Harness v. Smiths Food & Drug Centers

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Harness v. Smith's Food and Drug Centers. Filed August 26, 1999 IN THE UTAH COURT OF APPEALS


David Harness,
Plaintiff and Appellee,


Smith's Food and Drug Centers, Inc.,
Defendant and Appellant.

(Not For Official Publication)

Case No. 981418-CA

August 26, 1999
  1999 UT App 250 -----

Third District, Salt Lake Department
The Honorable Anne Stirba

Randall D. Lund and Clayne I. Corey, Salt Lake City, for Appellant
Mark F. James and Paul C. Drecksel, Salt Lake City, for Appellee


Before Judges Greenwood, Billings, and Davis.


David Harness sued Smith's after he was injured following a fall from a shelf in the backroom of a Smith's grocery store. A jury found Smith's negligent, and awarded Harness $12,000 in medical expenses; $200,000 in general damages for pain and suffering; and $680,000 in lost income, lost earning capacity, and loss of household services. Following entry of judgment, Smith's moved for a judgment notwithstanding the verdict, or in the alternative, a new trial. The trial court denied Smith's motion. This appeal followed.

Smith's argues that there are insufficient facts to support the jury's general damage and lost earning capacity damage awards. Because Smith's challenge to the denial of their motions amounts to an attack on the sufficiency of the evidence, they "must marshal the evidence in support of the verdict" and then show that the evidence cannot support the verdict. See Hall v. Wal-Mart Stores, Inc., 959 P.2d 109, 111 (Utah 1998).

In this case, Smith's has made no attempt to marshal the evidence in support of the jury's award of damages. In fact, all Smith's has done is argue selected facts favorable to its position. As our supreme court has noted, "[Utah's appellate courts] do not sit to retry the facts." Crookston v. Fire Ins. Exch., 817 P.2d 789, 800 (Utah 1991). Accordingly, we affirm the trial court's denial of Smith's motions.

Judith M. Billings, Judge



Pamela T. Greenwood,
Associate Presiding Judge

James Z. Davis, Judge