KATHLEEN NIEKAMP v. JULIAN G. SHARP
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RENDERED: APRIL 20, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
KATHLEEN NIEKAMP
v.
1999-CA-001952-MR
AND
1999-CA-002012-MR
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 96-CI-004176
JULIAN G. SHARP
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING IN 1999-CA-001952-MR
AND
DISMISSING IN 1999-CA-002012-MR
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE: Kathleen Niekamp has appealed from a judgment of
the Jefferson Circuit Court entered on May 4, 1999, that followed
a jury trial of her personal injury action for damages caused by
a motor vehicle accident.
Having concluded that the trial court
did not err in denying Niekamp’s motion for a new trial based on
her claim of an inadequate award of damages for past and future
pain and suffering and no award of damages for loss of earnings,
we affirm.1
Niekamp was injured in an automobile accident at the
intersection of Bardstown Road and Tyler Lane in Jefferson
County, Kentucky on July 7, 1995, when the appellee/crossappellant, Julian G. Sharp, made a left turn in front of her.
At
the jury trial held in April 1999, the trial court granted a
directed verdict in favor of Niekamp on the issue of liability.
The trial court also granted Niekamp a directed verdict on her
claim for damages for “medical expenses incurred” of $21,999.51,
and “replacement services” of $1,247.00.
All other claims for
damages were submitted to the jury, which returned the following
verdict: past and future mental and physical suffering,
$6,753.49; future medical expenses, $20,000.00; and “[l]oss of
her power to labor and earn money in the past and in the future”,
$0.2
1
While Sharp has filed a protective cross-appeal on the
issue of liability, since we have affirmed on Niekamp’s appeal,
the cross-appeal is dismissed as moot.
2
The verdict form read as follows:
Mental and physical suffering which she has
endured from the date of the accident until
today and is likely to endure in the future
not to exceed $200,000.00.
$6,753.49
Medical expenses incurred for her treatment
up through today[.]
$21,999.51
Medical expenses she is likely to incur[ ] in
(continued...)
-2-
On May 14, 1999, Niekamp filed a motion for a new trial
on the issue of damages.3
on July 20, 1999.
The motion was denied by order entered
This appeal followed.
Since Niekamp claims the trial court erred when it
denied her motion for a new trial, our review is limited to
determining whether the trial court’s ruling was clearly
erroneous:
[The] recent decision in Cooper v.
Fultz, Ky., 812 S.W.2d 497 (1991), laid to
2
(...continued)
the future not to exceed $20,000.00.
$20,000.00
Loss of her power to labor and earn money in
the past and in the future not to exceed
$200,000.00.
$0.00
Replacement services.
$1,247.00
[The jury verdict totaled $50,000.00, but the judgment entered by
the trial court was for $30,293.39, since the difference of
$19,706.61, in accordance with pre-trial stipulations,
constituted subrogated claims.]
3
Kentucky Rules of Civil Procedure (CR) 59.01(d):
A new trial may be granted to all or any
of the parties and on all or part of the
issues for any of the following causes: . .
(d)
Excessive or
appearing to
influence of
disregard of
instructions
inadequate damages,
have been given under the
passion or prejudice or in
the evidence or the
of the court.
-3-
rest any confusion which previously existed
with respect to such appellate review. [The
Supreme Court] began by declining any review
until the trial court had first considered
the substance of the claim and quoted with
approval from Davis v. Graviss, Ky., 672
S.W.2d 928 (1984), which described a CR 59.01
ruling as “a discretionary function assigned
to the trial judge who has heard the
witnesses firsthand and observed and viewed
their demeanor and who has observed the jury
throughout the trial.” Id. at 932. [The
Supreme Court] followed Prater v. Arnett,
Ky.App., 648 S.W.2d 82 (1983), in which the
appellate court was held to be precluded from
stepping “into the shoes” of the trial court,
and precluded from disturbing its ruling
unless it was found to be clearly erroneous.
