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BENNICH v. KROGER CO.8/30/1996
On Application for Rehearing
The opinion of June 21, 1996, is withdrawn, and the following opinion is substituted therefor. On May 17, 1990, Hester Bennich slipped and fell on the premises of the Kroger grocery store in Hartselle, Alabama. She and her husband sued the Kroger Company, alleging that negligence on its part had proximately caused her to fall and to incur personal injury . Mrs. Bennich sought damages for an alleged total hearing loss in her left ear, and Mr. Bennich sought damages for loss of consortium.
A jury returned a verdict for Mr. and Mrs. Bennich, awarding Mrs. Bennich $500, but awarding Mr. Bennich nothing. Mrs. Bennich moved for a new trial on two grounds: that the verdict was inadequate and inconsistent and that she had newly discovered evidence that warranted a new trial. The trial court denied the motion, and Mrs. Bennich appealed; Mr. Bennich did not appeal. We affirm.
Adequacy of the Verdict
Mrs. Bennich contends that the trial court erred by denying her motion for new trial, because, she claims, the verdict did not include an amount at least as high as her uncontradicted special damages, totalling nearly $13,000, as well as an amount sufficient to compensate her for pain and suffering. Mrs. Bennich claims that because evidence of her medical expenses was admitted without objection, her special damages were "uncontradicted."
A jury is not bound to award medical expenses merely because they were incurred. Brannon v. Webster, 562 So.2d 1337, 1339 (Ala.Civ.App. 1990)(jury verdict of $907, when plaintiff proved special damages in excess of $100,000, upheld). The fact that a plaintiff's medical bills are admitted into evidence without objection does not necessarily mean that they are undisputed; it may be that the jury believed the plaintiff's medical expenses were not incurred as a result of the defendant's negligence. Id. See also Stricklin v. Skipper, 545 So.2d 55 (Ala.Civ.App. 1988).
At trial, Kroger took the position that Mrs. Bennich's medical expenses were not incurred as a proximate result of her fall in its store on May 17, 1990, but were incurred as the result of a continuing and progressive hearing loss due to chronic adhesive otitis, a condition from which Mrs. Bennich had suffered for years before the fall. Where there is conflicting evidence as to the proximate cause of the plaintiff's injuries, it is for the jury to determine whether the plaintiff's medical expenses were caused by the defendant's negligence. Helena Chemical Co. v. Ahern, 496 So.2d 12, 15 (Ala. 1986).
Conflicts and weaknesses in the plaintiff's case may also be created through cross-examination of the plaintiff's witnesses. Brannon v. Webster, 562 So.2d at 1338. On cross-examination of Mrs. Bennich, Kroger's counsel elicited from her the fact that she had not told the jury of several other accidents that might have been the cause of her medical expenses. Kroger contended that the emergency room and X-ray charges that Mrs. Bennich incurred on May 17, 1990, were not the result of the fall in the Kroger store on that day, but were the result of other accidents that Mrs. Bennich admitted having had prior to May 17, 1990. Based on the evidence presented at trial, the jury could well have determined that only a portion of
Mrs. Bennich's emergency room and X-ray charges were attributable to her May 17, 1990, fall at the Kroger store.
The trial court did not err by not awarding a new trial on this ground.
Newly Discovered Evidence
On February 20, 1990, three months before her fall at the Kroger store, Mrs. Bennich had had a hearing test, or audiogram. On May 23, 1990, six day
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