deliberate further.
After the jury left the courtroom, the trial court
advised the attorneys that there was an even more serious problem
with the verdict than the jury's failure to complete the
apportionment instruction.
The following discussion transpired
between the trial court and Wal-Mart's attorney, Hon. Matthew
Baker (Attorney Baker):2
Judge Lewis:
I've got worse news than
that. When they come back in and return
the verdict, regardless of how it is,
I'll have to send them back again,
because they returned the medicals, but
only gave sort-of a token pain and
suffering.
Attorney Baker:
Judge Lewis:
That's all right.
I don't think it is.
Attorney Baker: You've said $0 isn't
appropriate and it is.
Judge Lewis: It certainly isn't.
Neither is $1.00.
Attorney Baker:
Over my objection.
Judge Lewis: Of course, but I'm trying
to save your verdict.
Attorney Baker:
Okay.
I understand.
Judge Lewis: If I don't do it, it’s
Bill's objection to make, which would ah
. . .
Attorney Baker:
Okay.
2
Oakes' attorney, Hon. William P. Hagenbuch, Jr., was
present, but did not comment on this issue.
-4-
Judge Lewis: He's got all his medicals,
it’s just a matter of how to instruct
them that you can't have that many
medical bills . . . It’s the same thing
that happened the other day.
Attorney Baker: Except it is an award,
instead of no award.
Judge Lewis:
One dollar.
Attorney Baker:
Okay.
When the jury returned, it had completed Instruction
No. IV and apportioned fault 60% to Oakes and 40% to Wal-Mart.
It had awarded Oakes all the medical expenses he had incurred as
a result of the injury which amounted to $5,690.29, and $1.00 for
past pain and suffering.
As he had previously indicated to the
attorneys, the trial judge instructed the jury as follows:
Now, ladies and gentlemen, I don't know
if Mr. Jones was on another jury. I had
trouble earlier this term with this
issue. The law is in the state of
Kentucky--that if--and I don't know how
you all derived at your verdict and
that's not for me to try to figure that
out. But, the law says that if a person
has suffered medical expenses due to the
negligence of another party, then
because of those medical expenses
incurred, that that would mean that they
had to have suffered pain and suffering
and so you all have returned the amount
of $1.00, but they have said that not
only can you not return zero, but you
cannot return a token sum. There has to
be a reasonable amount of pain and
suffering that goes along with $5,690.29
worth of medical expenses and this is-and you all are the finders of fact--so
you have to determine what that
reasonable amount is. I can tell you
that zero is not reasonable. I can tell
you the $1.00 is not reasonable because
you can't suffer $5,000.00 worth of
-5-
medical expenses without having more
pain and suffering than that. So, I'm
going to ask you to return to the jury
room and work on Instruction No. 5 and
determine to the best of your ability
what the reasonable amount of pain and
suffering should be in this case.
After further deliberation, the jury returned its verdict
awarding Oakes the sum of $9,000 for past pain and suffering.
A
judgment in favor of Oakes in the amount of $5,876.17 (40% of the
total award) was entered on November 1, 1996.
Wal-Mart moved to alter, amend or vacate the judgment
based on two grounds:
(1) the original $1.00 for past pain and
suffering was justified by the evidence; and, (2) Oakes' failure
to notify his health insurance carrier pursuant to Kentucky
Revised Statutes (KRS) 411.188, prevented him from recovering his
medical bills from Wal-Mart.
Oakes did not file any post-
judgment motions, nor did he file a response to Wal-Mart's motion
to alter, amend or vacate the judgment.
On December 19, 1996,
the trial court denied Wal-Mart's motion except it ordered that
"any check or draft which is ultimately tendered to [Oakes] in
satisfaction of the judgment" bear the names of both Oakes and
his insurer.
These two appeals followed.
Case No. 1996-CA-003261-MR
In his appeal, Oakes argues that the trial court erred
in instructing the jury to reconsider its initial award of $1.00
for past pain and suffering.
It is settled in this jurisdiction
that when the jury has awarded the plaintiff his past medical
expenses an award for past pain and suffering of $0, or a token
-6-
amount as awarded in the instant case, is inconsistent and
inadequate as a matter of law.
