KAREN WILSON AND VERNA RICHARDS v. BRANDON CUMMINGS and DIANA B. SAWYERS v. BRANDON CUMMINGS
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December 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002674-MR
KAREN WILSON AND VERNA RICHARDS
v.
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JR., JUDGE
ACTION NO. 01-CI-00100
BRANDON CUMMINGS
AND
APPELLEE
NO. 2003-CA-002696-MR
DIANA B. SAWYERS
v.
APPELLANTS
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JR., JUDGE
ACTION NO. 01-CI-00100
BRANDON CUMMINGS
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
JUDGE.1
1
COMBS, CHIEF JUDGE; JOHNSON, JUDGE; AND MILLER, SENIOR
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
JOHNSON, JUDGE:
Karen Wilson and Verna Richards in Case No.
2003-CA-002674-MR have appealed from a judgment of the Warren
Circuit Court entered on September 18, 2003, which confirmed a
jury’s verdict that apportioned to Wilson 25% of the liability
for the cause of any damages to Wilson and Richards as the
result of a three-vehicle accident and awarded Wilson and
Richards zero in damages.
Diana B. Sawyers in Case No. 2003-CA-
002696-MR has appealed from the same judgment claiming that the
jury’s failure to award her any damages was a result of passion
or prejudice.
Having concluded that Wilson was not entitled to
a directed verdict on liability, that the jury was properly
instructed, and that there was sufficient evidence to support
the jury’s apportionment of liability, we affirm in part in Case
No. 2003-CA-002674-MR.
Having concluded that the evidence was
undisputed that the accident caused certain injuries to Wilson
and Richards which resulted in some medical expenses and some
pain and suffering, we reverse in part on the issue of damages
for medical expenses and pain and suffering for Wilson and
Richards and remand for entry of a judgment notwithstanding the
verdict on the medical expenses related to the undisputed
injuries of Wilson and Richards and a new trial on their claims
for the pain and suffering for those undisputed injuries.
Having concluded that the jury’s award of zero damages to Wilson
for her alleged lost wages and property damage was appropriate
-2-
under the evidence, we affirm on those issues.
Having further
concluded that the jury’s award of zero damages to Sawyers was
appropriate under the evidence, we affirm in Case No. 2003-CA002696-MR.
This case arose out of a three-vehicle accident
occurring on July 3, 2000, on Fairview-Boiling Springs Road in
rural Warren County, Kentucky.
The undisputed evidence showed
that 17-year-old Brandon W. Cummings was driving a Honda Civic
owned by his aunt in a southerly direction on Fairview-Boiling
Springs Road at the time of the accident.
When Cummings topped
a “blind” hill, at a speed of approximately 60 miles per hour in
a 55 miles per hour speed zone, which had posted a 35 miles per
hour speed advisory, Sawyers was northbound on Fairview-Boiling
Springs Road in her Chevrolet Blazer.
At the time of impact,
Sawyers had either completely stopped, had slowed and almost
stopped, or had stopped and had slowly started moving again as
she was making a left turn onto Norris Road.
Fairview-Boiling
Springs Road is a two-lane road which generally runs in a northsouth direction and Norris Road is also a two-lane road which
generally runs westward from its intersection with FairviewBoiling Springs Road.
The evidence showed that when Cummings’s vehicle
collided with Sawyers’s vehicle, Sawyers’s vehicle was
approximately 18 inches over the “imaginary” center line of
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Fairview-Boiling Springs Road, as she was in the process of
making a left turn onto Norris Road.
At this same time, Wilson
was also driving north on Fairview-Boiling Springs Road in her
Honda Accord and had been following Sawyers for about one mile
before the accident.
Richards, who is Wilson’s mother, was
riding in the passenger seat of Wilson’s vehicle.
There was
disputed testimony whether, as Sawyers was attempting to turn
left, Wilson stopped her vehicle a few feet behind Sawyers’s
vehicle, or whether Wilson attempted to pass Sawyers on the
right side of the road.