[The Supreme Court’s] decision in Cooper
amounts to a recognition that a proper ruling
on a motion for new trial depends to a great
extent upon factors which may not readily
appear in an appellate record. Only if the
appellate court concludes that the trial
court’s order was clearly erroneous may it
reverse.4
Accordingly, if the jury’s verdict awarding $6,753.49 for mental
and physical suffering and $0 for loss of earnings is supported
by the evidence, the trial court was not clearly erroneous in
denying Niekamp’s motion for a new trial and we must affirm.
In reviewing the evidence at trial, we note that
Niekamp’s primary injuries were a bruised sternum and a fracturedislocation within the bones making up the subtalar joint of her
right foot.
She was taken to Baptist East Hospital where she was
treated and released from the emergency room. X-rays were taken
of her right ankle and read “negative for fracture.”
4
She was
Turfway Park Racing Ass’n v. Griffin, Ky., 834 S.W.2d 667,
669 (1992).
-4-
placed in a splint, told to apply ice and pain medication was
prescribed.
She was told to follow up with her doctor.
Niekamp did this follow-up with Dr. Joseph G. Werner,
Jr., an orthopedic surgeon, from July 13, 1995, to August 16,
1995.
Dr. Werner treated Niekamp for a sprained ankle,
prescribing a soft cast and pain medication.
On August 16, 1995,
Dr. Werner conducted an additional x-ray examination and he
became concerned that Niekamp had actually sustained a fracture
to her right foot.
Dr. Werner referred her to Dr. Mark E.
Petrik, another orthopedic surgeon who specialized in treatment
of the hands and feet.
Dr. Petrik saw Niekamp on August 18, 1995, and observed
that her ankle motion was good, but that she had limited side-toside motion of her foot.
He found that her foot was pushed to
the outside, and he could not bring it to tilt inward, as a
normal heel would.
He advised Niekamp that he would need to open
her foot surgically to reposition the bones.
On August 19, 1995, Dr. Petrik admitted Niekamp for
surgery.
Fortunately, he was able to manually force the bones
into their normal alignment by closed reduction instead of
opening her foot.
Niekamp wore a long-leg cast to stabilize the
joint until September 5, when a short-leg cast was applied.
The
cast was removed on October 10, and Niekamp underwent physical
therapy for several weeks.
X-rays performed on January 3, 1996,
showed some progression of post-traumatic arthritis, and on April
23, 1996, repeat x-rays showed subtalar joint arthritis along
-5-
with increased arthritic effect on her calcanecuboid joint.
While Niekamp still walked with a limp, Dr. Petrik informed her
that it was too soon to proceed to surgery, and that there was
little else he could do for her at that time.
Niekamp testified at trial that she continued to be in
daily pain because of the arthritis in her foot, that she
continued to walk with a limp, that she had problems with walking
distances, with being on her feet for extended periods of time,
and with keeping up with her children.
As our Supreme Court stated in Williams v. Shepherd:5
The jury had the right to determine the
monetary value of the loss of wages, pain
suffered, and medical treatment sustained by
[Plaintiff] as a result of the accident.
. . .
The composite opinion of twelve persons
determined the extent and value of this type
of injury. The jury measured the claim for
pain and suffering. The verdict of the jury
was within the scope of the pleadings,
evidence, and instructions, and the amount of
the verdict was not so inadequate as to show
passion and prejudice.
Having reviewed the evidence at trial, we must conclude that the
jury’s award of $6,753.49 for past and future mental and physical
suffering was supported by the evidence and it is affirmed.
Niekamp’s second argument is that the jury verdict of
$0 in damages for the “loss of her power to labor and earn money
in the past and in the future” was inadequate.
5
Ky., 452 S.W.2d 406, 407-08 (1970).
-6-
While this issue
must also be analyzed under the substantial evidence test, our
analysis is complicated by the jury instructions given by the
trial court.
The verdict form listed this damage claim as
“[l]oss of her power to labor and earn money in the past and in
the future not to exceed $200,000.00.”