Laughlin v. Lamkin, Ky.App.,
___S.W.2d___ (9-18-1998); Prater v. Coleman, Ky.App., 955 S.W.2d
193, 194 (1997); Hazelwood v. Beauchamp, Ky.App., 766 S.W.2d 439,
440-441 (1989); Phipps v. Bisceglia, Ky., 383 S.W.2d 367, 368
(1964); Vittitow v. Carpenter, Ky., 291 S.W.2d 34, 35 (1956);
Biggs v. Toone, Ky., 244 S.W.2d 443, 445 (1951).
It is also
settled that a plaintiff does not waive his right to seek a new
trial based on inadequacy of damages by failing to ask the trial
court to have the jury sent back to reconsider its failure to
make an appropriate award of such damages.
812 S.W.2d 497, 501 (1991).
Cooper v. Fultz, Ky.,
The correct procedure for the trial
court to follow when the jury has inserted $0, or any token
figure for past pain and suffering after having awarded past
medical expenses, is to receive the verdict and to correct the
inconsistency upon a motion for a new trial.
Id. at 499-500.
There is no question that the trial court erred in
instructing the jury, which obviously thought little of Oakes'
claim of past pain and suffering to begin with, to reconsider its
award.
However, any error in the trial court’s instructions was
waived by Oakes' failure to object to the trial court's sua
sponte decision to have the jury reconsider its verdict.
Kentucky Rules of Civil Procedure (CR) 51(3).
Also, by not
filing a motion pursuant to CR 59.01(a),3 Oakes failed to
3
CR 59.01(a) reads:
"A new trial may be granted to all or
(continued...)
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preserve any alleged error due to an irregularity in the
proceedings.
Hamlin Construction Company, Inc. v. Wilson,
Ky.App., 688 S.W.2d 341, 342 (1985).4
Obviously, Oakes, who asked the jury to award him the
sum of $250,000 for past pain and suffering, was unhappy with the
increased award of $9,000.
However, Oakes’ remedy was to have
filed a motion for a new trial on the ground of inadequate
damages pursuant to CR 59.01(d), which he did not do.
In
Shortridge v. Rice, Ky.App., 929 S.W.2d 194, 196 (1996), the
trial court, at plaintiff's "insistence," utilized the same
erroneous procedure of having the jury reconsider a $0 verdict
for past pain and suffering.
The jury ultimately awarded the
plaintiff $1,000 for past pain and suffering, a sum representing
one-fifth of her past medical expenses.
On appeal, the plaintiff
argued that the trial court erred when it denied her motion for a
new trial which was based on the inadequacy of the award.
This
Court stated that under the circumstances presented in
Shortridge, our review of the trial court's refusal to grant a
3
(...continued)
any of the parties and on all or part of the issues for any of
the following causes: (a) Irregularity in the proceedings of
the court, jury or prevailing party, or an order of the court, or
abuse of discretion, by which the party was prevented from having
a fair trial."
4
We note that Oakes’ brief is not in compliance with CR
76.12(4)(c)(iv) since he failed to provide “at the beginning of
the argument a statement with reference to the record showing
whether the issue was properly preserved for review and, if so,
in what manner.”
-8-
new trial would be "based upon the alleged inadequacy as [ ] if
the jury had originally awarded $1,000.00."
Id.
While there are some minor differences, the facts in
the case sub judice are very similar to those in Shortridge.
While Shortridge openly insisted that the trial court instruct
the jury to reconsider its award, Oakes, though clearly invited
by the trial court to object, by his silence, merely acquiesced
in that procedure.
Additionally, when the jury returned a
verdict that Oakes still believed to be inadequate, Oakes, unlike
Shortridge, did not move for a new trial.
The standard of review of this Court in reviewing
issues of adequacy of a jury verdict is set out in McVey v.
Berman, Ky.App., 836 S.W.2d 445 (1992). "[O]ur only function in
reviewing the denial of a motion for new trial is to decide
whether the trial judge abused his discretion.”
Id. at 448.
also Davis v. Graviss, Ky., 672 S.W.2d 928 (1984).
See
Since the
issue of whether a verdict should be set aside as either
inadequate or excessive must first be addressed to the trial
judge who "heard the witnesses firsthand and viewed their
demeanor and who [ ] observed the jury throughout the trial”,
Davis at 932, it clearly is not a matter which can be raised for
the first time on appeal.