Since Norris Road ends at Fairview-
Boiling Springs Road, for Wilson to have passed Sawyers on the
right side, she would have had to have driven onto the shoulder
of Fairview-Boiling Springs Road and into the entrance to a
gravel driveway leading to a farm field.
A jury trial was held on September 9 and 10, 2003, in
the Warren Circuit Court.2
At trial the disputed issues
regarding liability included the speed of Cummings’s vehicle and
the locations of Cummings’s, Sawyers’s, and Wilson’s vehicles at
the time of the collision.
As to their damage claims, all of
Sawyers’s alleged damages were challenged and most, but not all,
of Wilson’s and Richards’s alleged damages were disputed.
2
Wilson and Richards had also sued Sawyers, but they had settled before
trial. Richards did not sue Wilson. Cummings counterclaimed against
Sawyers, but voluntarily dismissed his claim before trial. Thus, the
remaining claims were by Sawyers, Wilson, and Richards against Cummings.
-4-
The jury returned a verdict which apportioned
liability against Cummings at 37%, Sawyers at 38%, and Wilson at
25%.
The jury did not award Sawyers, Wilson, nor Richards any
amount for their alleged damages.
Sawyers filed a motion for a
judgment notwithstanding the verdict, motion for new trial, and
motion to alter, amend, or vacate judgment on September 25,
2003, and Wilson and Richards filed a joint motion for a
judgment notwithstanding the verdict, motion for new trial, and
motion to alter, amend, or vacate judgment on September 26,
2003.
The trial court denied all the motions in an order
entered on November 20, 2003.
This appeal followed.
Wilson claims that the trial court erred by denying
her motion for a directed verdict as to Cummings’s liability and
by instructing the jury as to her possible negligence because at
the time of impact “she owed no duty to the other motorists” and
that “[s]he certainly could not have violated any duties under
these uncontroverted facts.”
In her brief, Wilson states as
follows:
At its most basic level, Karen Wilson
could not be liable for this accident
because she owed no duty to the other
motorists. A motorist stopped in traffic
and not intending to change her lane of
travel has no duties to motorists ahead of
her on the roadway. Such a motorist has no
duty to these motorists because when stopped
at a standstill, there is nothing that she
can do, or nothing that she could fail to
do, that would in any manner affect those
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motorists farther on down the roadway. Mr.
Cummings never once attempted to suggest the
existence of a specific duty incumbent upon
Karen. He did not, because he cannot.
Without a legal duty, there can accordingly
arise no negligence. If there is no
potential for negligence, then it is
improper for jury instructions to permit
apportionment of liability on such
individual [emphases added].
The obvious flaw in Wilson’s argument, as pointed out
by Cummings, is that the location of Wilson’s vehicle at the
time of impact was disputed.
Sawyers testified that as she was
attempting to turn left, Wilson pulled to her right onto a
“little driveway” to perhaps try to come around her on the right
shoulder.3
Furthermore, photographs taken at the accident scene
show that after the collision with Sawyers’s vehicle, the front
quarter section of Wilson’s vehicle was sitting off the edge of
Fairview-Boiling Springs Road and on the farm driveway.
The
pictures also show the rear of Sawyers’s vehicle crashed into
3
While Wilson contends there was no evidence to support a finding that she
had pulled to the right side of Sawyers’s vehicle, we quote from Sawyers’s
trial testimony as follows:
[Wilson] had pulled to the right some. There
was like a little driveway there, like they
were, I don’t know, if she was going to come
around me on the right, or what. But, they had
pulled to the right and when it [Cummings’s
vehicle] shoved me backwards and sideways, it
pushed me into their car.
. . .
I think when I was going to make my left hand
turn she was coming around me. Of course, she
was traveling on down the road.
-6-
Wilson’s vehicle striking the vehicle from the left front wheel
to the driver’s side door, not in the front of the hood.
Thus, there was sufficient evidence for the jury to
find that Wilson had not stopped on Fairview-Boiling Springs
Road in her lane of traffic as Sawyers attempted to turn left,
but instead that Wilson attempted to pass Sawyers on the right
shoulder, and that Wilson’s attempt to pass on the right
shoulder violated her duty “to exercise ordinary care for her
own safety[.]”
