KATHERINE GIBSON v. DELPHIN B. MORELY
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RENDERED: APRIL 7, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002226-MR
KATHERINE GIBSON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NO. 03-CI-007479
DELPHIN B. MORELY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; HENRY AND SCHRODER, JUDGES.
HENRY, JUDGE:
Katherine Gibson appeals from a jury verdict and
judgment awarding her $0 in damages for pain and suffering.
On
review, we affirm.
On October 28, 2002, Gibson was involved in a motor
vehicle accident in which she was hit head-on by a vehicle
driven by the Appellee, Delphin Morely.
Gibson subsequently
filed suit against Morely on August 26, 2003, claiming injuries
to her knee and seeking damages for medical expenses, pain and
suffering, lost wages, and impaired earning capacity.
The case
was tried before a jury on August 10 and 11, 2004.
After all
evidence was presented, the trial judge entered a directed
verdict in favor of Gibson as to her $12,795.11 in medical
expenses.
The jury subsequently returned a verdict finding
Morely 100% at fault for the accident and awarding Gibson
$12,795.11 for past medical expenses (per the trial court’s
directed verdict), $750.00 in lost wages, $0 for pain and
suffering, and $0 for impaired earning capacity.
On September
17, 2004, the trial court entered a judgment consistent with the
jury’s verdict.
On September 24, 2004, Gibson filed a motion for a new
trial, pursuant to CR1 59.01(d), arguing that the jury’s award of
$0 in damages for pain and suffering constituted “inadequate
damages, appearing to have been given under the influence of
passion or prejudice or in disregard of the evidence or the
instructions of the court.”
On October 11, 2004, the trial
court entered an order denying the motion.
This appeal
followed.
On appeal, Gibson again argues that the jury’s $0
verdict for pain and suffering was inadequate, and that the
trial court erred in failing to grant her motion for a new
1
Kentucky Rules of Civil Procedure.
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trial.
In Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984),2 our
Supreme Court set forth 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
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.
Id. at 932.
2001).
See also Miller v. Swift, 42 S.W.3d 599, 601 (Ky.
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
excessiveness), 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.”
2
Davis was overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor
Co., 83 S.W.3d 483 (Ky. 2002). Sand Hill was subsequently vacated by Ford
Motor Co. v. Estate of Smith, 538 U.S. 1028, 123 S.Ct. 2072, 155 L.Ed.2d 1056
(2003).
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Davis, 672 S.W.2d at 932, quoting Prater v. Arnett, 648 S.W.2d
82, 86 (Ky.App. 1983); see also Burgess v. Taylor, 44 S.W.3d
806, 813 (Ky.App. 2001).
In sum, we may only reverse the
trial’s court order if we find that it was clearly erroneous.
Bayless v. Boyer, 180 S.W.3d 439, 444 (Ky. 2005).
We also note
that “the action of the trial judge is presumptively correct and
the appellate court will not hastily substitute its judgment for
that of the trial judge, who monitored the trial and was able to
grasp those inevitable intangibles which are inherent in the
decision making process of our system.”
Prater, 648 S.W.2d at
86.
Of particular emphasis in our evaluation here is the
progeny of cases discussed in and resulting from Miller v.
Swift, 42 S.W.3d 599 (Ky. 2001).
In Miller, our Supreme Court
dealt with another situation in which a jury had awarded medical
expenses and lost wages but nothing for pain and suffering.
The
Court overruled Prater v. Coleman, 955 S.W.2d 193 (Ky.App. 1997)
“to the extent it holds that a ‘0’ award of pain and suffering
damages, regardless of the evidence, is inadequate as a matter
of law when accompanied by awards for medical expenses and lost
wages.”
Miller, 42 S.W.3d at 602.
It instead concluded that
“[t]he law in Kentucky . . . does not require a jury to award
damages for pain and suffering in every case in which it awards
medical expenses.”
Id. at 601.
We must instead examine the
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nature of the underlying evidence to determine if the jury’s
decision is supported by probative evidence in the record.
Thomas v. Greenview Hospital, Inc., 127 S.W.3d 663, 672 (Ky.App.
2004), overruled on other grounds by Lanham v. Commonwealth, 171
S.W.3d 14 (Ky. 2005).
“If the verdict bears any reasonable
relationship to the evidence of loss suffered, it is the duty of
the trial court and this Court not to disturb the jury’s
assessment of damages.”
440 (Ky.App. 1989).
Hazelwood v. Beauchamp, 766 S.W.2d 439,
Accordingly, if a jury’s award of zero
damages for pain and suffering is supported by evidence, a trial
court is not clearly erroneous in denying a subsequent motion
for new trial.
See Bayless, 180 S.W.3d at 444.
Gibson points to a number of facts in support of her
position that the jury’s award was inadequate.
For example, the
accident resulted in Gibson suffering a “Grade I open lateral
tibial plateau fracture,” which is a crack through the shin bone
that enters the knee joint.
She required surgery immediately
after the accident and spent three days in the hospital
receiving physical therapy and treatment for pain and
discomfort.
Dr. Robert Goodin also testified that Gibson
suffered a “relatively painful injury,” and that he routinely
prescribed patients who suffered this injury Percocet and
morphine.
He also stated that Gibson could not bear weight on
her injured leg for two months following the accident.
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There
was also testimony from multiple persons indicating that Gibson
experienced pain when she had to squat for prolonged periods of
time or climb stairs.
Morely submits in response that Gibson made a number
of statements at trial minimizing the amount of pain that she
suffered as a result of the accident.
For example, she admitted
that she did not receive any pain medication until her leg was
operated on by Dr. Goodin, and that she did not have any pain
unless she moved her leg.
