LIABILITY UPDATE
December 21, 2007
December 21, 2007
http://www.andreariceesq.com/
In Dodson v. J. Pacific, Inc. 2007 Daily Journal D.A.R 13199, the Second Appellate District of the California Court of Appeal held that where a plaintiff has undergone surgery in which a herniated disc is removed and a metallic plate inserted, and the jury has expressly found that the defendant’s negligence was a cause of plaintiff’s injury, the failure to award any damages for pain and suffering results in a damage award that is inadequate as a matter of law.
Major Dodson (Dodson) was self-employed in the scrap metal business. He sued J. Pacific, Inc. for general negligence and premises liability in connection with an incident that occurred on December 12, 2002, while J. Pacific’s employees were loading large cylindrical pieces of scrap metal onto Dodson’s flatbed truck. During the loading process, a metal cylinder, weighing between four and five thousand pounds, slipped from the prongs of the forklifts, and fell onto and rolled off Dodson’s truck. Dodson, who was standing behind the truck when the cylinder slipped and began to roll, ran to avoid the rolling cylinder, tripped on pea gravel on the ground, and fell. He slid into several steel posts and struck the left side of his back and neck on the posts.
After the incident, the loading process, which took another hour and a half or so, was completed, and Dodson drove his loaded truck to his scrap metal yard and then to his home. The following day, he drove the loaded truck to Atlas Iron & Metal, where the scrap metal was unloaded.
Five days later, Dodson saw his primary physician, Dr. Tanya Arvan. Arvan’s notes showed Dodson stated that he had “pain in the knees and the knees give out,” but showed no other complaint. Dodson did not tell Dr. Arvan about his fall because he “didn't think it was that serious.” Some time later, he spoke to the manager at J. Pacific, telling him he thought he might need to see a doctor. The manager referred Dodson to a Superior Care facility. The facility took x-rays of Dodson’s neck, arms, legs and back. Dodson received physical therapy (heat treatments) for a month or so, and was referred to another doctor. Dodson continued experiencing pain, and fell on two additional occasions, on January 7, 2003 and January 24, 2003. On the latter occasion, Dodson was taken to the hospital and came under the care of Dr. Sasan Yadegar, a neurosurgeon. Dr. Yadegar recommended surgery and, on February 4, 2003, removed the herniated disk and arthritic joints and inserted a metallic plate. After the surgery, Dodson experienced a loss of equilibrium and “a lot of pain” in his arms, knees, neck and back, and used a walker for about nine months. Since then, he has used a cane. Dodson received physical therapy from June 2003 to May 2004, consisting of heat treatments and massages to the neck, back and knees.
In April 2004, Dodson filed this lawsuit. At the conclusion of trial, the jury rendered a special verdict. It found J. Pacific was negligent, and its negligence was a cause of Dodson’s injury. It further found Dodson suffered economic damages of $16,679 caused by the accident, but suffered no non-economic damages. The jury also found that 50 percent of the negligence causing Dodson’s injury was attributable to Dodson. Judgment was entered for Dodson in the sum of $8,339.50.
Dodson filed a motion for a new trial on the issue of non-economic damages or, in the alternative, an additur to the judgment in the amount of $150,000. The trial court denied the motion, ruling that the verdict “did not leave [Dodson] with an inadequate recovery on a fair consideration of the evidence”; no facts suggested passion, prejudice or corruption on the part of the jury; and Dodson “had a fair trial, and the jury awarded an ample sum in consideration of the entire record.” Dodson appealed, and the Court of Appeal reversed.
The court observed that, in some cases, courts have found jury awards which fail to compensate for pain and suffering inadequate as a matter of law. (E.g., Haskins v. Holmes (1967) 252 Cal.App.2d 580, 585-586 (Haskins ) [award insufficient where plaintiff sustained severe head injuries necessarily requiring surgery, but the trial judge awarded only $88.63 in excess of the plaintiff’s actual medical expenses, in effect “allowing nothing for pain and suffering”; it was “patently obvious” that “substantial pain, suffering, shock and inconvenience” necessarily and inevitably accompanied the injuries].) The courts have also stated, however, that an award that does not account for pain and suffering is “not necessarily inadequate as a matter of law”(id. at p. 586), and that “[e]very case depends upon the facts involved.” (Miller v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555, 558 (Miller ).)