Wilson’s argument that she had no duty is
contrary to established law that an operator of a motor vehicle
has the general duty to exercise ordinary care for one’s own
safety and for the safety of others.4
While Wilson’s objection to the specific duties in the
instruction may be well-founded,5 the instruction as to the
4
Wemyss v. Coleman, Ky., 729 S.W.2d 174, 180 (1987). See also Hainline v.
Hukill, Ky., 383 S.W.2d 353, 355 (1964) (noting that KRS 189.290 places a
duty on a driver to exercise ordinary care for her own safety and the safety
of others).
5
Jury Instruction No. 3 provided as follows:
It was the duty of Karen Wilson (Wilson)
in driving her vehicle to exercise ordinary
care for her own safety and for the safety of
other persons using the highway, and this
general duty included the following specific
duties:
A)
To keep a lookout ahead for other persons
and vehicles in front of her or so near
her intended line of travel as to be in
danger of collision, and not to follow
another vehicle more closely than was
reasonable and prudent, having regard for
the speed of the respective vehicles and
-7-
general duty was clearly appropriate.
As our Supreme Court
noted in Wemyss, the “‘general duty’ . . . is the duty to
exercise ordinary care, and properly drafted instructions
utilize ‘specific duties’ as imposed by statutes only as
amplification of the ‘general duty,’ and not as the source of
such duty.”6
Accordingly, we conclude that the trial court
for the traffic upon and condition of the
roadway;
B)
To have her vehicle under reasonable
control;
AND
C)
To drive at a speed no greater than was
reasonable and prudent, having regard for
the traffic and for the condition and use
of the roadway.
6
Wemyss, 729 S.W.2d at 180. (We note that KRS 189.342 (2) and (3) would have
provided a statutory basis for a specific duty. KRS 189.342 (2) and (3)
state as follows:
(2)
The operator of a vehicle may overtake and pass
upon the right of another vehicle only under
the following conditions:
(a)
(b)
(3)
When the vehicle overtaken is making or
about to make a left turn;
Upon a roadway with unobstructed pavement
of sufficient width for two (2) or more
lines of vehicles moving lawfully in the
direction being traveled by the
overtaking vehicle.
The operator of a vehicle may overtake and pass
another vehicle upon the right only under
conditions permitting such movements safely.
Such movement shall not be made by driving off
the roadway unless passing vehicle comes to a
complete stop and such movement may be made
safely.
Further, KRS 189.290 provides in part that “[t]he operator of any vehicle
upon a highway shall operate the vehicle in a careful manner, with regard for
the safety . . . of . . . other vehicles upon the highway.”)
-8-
correctly denied Wilson’s motion for a directed verdict as to
liability and that the jury was properly instructed.
As to Wilson’s and Richards’s claims that the trial
court erred by not granting them a judgment notwithstanding the
verdict or a new trial on the issue of damages, we agree in part
with their contentions.
The evidence that Wilson received a
blow to her head from the accident resulting in bruising,
swelling, and a knot on the left side of her head was
undisputed.
Similarly, there was undisputed evidence that
Richards received a cut to her forehead from the accident.
There was also no dispute that Wilson and Richards received
reasonable medical treatment for those obvious injuries,
including being taken to the hospital by an ambulance and
appropriate emergency room treatment.
In Davis v. Graviss,7 our Supreme Court explained the
test for a trial court to follow when reviewing an award of
actual damages for excessiveness or inadequacy:
When presented with a motion for a new trial
on grounds of excessive damages, the trial
court is charged with the responsibility of
deciding whether the jury’s award appears
“to have been given under the influence of
passion or prejudice or in disregard of the
evidence or the instructions of the court.”
CR 59.01(d). This is a discretionary
7
Ky., 672 S.W.2d 928 (1984).