Gibson also testified that she
returned to work within a week of the accident.
Moreover,
testimony from Angelique Clark-Miller, who performed a
functional capacity evaluation of Gibson, indicated that Gibson
reported to her that she had no pain both before and after her
testing, and that the worst pain she experienced due to the
accident ranked as a “2” on a scale of 1 to 10.
Dr. Goodin also
could not recall whether or not he specifically prescribed
Gibson any pain medication after her surgery.
After considering these facts and the record as a
whole - and even though we believe the question at hand to be a
relatively close one - we are not inclined to find that the
trial court was clearly erroneous in failing to grant Gibson a
new trial as to pain and suffering.
It is not for us to second-
guess the trial court in the absence of an error of law.
Davis, 672 S.W.2d at 932.
See
All that is required under our law is
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for there to be any sort of reasonable relationship between the
verdict and the evidence of loss presented.
S.W.2d at 440.
Hazelwood, 766
The trial court concluded that such a
relationship existed – based in large part upon the testimony of
Gibson herself - and we cannot say that such a conclusion is
clearly erroneous.
Gibson further argues that the holding in Miller is
not applicable here because that case involved a situation in
which the plaintiff had a pre-existing injury.
However, we note
that the Supreme Court has set forth that “the general principle
advanced in Miller - that a zero verdict for pain and suffering
may sometimes be appropriate - is not constrained to the facts
of that case,” and that it “is broadly applicable to cases which
claim this type of error.”
Bayless, 180 S.W.3d at 444-45.
Accordingly, we must reject Gibson’s contentions in this
respect.
We next address Gibson’s argument that statements made
by Morely’s counsel in opening and closing arguments should be
considered judicial admissions as to pain and suffering.
Gibson
cites specifically to Co-De Coal Co. v. Combs, 325 S.W.2d 78
(Ky. 1959) and Riley v. Hornbuckle, 366 S.W.2d 304 (Ky. 1963) in
support of her position.
In Combs, our predecessor Court set forth that “[a]n
opening statement of counsel is prefatory to introducing
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evidence.
Its purpose or function is merely to inform the judge
and the jury in a general way of the nature of the case and the
issues involved, particularly to outline what the attorney’s
client expects to prove.”
Combs, 325 S.W.2d at 79.
However, as
the Court further noted:
It is true that the court may take a case
from a jury or enter judgment where it is
clear from an opening statement either that
the plaintiff cannot recover or that the
defendant has no defense, as the case may
be. This regards the statement as a
judicial admission of the nonexistence of or
inability to prove a cause of action or a
defense, but even in such a case the action
of the court should be exercised cautiously
and only where the admission is clear.
Id.
As Riley further elaborates, the court should only take
action when the admission in question is fatal to the case.
Riley, 366 S.W.2d at 305; see also Lambert v. Franklin Real
Estate Co., 37 S.W.3d 770, 774 (Ky.App. 2000); Samuels v.
Spangler, 441 S.W.2d 129, 131 (Ky. 1969).
Moreover, a court
should not take action unless the statements or concessions are
“plainly and understandingly made.”
Hill v. Kesselring, 310 Ky.
483, 490, 220 S.W.2d 858, 862 (Ky. 1949).
Such a requirement is
of utmost importance, as:
a judicial admission is conclusive, in that
it removes the proposition in question from
the field of disputed issue, and may be
defined to be a formal act done in the
course of judicial proceedings which waives
or dispenses with the necessity of producing
evidence by the opponent and bars the party
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himself from disputing it; and, as a natural
consequence, allows the judge to direct the
jury to accept the admission as conclusive
of the disputed fact.
Sutherland v. Davis, 286 Ky. 743, 749, 151 S.W.2d 1021, 1024
(1941); see also Sroka-Calvert v. Watkins, 971 S.W.2d 823, 828
(Ky.App. 1998); Nolin Production Credit Ass’n v. Canmer Deposit
Bank, 726 S.W.2d 693, 701 (Ky.App. 1986).
Gibson points to a number of statements made by
Morely’s counsel in his opening and closing argument in support
of his position that counsel made admissions that mandate a pain
and suffering award.
Specifically, during his opening
statement, counsel told the jury that Gibson “had a very brief
period of time in which she took pain medication,” and quoted
from a functional capacity evaluation that she self-reported a
pain rating of 2 on a scale from 1 to 10.
Gibson also points to
the fact that, in his closing argument, counsel acknowledged to
the jury that Gibson stopped taking pain medication in December
2002 and had trouble kneeling.
She also notes that counsel
asked the jury to consider a number between $100.00 and $1000.00
for the five months she was off of work as a pain and suffering
award and mentioning a $5000.00 to $13,000.00 range as a
“starting point.”
However, after reviewing the record, we cannot say
that the trial court was clearly erroneous in failing to grant
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Gibson a new trial on the basis of the statements set forth
above.
Specifically, we do not believe that these statements
rise to such a level that they should be considered to be
“fatal” to Morely’s defense, nor do we believe that they were
sufficiently “formal” to constitute judicial admissions.
Moreover, and perhaps more importantly, we fail to see in the
record where Gibson presented the issue of these possible
judicial admissions to the trial court before the case was
submitted to the jury – whether in a motion for directed verdict
or otherwise - and we therefore have reservations as to whether
the issue is even properly presented for our review.
In any
event, we believe that Gibson’s argument in this respect must be
rejected.
Accordingly, the judgment of the Jefferson Circuit
Court is affirmed.
COMBS, CHIEF JUDGE, CONCURS.
SCHRODER, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael L. Stevens
Todd Greenwell
Louisville, Kentucky
R. Craig Reinhardt
Darren L. Embry
Lexington, Kentucky
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