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Nielsen v. Port of Bellingham7/30/2001
asis, thereby failing to remedy a dangerous condition caused by the accumulation of algae on its wooden surface. The court's denial of the Port's motion for judgment as a matter of law on the basis of insufficiency of the evidence to establish breach of a duty was correct.
AWARD OF DAMAGES
The Port next argues that a new trial should have been granted because of an excessive award of damages. The jury awarded Nielsen $438,936.15 in non-economic damages. The Port relies on the following to show that the verdict is contrary to the evidence:
1. Plaintiff's special damages were only $11,063.85, which included approximately $8,000 in medical expenses and approximately $3,000 in lost wages{;}
2. Plaintiff was totally disabled from 1996 forward due to other injuries unrelated to her wrist injury {;}
3. Plaintiff's own assessment of her damages was $150,000. Appellant's Brief at 49.
'The determination of the amount of damages . . . is primarily and peculiarly within the province of the jury, under proper instructions, and the courts should be and are reluctant to interfere with the conclusion of a jury when fairly made.' Bingaman v. Grays Harbor Community Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985) (citing Baxter v. Greyhound Corp., 65 Wn.2d 421, 438, 397 P.2d 857 (1964)). 'An appellate court will not disturb an award of damages made by a jury unless it is outside the range of substantial evidence in the record, or shocks the conscience of the court, or appears to have been arrived at as the result of passion or prejudice.' Id. (citing Rasor v. Retail Credit Co., 87 Wn.2d 516, 531, 554 P.2d 1041 (1976)). However, the appellate court 'is tied to the written record {of the proceedings} and partly for that reason rarely exercises this power.' Id.
'Before passion or prejudice can justify reduction of a jury verdict, it must be of such manifest clarity as to make it unmistakable.' Bingaman, 103 Wn.2d at 836 (citing James, 79 Wn.2d at 870). Similarly, a damages award does not shock the conscience unless the award is 'flagrantly outrageous and extravagant{.}' Id. at 837 (citing Kramer v. Portland-Seattle Auto Freight, Inc., 43 Wn.2d 386, 395, 261 P.2d 692 (1953)).
We conclude that the evidence at trial provides substantial evidence to support the jury verdict of $438,936.15 in non-economic damages. Immediately after the accident, Nielsen's treating physicians could not place a cast on her arm for two days because of excessive swelling. After the doctors had cast her arm, they had to prematurely remove the cast because of the excessive swelling and pain. Even after six weeks, Nielsen continued to suffer pain from the swelling and stiffness.
Dr. Bergman, Nielsen's treating orthopedic surgeon, testified that Nielsen suffered a comminuted fracture to her wrist, which 'means the fracture goes into various pieces and the implication is the fracture's a little more significant, a little more prone to settling.' Report of Proceedings 1/11/00 at 228. He stated that 'in this particular case there was excessive swelling, excessive pain, that down the road began to become more obvious or evident.' Id. at 222. He testified that Nielsen suffered from reflex sympathetic dystrophy, an unusual condition that results in excess swelling, stiffness, and pain. Because of this condition, Nielsen had limited mobility, flexibility and strength in her right arm and hand, despite the healing of the fracture.
Dr. Bergman testified that this condition aggravated osteoporosis in her arm because '{i}f you're not using the bone{ }, it becomes weakened.' Id. at 236. Even one year after the accident, Nie
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