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Bowers v. Sprouse10/31/1997
t of the trial court is reversed only upon a determination that the trial court abused its discretion. Johnson v. Smith, 241 Va. 396, 400, 403 S.E.2d 685, 687 (1991). Applying these principles, I would affirm.
As recognized by the majority, the record shows that the defendant aggressively cross-examined the plaintiff's witnesses in order to challenge the plaintiff's assertion that all of her injuries resulted from the rear-end collision. In addition to the evidence recited in the majority opinion, the defendant introduced the original treatment notes of plaintiff's physician which indicated that she had suffered a back injury in a previous accident involving a truck, that the injury had not been completely resolved, and that the instant collision aggravated that injury. The defendant also introduced evidence to show that the force of the collision was minimal, that there was no discernable damage to plaintiff's car, and that no medical treatment was undertaken at the scene of the collision. Finally, the plaintiff admitted that, subsequent to the collision, she was a passenger in an all-terrain vehicle which flipped over. This evidence can only be considered as evidence controverting the plaintiff's claim that all her injuries were caused by the rear-end collision.
The trial Judge, in refusing to set aside the verdict as inadequate, stated that the jury could have concluded that, in the plaintiff's fall from the all-terrain vehicle, she could have hurt other parts of her body, including the injury involved in this case, and thus, the jury "could have not attributed all the damages to this accident and attributed the rest to pain and suffering." The trial court, following the instruction of Bradner, reviewed the evidence in the case to determine whether the plaintiff's evidence of special damages was uncontroverted and determined that it was not. Thus, the trial court concluded that the amount of special damages had not become a fixed part of the recovery. Accordingly, the trial court held that the verdict was not inadequate as a matter of law. Based on this record, I cannot conclude that the trial court abused its discretion in denying the plaintiff's motion to set aside the jury verdict as inadequate and, therefore, I would affirm the judgment of the trial court.
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