 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Matthews v. Food Lion12/7/1999
Filed: 7 December 1999
Appeal by defendant from judgment entered 19 August 1998 by Judge Orlando Hudson in Lee County Superior Court. Heard in the Court of Appeals 25 October 1999.
This case arises from a slip-and-fall incident that occurred on 31 March 1997. While grocery shopping at one of defendant's stores, plaintiff slipped in a "puddle of liquid" and fell to the floor. She thereafter instituted a negligence action against defendant, claiming pain and permanent injuries to her back, leg, and foot. From a jury verdict for plaintiff in the amount of $297,600, defendant appeals.
Defendant first argues that the trial court erred by instructing the jury that it could award damages for permanent injury , future pain and suffering, and future medical expenses. In her complaint, plaintiff specifically sought damages for permanent injury. Defendant contends that the evidence did not warrant an instruction as to the permanency of plaintiff's injury. We disagree.
" he trial court must instruct on a claim or defense if the evidence, when viewed in the light most favorable to the proponent, supports a reasonable inference of such claim or defense." Wooten v. Warren, 117 N.C. App. 350, 358, 451 S.E.2d 342, 347 (1994). With respect to the evidence sufficient to warrant an instruction as to permanency, our Supreme Court has made the following remarks:
To warrant an instruction permitting an award for permanent injuries, the evidence must show the permanency of the injury and that it proximately resulted from the wrongful act with reasonable certainty. While absolute certainty of the permanency of the injury and that it proximately resulted from the wrongful act need not be shown to support an instruction thereon, no such instruction should be given where the evidence respecting permanency and that it proximately resulted from the wrongful act is purely speculative or conjectural.
Short v. Chapman, 261 N.C. 674, 682, 136 S.E.2d 40, 46-47 (1964). Thus, a permanency instruction is proper if there is sufficient evidence both as to (1) proximate cause and (2) the permanent nature of any injuries. There was sufficient evidence as to both requirements here.
As to the proximate cause requirement, plaintiff's expert, Dr. Ebken, testified as follows:
Q: And do you have an opinion based on a reasonable degree of medical certainty as to whether or not Ms. Matthews' fall at Food Lion on March 31, 1997, approximately caused her herniated disk and result of surgery performed by Dr. Shupeck?
A: I do and I think it did.
(Tr. at 288). As to the permanency requirement, Dr. Ebken went on to testify as follows:
Q: Do you have an opinion, Dr. Ebken, based on a reasonable degree of medical certainty, as to whether Ms. Matthews will continue to experience pain in her back, leg, and foot, or continue to experience problems with her back for the rest of her life as a result of injuries she sustained in her fall of March 31, 1997?
A: I do.
[Objection; overruled.]
Q: And what is that opinion, Dr. Ebken?
A: I do think it's more likely than not that she will.
(Tr. at 288-89). The fact that Dr. Ebken used the phrase "more likely than not" instead of "reasonably certain" is of no consequence. See Pruitt v. Powers, 128 N.C. App. 585, 589-90, 495 S.E.2d 743, 746, disc. review denied, 348 N.C. 284, 502 S.E.2d 848 (1998). Dr. Ebken's testimony then, when read in the light most favorable to plaintiff, did provide sufficient evidence to warrant an instruction as to permanent injury .
Defendant nonetheless points to Dr. Ebken's
Page 1 2 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|