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TAMPLIN v. STAR LUMBER & SUPPLY CO.12/31/1991
In a personal injury action tried to a jury, plaintiff was awarded $723,150.81, based on the negligence of defendant
Star Lumber & Supply Company, Inc. (Star Lumber). Star Lumber appeals the trial court's denial of its motion for a new trial.
Ann Marie Tamplin was six years old at the time she was injured and nine when the case was tried. Ann's parents had gone to a Star Lumber store to look at Formica for a dining room table. While there, a roll of vinyl flooring fell, striking Ann on the head and knocking her to the cement floor. The roll was approximately 6 feet long and weighed about 150 pounds. Star Lumber stored its rolls of vinyl flooring by standing them on one end next to a wall.
The injuries to the victim caused her to bleed through her mouth, nose, and ears; she also vomited blood. Testimony indicated that the pool of blood and water around Ann was probably 5-6 feet in diameter. When Ann was brought into the emergency room, she was initially considered to be in a life-threatening condition, but her condition stabilized. Her skull was fractured in three places, and her eardrum was perforated. After Ann was released from the hospital, later tests determined that her pituitary gland was injured.
As a result of her pituitary gland injury, Ann has a permanent condition known as diabetes insipidus. This is not the more commonly known form of diabetes which is treated with insulin. Ann's condition causes her to urinate quite frequently. She must take a medicine, DDAVP, twice a day to regulate this. Were Ann ever without her medicine and unable to drink the large quantities of water she would require as a result of the frequent urination, she would die.
The medicine is a liquid form which Ann must inhale through her nose or have her parents assist her by blowing the medicine up her nose. Testimony indicated that it embarrasses Ann to take her medicine in front of her friends. Testimony was admitted that when the dosage of medicine needs to be adjusted, Ann does not sleep well because she must get up to go to the bathroom and get a drink frequently. As a result of these restless nights, she will sometimes be found sleeping when other children are out playing. Other testimony indicated Ann was, overall, a normal, active child.
The product label that comes with the DDAVP states that the medicine must be kept refrigerated. As a result, Ann's parents
have to make special arrangements on trips to keep the medicine refrigerated and Ann has had to forego activities like Brownie camp because of her medicine. However, defendant's expert testified that the caution regarding refrigeration may be safely ignored.
One of plaintiff's expert witnesses testified that there is a very slight chance that when it is time for Ann to go through puberty, her pituitary gland will not produce the necessary chemical to trigger sexual maturation. This testimony was admitted, and the jury was instructed that this possibility was too remote and speculative for money damages to be awarded. The jury was instructed to consider such testimony "only as it may bear on the mental anguish, if any, suffered by Ann Marie Tamplin because of the slight possibility that she may not develop normally."
The jury found that Ann's parents were 5% at fault and that Star Lumber was 95% at fault. It awarded $761,211.38 in damages. The trial court entered judgment for the plaintiff in the amount of $723,150.81. Star Lumber timely appeals, asserting that the trial was not fair and it should be granted a new trial. Additional facts will be brought out as necessary.
The first issue on appeal is whether a new trial shoul
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