In sum, Oakes' acquiescence to the
procedure utilized by the trial court, and his failure to seek a
new trial, prevents this Court from addressing the jury's award
for past pain and suffering.
-9-
The second argument Oakes makes is that the trial court
erred in denying his motion in limine to exclude any evidence of,
or reference to, his fall at a grocery store in 1991, and that it
erred in overruling several objections he made during Wal-Mart's
questioning of the medical experts regarding the prior fall and
the resulting injury.
He contends that the evidence was greatly
prejudicial and comprised evidence from which the jury might have
inferred that he was "abusing the legal system."
Oakes further
insists that the prior incident had no relevance in his case
against Wal-Mart as the medical evidence "was absolutely clear
that his 1991 hernia was on the left side and his 1995 hernia
[was] on the right side."
Wal-Mart, of course, counters that the
evidence is both material and relevant.
Our standard of review of this issue is summarized in
Transit Authority of River City v. Vinson, Ky.App., 703 S.W.2d
482, 484 (1985), as follows:
Relevancy "is a determination which
rests largely in the discretion of the
trial court . . . ." Glen Falls
Insurance Company v. Ogden, Ky., 310
S.W.2d 547 (1958). However, the trial
court possesses the power to exclude
relevant evidence "if its probative
worth is outweighed by the threat of
undue prejudice to the opposing party."
R. Lawson, The Kentucky Evidence Law
Handbook, § 2.00 at 21 (2nd ed. 1984).
This court will not disturb a lower
court's discretionary ruling on appeal
absent an abuse of discretion. Id. at
22. See also Tumey v. Richardson, Ky.,
437 S.W.2d 201 (1969).
-10-
Oakes contends that while he had a very similar fall in
1991 and a similar injury, a different side of his body was
affected.
However, Wal-Mart produced evidence that Oakes had
also incurred some degree of sexual dysfunction as a result of
the 1991 injury.
Since Oakes was seeking an award to compensate
him for impotency, a condition he attributed entirely to the 1995
injury, the evidence of the 1991 injury was relevant to the issue
of the cause of that impotency.
Accordingly, we find no abuse of
discretion in the trial court's ruling on the evidentiary issue.
We affirm in case no. 1996-CA-003261-MR.
Case No. 1996-CA-003485-MR
In its appeal, Wal-Mart also argues that it was
improper for the trial court to instruct the jury to reconsider
its verdict and contends that this Court should reinstate the
$1.00 award for past pain and suffering.
Wal-Mart's counsel did
voice an objection when the trial court announced its intention
to have the jury reconsider its verdict; however, we are unable
to discern how Wal-Mart was harmed by the error.
Once the jury
determined Wal-Mart was liable for Oakes' injuries and awarded
him all the medical expenses he incurred as a result of the fall,
Wal-Mart was not entitled to the $1.00 verdict for past pain and
suffering.
Wal-Mart has cited Justice Wintersheimer's dissent in
Smith v. McMillan, Ky., 841 S.W.2d 172 (1992) (jury found
defendant doctor liable but awarded $0 damages--new trial granted
on other grounds), and Carlson v. McElroy, Ky.App., 584 S.W.2d
754 (1979), for the principle that a nominal award for pain and
-11-
suffering is appropriate despite a verdict in favor of the
plaintiff on the issue of liability.
However, the jury in this
case did not merely render a verdict of liability.
It
additionally awarded Oakes all the medical expenses attributable
to his injury.
Thus, while Wal-Mart insists that the trial court
"had a fundamental misunderstanding of the law in this regard",
we believe Wal-Mart is mistaken about the state of the law
concerning nominal damages for past pain and suffering.
Had the trial court sustained Wal-Mart's objection and
followed the appropriate procedure and accepted the verdict,
Oakes would have been entitled to a new trial as a matter of law.
See discussion supra at pp. 6-7.
If Wal-Mart believed $9,000 was
an excessive amount for Oakes' past pain and suffering, a claim
it has never made, its remedy was to have asked for a new trial
based on excessiveness.
It did not do this.5
Next, Wal-Mart argues that since Oakes failed to comply
with KRS 411.188(2), the trial court erred in failing to deduct
from the verdict the medical expenses awarded to Oakes.