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function assigned to the trial judge who has
heard the witnesses firsthand and viewed
their demeanor and who has observed the jury
throughout the trial.8
The Court went on to state the appropriate standard
for appellate review on the issue of excessive or inadequate
damages:
“Upon reviewing the action of a trial judge
in (granting or denying a new trial for
inexcessiveness), the appellate court no
longer steps into the shoes of the trial
court to inspect the actions of the jury
from his perspective. Now, the appellate
court reviews only the actions of the trial
judge . . . to determine if his actions
constituted an error of law. There is no
error of law unless the trial judge is said
to have abused his discretion and thereby
rendered his decision clearly erroneous.”9
Accordingly, if the evidence was not so conclusive as to entitle
the plaintiffs to an award of damages as a matter of law, the
trial court did not err by denying a motion for a judgment
notwithstanding the verdict or a motion for a new trial.10
In Sutton v. Combs,11 the Court characterized a
judgment notwithstanding the verdict as being a tool used by the
trial court “to save the time and trouble involved in a lengthy
jury determination when (1) there is a complete absence of
8
Id. at 932. See also Miller v. Swift, Ky., 42 S.W.3d 599, 601 (2001).
Davis, 672 S.W.2d at 932 (quoting Prater v. Arnett, Ky.App., 648 S.W.2d 82,
86 (1983)). See also Burgess v. Taylor, Ky.App., 44 S.W.3d 806, 813 (2001).
9
10
Withers v. Berea College, Ky., 349 S.W.2d 357, 359 (1961).
11
Ky., 419 S.W.2d 775, 777 (1967).
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pleading or proof on an issue or issues material to the cause of
action or defense, or (2) there are no controverted issues of
fact upon which reasonable men could differ.”
In Hazelwood v.
Beauchamp,12 this Court recognized that where the plaintiff’s
“hand was crushed and mangled” in a hay bailer, the proof of
pain and suffering was so compelling that the award of “0” was
clearly inadequate.
In that case, the failure to grant a new
trial on damages was clearly erroneous.
Likewise, the Court in
Ford Motor Co. v. Zipper,13 stated that a claimant is entitled to
compensation for damages directly related to the injuries
received in the accident, but not for damages relating to a
preexisting condition.
Although a zero verdict is not always
improper, it is improper for the jury to return a zero verdict
where a compensable injury exists.14
The Court in Davis v.
Lucas,15 stated that a jury’s failure to award damages will not
be set aside unless the amount of the award is “so
disproportionate as to strike the mind . . . as . . .
result[ing] from passion, prejudice, corruption or mistake on
the part of the jury.”
12
Ky.App., 766 S.W.2d 439 (1989).
13
Ky., 502 S.W.2d 74, 79 (1973).
14
Id.
15
Ky., 432 S.W.2d 411, 413 (1968).
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Since Wilson and Richards suffered at least some
obvious and undisputed injuries and since they received at least
some undisputed, reasonable medical care in the form of
ambulance transportation and emergency room treatment, we must
conclude that the jury’s award of zero damages for Wilson and
Richards was clearly inadequate.
Thus, based on the evidence
presented at trial, the trial court erred by denying Wilson’s
and Richards’s motions for a judgment notwithstanding the
verdict with regard to their undisputed medical expenses for the
undisputed, obvious injuries sustained in this accident.
Accordingly, we reverse the trial court’s judgment with regard
to Wilson’s and Richards’s claim for the medical expenses
directly related to their obvious and undisputed injuries from
the accident and remand this matter for entry of a judgment for
the amount of those expenses.16
Similarly, the trial court erred by denying Wilson’s
and Richards’s motions for a new trial on their undisputed
claims of pain and suffering related to the undisputed injuries
just discussed.
On remand, the trial court shall order a new
trial on Wilson’s and Richards’s claims for pain and suffering
16
We realize that counsel stated at oral arguments that as a practical matter
the amount of medical expenses to be awarded will not exceed the amounts of
no-fault insurance benefits paid by the insurance company. However, if this
matter is not settled and is tried again on the issue of pain and suffering,
it may be necessary for the trial court to assign a value to these undisputed
medical expenses.