However, we believe this
claim for damages should have been separated into past lost
earnings and future loss or impairment of her power to earn as
set forth in Palmore & Eades, Kentucky Instructions To Juries §
39.04 and § 39.05 (5th ed., 1989):
Sec. 39.04
Same; loss of time
If you find for P you will determine
from the evidence and award him a sum of
money that will fairly and reasonably
compensate him for such loss of wages and
income as you believe from the evidence he
sustained directly by reason of his injuries,
not to exceed $________.
Sec. 39.05
Same; future lost earnings
If you find for P you will determine
from the evidence and award him a sum of
money that will fairly and reasonably
compensate him for such loss or impairment of
his power to earn money in the future as you
believe from the evidence he has suffered
directly by reason of [his injuries] [the
accident], not to exceed $_______.
Niekamp argues that since she was required to wear a
cast on her leg and since she had to go to physical therapy, that
“[c]learly, from the undisputed evidence presented to the jury,
[she] had some loss to her power to earn money between the date
of the injury and the date of the trial.”
As to her future loss
of earning capacity, Niekamp argues that since the jury awarded
-7-
her $20,000.00 for future medical expenses, which was the exact
amount Dr. Petrik estimated for the cost of a future surgery,
“the jury had to conclude that it was ‘likely’ she would undergo
the surgery” and “[t]he uncontradicted evidence clearly showed
that [she] would be totally disabled for some period of time
following the surgery” [emphasis original].
Sharp argues in his brief that Niekamp is not entitled
to any relief on appeal because she was not entitled to the
instructions that were given:
Actually, the measure of damages allowed by
the court’s instructions for lost earning
capacity is not correct. In reality, the
jury should have been instructed in
accordance with our tendered jury
instructions because the measure of damages
for lost earnings is actually “permanent
impairment of earning capacity” (Hargett v.
Dodson, [Ky.App., 597 S.W.2d 151, 153
(1979)]; W.A. Wickliffe Coal Co. v. Ryan,
[241] Ky. 537, [540], 44 S.W.2d 525
[(1931)]). We tendered on behalf of Appellee
proper instructions in this regard at our
tendered Instruction Four [citation to record
omitted]. Plaintiff-Appellant was not
working at the time of the accident (and for
a few years beforehand) so there should
properly have been no lost wage instruction
given. Nevertheless, the instruction
actually given by the court was cast in terms
of permitting the jury to make an award, if
they chose to do so, for “loss of her power
to labor and earn money in the past and in
the future”. This was copied from an
instruction tendered by the Plaintiff and, of
course, is not correct as a proper measure of
damages based on the foregoing authorities.
Since the jury refused to make an award on
this account, there was no appealable error
in the instruction from our perspective, but
since the Plaintiff-Appellant did not tender
a proper instruction in this regard, it seems
to us that Appellant cannot complain of the
-8-
failure of the jury to award under an
improper instruction setting forth an
improper measure of damages.
While we generally agree with the cases cited by Sharp,
the problem with his argument is that he did not cross-appeal on
the issue of an improper jury instruction.
Thus, we are
confronted with the question of whether an award of damages that
was inadequate under the jury instruction that was given is
grounds for reversal of the verdict when the jury instruction
that was given gave the plaintiff more than she was entitled to
in the first place.
We know of no other way to address this
error other than under the palpable error rule.
Under CR 61.02,6
a court may consider a palpable error which affects the
substantial rights of a party even though the error was not
sufficiently raised or preserved for review if a determination is
made that manifest injustice has resulted from the error.
Since
the evidence at trial supports a verdict of zero damages for
Niekamp’s past loss of earnings and the impairment of her power
to earn money in the future, we hold that the trial court was not
6
CR 61.02 provides:
A palpable error which affects the
substantial rights of a party may be
considered by the court on motion for a new
trial or by an appellate court on appeal,
even though insufficiently raised or
preserved for review, and appropriate relief
may be granted upon a determination that
manifest injustice has resulted from the
error.
-9-
clearly erroneous in denying a new trial and we must affirm.
For the foregoing reasons, the appeal from the judgment
of the Jefferson Circuit Court is affirmed and the cross-appeal
is hereby dismissed as moot.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
William J. Nold
Louisville, KY
William A. Miller, Jr.
Louisville, KY
-10-
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