The controlling rule, we believe, was best stated in Miller, which affirmed a jury verdict that made no allowance for pain and suffering. Miller distilled this principle from the precedents it reviewed: Cases finding an award inadequate for failure to account for pain and suffering “ involved situations where the right to recover was established and . . . there was also proof that the medical expenses were incurred because of defendant’s negligent act.” (Miller, supra, 212 Cal.App.2d at p. 558.) In such situations, Miller concluded, “[i]t is of course clear that ... a judgment for no more than the actual medical expenses occasioned by the tort would be inadequate.” (Ibid.) On the other hand, a verdict may properly be rendered for an amount less than or equal to medical expenses in cases where, “even though liability be established, a jury . . . may conclude that medical expenses paid were not occasioned by the fault of the defendants.” (Id. at p. 559; see also Haskins, supra, 252 Cal.App.2d at p. 586 [an award “for the exact amount of, or even less than, the medical expenses is not necessarily inadequate as a matter of law, because in the majority of cases there is conflict on a variety of factual issues – whether plaintiff received any substantial injury or suffered any substantial pain, or whether the medical treatment was actually given or given as a result of the injuries, or reasonable or necessary”].)
The court’s review of the foregoing precedents lead it to conclude that this case fell squarely among those in which the jury verdict was found to be inadequate as a matter of law. “In Dodson’s case, the factual conflicts that Miller and Haskins tell us may justify the jury’s failure to award non-economic damages – whether the plaintiff received any substantial injury or suffered any substantial pain; whether medical treatment was actually given or was given as a result of the injuries; and whether the medical treatment was reasonable or necessary – were resolved by the jury in its special verdict. In Dodson’s case, we know – because the jury expressly decided – that J. Pacific’s negligence was a cause of Dodson’s injury, and that Dodson suffered economic damages ‘caused by the accident. . . .’ We know that he underwent surgery in which a herniated disc was removed and replaced with a metallic plate. We know the jury awarded damages, at least in part, for Dodson’s surgical expenses. A plaintiff who is subjected to a serious surgical procedure must necessarily have endured at least some pain and suffering in connection with the surgery. While the extent of the plaintiff’s pain and suffering is for the jury to decide, common experience tells us it cannot be zero.”
Because the award of damages was inadequate as a matter of law, the denial of a new trial on the issue of damages was an abuse of the trial court’s discretion. Accordingly, the judgment must be reversed and the matter remanded for a new trial limited to the issue of the amount of Dodson’s damages.
----Andrea Lynn Rice
In Dodson v. J. Pacific, Inc. 2007 Daily Journal D.A.R 13199, the Second Appellate District of the California Court of Appeal held that where a plaintiff has undergone surgery in which a herniated disc is removed and a metallic plate inserted, and the jury has expressly found that the defendant’s negligence was a cause of plaintiff’s injury, the failure to award any damages for pain and suffering results in a damage award that is inadequate as a matter of law.
Major Dodson (Dodson) was self-employed in the scrap metal business. He sued J. Pacific, Inc. for general negligence and premises liability in connection with an incident that occurred on December 12, 2002, while J. Pacific’s employees were loading large cylindrical pieces of scrap metal onto Dodson’s flatbed truck. During the loading process, a metal cylinder, weighing between four and five thousand pounds, slipped from the prongs of the forklifts, and fell onto and rolled off Dodson’s truck. Dodson, who was standing behind the truck when the cylinder slipped and began to roll, ran to avoid the rolling cylinder, tripped on pea gravel on the ground, and fell. He slid into several steel posts and struck the left side of his back and neck on the posts.
After the incident, the loading process, which took another hour and a half or so, was completed, and Dodson drove his loaded truck to his scrap metal yard and then to his home. The following day, he drove the loaded truck to Atlas Iron & Metal, where the scrap metal was unloaded.
Five days later, Dodson saw his primary physician, Dr. Tanya Arvan. Arvan’s notes showed Dodson stated that he had “pain in the knees and the knees give out,” but showed no other complaint. Dodson did not tell Dr. Arvan about his fall because he “didn't think it was that serious.” Some time later, he spoke to the manager at J. Pacific, telling him he thought he might need to see a doctor. The manager referred Dodson to a Superior Care facility. The facility took x-rays of Dodson’s neck, arms, legs and back. Dodson received physical therapy (heat treatments) for a month or so, and was referred to another doctor. Dodson continued experiencing pain, and fell on two additional occasions, on January 7, 2003 and January 24, 2003. On the latter occasion, Dodson was taken to the hospital and came under the care of Dr. Sasan Yadegar, a neurosurgeon. Dr. Yadegar recommended surgery and, on February 4, 2003, removed the herniated disk and arthritic joints and inserted a metallic plate. After the surgery, Dodson experienced a loss of equilibrium and “a lot of pain” in his arms, knees, neck and back, and used a walker for about nine months. Since then, he has used a cane. Dodson received physical therapy from June 2003 to May 2004, consisting of heat treatments and massages to the neck, back and knees.
