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Parker v. First American Corp.3/6/2000
This appeal involves the jury's assessment of damages arising out of a premises liability case. Finding the plaintiff to be 49% at fault and the defendant to be 51% at fault, the jury awarded to the plaintiff 51% of the damages that it had assessed. On appeal, the plaintiff argues that the jury's damage award is not supported by material evidence in that it does not include damages for pain, suffering and loss of enjoyment of life. We agree with the plaintiff. Therefore, we reverse the jury's award as to damages and remand this case for a new trial only on the issue of damages.
I. Facts
In May of 1996, Virginia Parker fell and injured her ankle as she was entering a branch of First American Bank in Nashville. Ms. Parker, the plaintiff here, brought suit against the defendant bank charging the bank with negligence in the creation of a dangerous condition on its premises. During the jury trial that followed, there was proof of liability as well as of the expenses incurred and pain suffered by Ms. Parker due to her injury .
Uncontroverted proof was presented with regard to the effect of Ms. Parker's injury . Ms. Parker testified that she was in severe pain at the time of her fall. She was initially treated by the placement of a cast on her ankle which remained for six weeks. During this period, she was confined to her home where she could do little but eat and watch television. After the cast was removed, Ms. Parker did not significantly improve. It was Ms. Parker's testimony that between June of 1996 and May of 1997, she had difficulty performing daily tasks such as working, performing household duties, climbing stairs and engaging in recreational activities.
In the summer of 1997, Ms. Parker attended physical therapy but her ankle remained painful and swollen. Finally, in October of 1997, under the care of Dr. Allen Henson, Ms. Parker underwent surgery to remove a broken bone in her ankle which had not yet healed. Following surgery, she testified that she again experienced pain and that she was limited in her activities for an additional four weeks. However, the surgery remedied her problem and, eventually, she was able to return to her active lifestyle. As of the date of trial, she testified that her ankle was still "tender to touch and [there was still] pain that shoots up leg." Ms. Parker's testimony with regard to her pain and limited ability to function was corroborated by the testimony of her husband as well as that of Dr. Henson.
A list of Ms. Parker's medical expenses was entered at trial as exhibit 13. This list reflected that the sum total of her expenses as of November 10, 1997 was $7890.90. Ms. Parker testified that, other than a $212 charge for the removal of her cast, this list was a complete and accurate account of her expenses. The $7890.90 total in exhibit 13 included $2340 for Dr. Henson's treatment of Ms. Parker. However, in his deposition, Dr. Henson testified that $2575 was the total amount that he billed Ms. Parker. Dr. Henson testified that $2575 was a necessary and reasonable charge for his services.
The case was tried before a jury on April 27 and 28 of 1998. In its initial jury charge, the trial judge did instruct the jury that " he amount of such award shall include . . . pain and suffering. Reasonable compensation for any physical pain and suffering . . . suffered by the Plaintiff, Mrs. Parker, of which her injury was the legal cause. . . . [and n]ext, the loss of enjoyment of life. Reasonable compensation for loss of enjoyment of life suffered by Mrs. Parker and of which her injury was the legal cause." Following the jury charge and during the course of deliberation, the jury returned to the court room
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