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related to these undisputed injuries.
All of Wilson’s and
Richards’s other claims for medical expenses and pain and
suffering were disputed and the evidence did not compel an award
on those claims.17
Hence, we affirm in part and reverse and
remand in part.
As to Wilson’s claim that the trial court erred by
denying her motion for a judgment notwithstanding the verdict or
a motion for a new trial on her damage claims for lost wages of
approximately $8,556.16 for missed work from July 5, 2000, to
October 16, 2000, and for property damage to her automobile of
approximately $2,200.00, we disagree.
Since the severity of
Wilson’s injuries was disputed, it was within the province of
the jury to determine whether the injuries that Wilson suffered
from the accident caused her to miss any work and to lose any
income.
The trial court did not err by refusing to set aside
the jury’s verdict of zero damages for lost wages.
As to Wilson’s claim for property damage, the pictures
of Wilson’s vehicle that were introduced at the trial show that
she received some property damage.
However, her only proof of
that damage was that the vehicle was valued at between $2,000.00
and $2,200.00 immediately before accident, that she had not
driven the vehicle since the accident, that she thought the
front axels of the car were broken, and that the car was
17
Withers, 349 S.W.2d at 359.
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inoperable and parked in a field.
Wilson did not present any
evidence as to the fair market value of her vehicle immediately
after the accident.
The jury was instructed that it could award
Wilson “[t]he difference between the fair market value of her
vehicle immediately before the accident and its fair market
value immediately thereafter, not to exceed $2,200.00.”
Since
Wilson failed to present any proof as to the fair market value
immediately after the accident, it was not error for the jury to
award Wilson zero for the damage to her vehicle.18
In Case No. 2003-CA-002696-MR, Sawyers claims that the
jury awarded her inadequate damages for her medical expenses and
pain and suffering because the jury was influenced by passion or
prejudice.
But, unlike Wilson and Richards, all of Sawyers’s
medical expenses were disputed.
Sawyers was not transported to
the hospital by an ambulance and she did not go the emergency
room until later than evening.
Also, Sawyers had experienced
pre-existing injuries that Cummings contended were the cause of
her medical problems.
Sawyers concedes that the evidence regarding her
damage claims were disputed, but she contends “that passion and
prejudice was obvious on the part of this jury [and] [t]he
extent of that passion and prejudice was evidenced by the
rulings on the clearly objective damages suffered by Richards
18
Niagara Fire Insurance Co. v. Huffman, Ky., 253 S.W.2d 617, 619 (1952).
-14-
and Wilson.”
Sawyers has not cited any legal authority for her
contention that our determination that the jury’s award to
Wilson and Richards was in part inadequate requires a conclusion
that the jury’s determination to not award her any damages must
necessarily have been the result of passion and prejudice.
We
must reject this argument since a determination of whether a
particular damage award is inadequate must be based on the
evidence of record pertaining to each element of damage.
Since
there was disputed evidence as to all of Sawyers’s damage
claims, the evidence of record did not compel an award in her
favor.19
Thus, the trial court did not err by denying Sawyers’s
motion for a judgment notwithstanding the verdict and a motion
for a new trial.
Accordingly, we affirm the trial court’s
judgment as to Sawyers.
Based on the foregoing reasons, in Case No. 2003-CA002674-MR, we reverse and remand on the undisputed medical
expenses related to Wilson’s and Richards’s obvious injuries and
the pain and suffering related to those injuries, and affirm on
all other issues.
We affirm in Case No. 2003-CA-002696-MR.
ALL CONCUR.
19
Withers, 349 S.W.2d at 359.
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BRIEF AND ORAL ARGUMENT FOR
APPELLANTS KAREN WILSON AND
VERNA RICHARDS:
BRIEF FOR APPELLEE:
Michael K. Bishop
Bowling Green, Kentucky
David T. Sparks
Bowling Green, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLANT DIANA SAWYERS:
Kenneth R. Haggard
Hopkinsville, Kentucky
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