In April 2004, Dodson filed this lawsuit. At the conclusion of trial, the jury rendered a special verdict. It found J. Pacific was negligent, and its negligence was a cause of Dodson’s injury. It further found Dodson suffered economic damages of $16,679 caused by the accident, but suffered no non-economic damages. The jury also found that 50 percent of the negligence causing Dodson’s injury was attributable to Dodson. Judgment was entered for Dodson in the sum of $8,339.50.
Dodson filed a motion for a new trial on the issue of non-economic damages or, in the alternative, an additur to the judgment in the amount of $150,000. The trial court denied the motion, ruling that the verdict “did not leave [Dodson] with an inadequate recovery on a fair consideration of the evidence”; no facts suggested passion, prejudice or corruption on the part of the jury; and Dodson “had a fair trial, and the jury awarded an ample sum in consideration of the entire record.” Dodson appealed, and the Court of Appeal reversed.
The court observed that, in some cases, courts have found jury awards which fail to compensate for pain and suffering inadequate as a matter of law. (E.g., Haskins v. Holmes (1967) 252 Cal.App.2d 580, 585-586 (Haskins ) [award insufficient where plaintiff sustained severe head injuries necessarily requiring surgery, but the trial judge awarded only $88.63 in excess of the plaintiff’s actual medical expenses, in effect “allowing nothing for pain and suffering”; it was “patently obvious” that “substantial pain, suffering, shock and inconvenience” necessarily and inevitably accompanied the injuries].) The courts have also stated, however, that an award that does not account for pain and suffering is “not necessarily inadequate as a matter of law”(id. at p. 586), and that “[e]very case depends upon the facts involved.” (Miller v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555, 558 (Miller ).)
The controlling rule, we believe, was best stated in Miller, which affirmed a jury verdict that made no allowance for pain and suffering. Miller distilled this principle from the precedents it reviewed: Cases finding an award inadequate for failure to account for pain and suffering “ involved situations where the right to recover was established and . . . there was also proof that the medical expenses were incurred because of defendant’s negligent act.” (Miller, supra, 212 Cal.App.2d at p. 558.) In such situations, Miller concluded, “[i]t is of course clear that ... a judgment for no more than the actual medical expenses occasioned by the tort would be inadequate.” (Ibid.) On the other hand, a verdict may properly be rendered for an amount less than or equal to medical expenses in cases where, “even though liability be established, a jury . . . may conclude that medical expenses paid were not occasioned by the fault of the defendants.” (Id. at p. 559; see also Haskins, supra, 252 Cal.App.2d at p. 586 [an award “for the exact amount of, or even less than, the medical expenses is not necessarily inadequate as a matter of law, because in the majority of cases there is conflict on a variety of factual issues – whether plaintiff received any substantial injury or suffered any substantial pain, or whether the medical treatment was actually given or given as a result of the injuries, or reasonable or necessary”].)
The court’s review of the foregoing precedents lead it to conclude that this case fell squarely among those in which the jury verdict was found to be inadequate as a matter of law. “In Dodson’s case, the factual conflicts that Miller and Haskins tell us may justify the jury’s failure to award non-economic damages – whether the plaintiff received any substantial injury or suffered any substantial pain; whether medical treatment was actually given or was given as a result of the injuries; and whether the medical treatment was reasonable or necessary – were resolved by the jury in its special verdict. In Dodson’s case, we know – because the jury expressly decided – that J. Pacific’s negligence was a cause of Dodson’s injury, and that Dodson suffered economic damages ‘caused by the accident. . . .’ We know that he underwent surgery in which a herniated disc was removed and replaced with a metallic plate. We know the jury awarded damages, at least in part, for Dodson’s surgical expenses. A plaintiff who is subjected to a serious surgical procedure must necessarily have endured at least some pain and suffering in connection with the surgery. While the extent of the plaintiff’s pain and suffering is for the jury to decide, common experience tells us it cannot be zero.”
Because the award of damages was inadequate as a matter of law, the denial of a new trial on the issue of damages was an abuse of the trial court’s discretion. Accordingly, the judgment must be reversed and the matter remanded for a new trial limited to the issue of the amount of Dodson’s damages.
----Andrea Lynn Rice
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