KRS
411.188(2) reads as follows:
At the commencement of an action
seeking to recover damages, it shall be
the duty of the plaintiff or his
attorney to notify, by certified mail,
those parties believed by him to hold
subrogation rights to any award received
by the plaintiff as a result of the
5
In its post-trial motion, Wal-Mart asked the trial court to
alter or amend the judgment to reflect the jury's original award
of $1.00 for past pain and suffering. Wal-Mart neither asked for
a new trial, nor argued that $9,000 was an excessive award.
-12-
action. The notification shall state
that a failure to assert subrogation
rights by intervention, pursuant to
Kentucky Civil Rule 24, will result in a
loss of those rights with respect to any
final award received by the plaintiff as
a result of the action.
At trial, Wal-Mart objected to Oakes' claim for medical damages
because these expenses had already been paid by his health
insurance carrier and because Oakes had failed to notify his
insurer as required by the statute.
Oakes' attorney informed the
trial court that he had notified the insurer, but he had not
filed a copy of the notification in the record.
The parties then
agreed that disposition of the matter could be made in a postjudgment motion.
As stated earlier, Oakes did not file a response to the
post-judgment motion filed by Wal-Mart, and the trial court
ordered that any payment to Oakes in satisfaction of the judgment
also include the name of his insurer.
that he did comply with KRS 411.188(2).
In his brief, Oakes claims
He has appended to his
brief (1) a copy of the letter he sent to Blue Cross/Blue Shield
of Indiana dated April 1, 1996, advising it both of the lawsuit
and of the insurer's need to intervene and (2) a copy of the
certified mail return receipt.
Wal-Mart has moved this Court to
strike the brief as it contains matters outside of the record.
Since it is inappropriate to provide in a brief evidentiary
material that is not part of the record, we grant Wal-Mart’s
motion in part.
CR 76.12(4)(c)(vi); Croley v. Alsip, Ky., 602
S.W.2d 418, 420 (1980).
We order that the two-page appendix
-13-
listed as “EXHIBIT A” and “EXHIBIT B” to Oakes’ brief filed on
September 23, 1997, in case no. 1996-CA-003485-MR be stricken
from the record.
In any event, the purpose of KRS 411.188(2)6 was to
give notice to those who "hold subrogation rights" and to require
those who hold such rights to either intervene or lose any rights
"with respect to a final award."
See Ohio Casualty Insurance
Company v. Ruschell, Ky., 834 S.W.2d 166 (1992).
Failure to
comply with this portion of the statute did not inure to the
benefit of Wal-Mart.
Whether or not Oakes had a contractual duty to give
notice to his health insurance carrier and whether or not Oakes
complied with that duty are issues that do not affect Wal-Mart's
liability for its share of the jury's award.
Wal-Mart did not
have standing to assert such rights belonging to Oakes' medical
insurer by way of post-judgment motion and for this reason it was
inappropriate for the trial court to order that the insurer be
named as a payee of the funds Wal-Mart must pay to Oakes.
This
question was not properly before the trial court and we reverse
the judgment to the extent that the trial court ordered that the
name of Oakes’ health insurance carrier be placed on the check.
6
While KRS 411.188(3) was clearly declared unconstitutional
in O'Bryan v. Hedgespeth, Ky., 892 S.W.2d 571 (1995), prior to
Oakes' fall, prior to the filing of his complaint, and prior to
the trial, it is unclear what effect, if any, O’Bryan had on the
procedure under KRS 411.188(2).
-14-
Accordingly, the judgment of the Warren Circuit Court
is affirmed in part and reversed in part with directions only to
vacate that portion of the order directing Wal-Mart to include
the name of the collateral source payor on the check or draft
drawn by Wal-Mart when satisfying the judgment.
Further it is
ORDERED that Wal-Mart's motion to STRIKE Oakes' brief be, and it
hereby is, GRANTED as to the two-page appendix.
HUDDLESTON, JUDGE, CONCURS.
MILLER, JUDGE, CONCURS IN RESULT.
ENTERED: January 8, 1999
/s/ Rick A. Johnson
JUDGE, COURT OF APPEALS
-15-
BRIEFS FOR APPELLANT/CROSSAPPELLANT, LENDELL OAKES:
Hon. William P. Hagenbuch, Jr.
Scottsville, KY
BRIEFS FOR APPELLANT/CROSSAPPELLEE, WAL-MART STORES,
INC.:
Hon. Matthew J. Baker
Bowling Green, KY
-16-
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