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Onstad v. Payless ShoeSource8/24/2000
correctly instructed that if Luplow's criminal act against Onstad was a superseding, intervening cause of her injury, Payless could avoid liability. Citing Skelton v. Great Northern Ry. Co. (1940), 110 Mont. 257, 100 P.2d 929, Payless states that when a trial court gives conflicting and confusing jury instructions, it commits reversible error.
46 In addition to taking the position at trial that Luplow's attack on Onstad was a superseding, intervening cause, Payless also placed blame for the attack on the Billings police department's low-key response to the two earlier "flashing" incidents. Payless's counsel argued both theories during closing argument. Instruction No. 19 was appropriate as to the police department defense, and Instruction Nos. 16 and 18 were appropriate as to the defense that Luplow's attack was a superseding, intervening cause.
47 Additionally, nothing in the record indicates that the jury was confused by the instructions given. During deliberations, the jury sent out no written questions to the court. It deliberated less than two hours before unanimously agreeing on its answers to the six special verdict questions. We hold that the District Court did not give erroneously conflicting instructions as to causation and superseding, intervening cause.
Issue 4
48 Is the compensatory damage award excessive and unsupported by the evidence?
49 Payless points out that the evidence of Onstad's special damages was limited to testimony that she may incur future counseling expenses of between $9,000 and $18,000. Notwithstanding that her ambulance and hospital expenses incurred immediately following the assault were paid through workers' compensation, Onstad has taken the position that she does not seek damages for any physical injury . Payless argues that the "limited" testimony from psychologist Martin, counselor Crummet, Onstad herself, and Onstad's mother does not support the amount of general damages awarded, especially when viewed in comparison with damages awarded in other reported cases involving severe burns, chronic pain, life-long disabling conditions, and posttraumatic stress.
50 Damages must in all cases be reasonable. Section 27-1-302, MCA. "Thus, an award must be reduced when it substantially exceeds that which the evidence can sustain." Maurer v. Clausen Distributing Co. (1996), 275 Mont. 229, 237, 912 P.2d 195, 199. However, this Court's scope of review of jury verdicts is limited. The amount to be awarded as damages is properly left to the jury, and the court on appeal will not substitute its judgment for that of the jury-particularly where, as here, the trial court has approved the verdict by denying a new trial. Only when the amount awarded is so grossly out of proportion to the injury as to shock the conscience will an appellate court intervene. Frisnegger v. Gibson (1979), 183 Mont. 57, 598 P.2d 574, following Salvail v. Great Northern Ry. Co. (1970), 156 Mont. 12, 473 P.2d 549.
51 In the present case, Onstad testified at trial about her terror during Luplow's attack. In her written statement made following the attack, she said, "I was so afraid during this whole time. I honestly think he was going to rape me and then kill me." Onstad's mother testified that following the attack, Onstad withdrew from college, returned to live with her parents, and, for the next several months, "was very withdrawn. She slept a lot. She didn't sleep at night, but during the day she just continued sleeping a lot. She went nowhere. She didn't visit with friends.
She was scared and totally not herself. She was just kind of totally withdrawn." In addition, Dr. Martin testified that as a result of the att
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