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Griffin v. KMart Corp.11/28/2000
e exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La. 1993). A reviewing court might well disagree with the amount of the award fixed by the jury, but it is not entitled to substitute its opinion for that of the trier of fact. Appellate review of awards for damages in the trial court is limited to determining whether the trial court abused its discretion. When a jury fixes an award, and that award is not disapproved by the trial judge, the action of the trial court is entitled to much respect, and should be upset only when it can be demonstrated that the jury abused its discretion. Spillers v. Montgomery Ward & Co., Inc., 294 So.2d 803, 809 (La. 1974).
Applying these principles in the case before us, we are unable to find that the jury committed an abuse of the great discretion granted it in fixing damage awards.
Griffin testified that Brown's "shooting" her startled and frightened her; she described his "shooting" of her daughter as "the most horrible experience I've ever experienced in my life, to see my child shot." However, she did not seek medical care or counseling, nor did she describe significant symptoms of emotional or physical distress. She said the effect of the incident is that she doesn't go to many stores and she is apprehensive about going anywhere near a sporting goods department.
Chivleatto testified she really thought she had been shot and started immediately screaming, "Get me out of here." Her chest hurt and she had difficulty breathing. She had to have the timing of her pacemaker reset. She sought psychiatric counseling. She admitted, however, that she was in counseling previously due not only to her son's death but also because of marital problems. She also stated that she stopped working as a practical nurse not because of the Kmart incident, but because the facility at which she was employed closed.
Kermit Chivleatto, Sr. testified he has been married to Beverlee Chivleatto for 21 years. He said the incident at Kmart "put a very big strain on them" and that it got to the point where he could do nothing right. He admitted that the couple had marital and sexual problems before this incident, but said "it was coming around," but this incident "just shut it off completely" again.
Reviewing these facts in connection with the principles enunciated above, we find no manifest error in jury's finding as to the extent of damage suffered by the plaintiffs individually, which is based partly on the jury's credibility determinations of the witnesses, nor do we find abuse of discretion in the amounts.
DECREE
For the foregoing reasons, we amend the judgment to provide that Kmart Corporation is cast for one hundred percent (100%) of the damages awarded. In all other respects the judgment is affirmed. The party are each cast with their own costs for this appeal.
AMENDED AND AFFIRMED.
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