 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Pomeroy v. Illinois Central Railroad Co.5/19/2005
Under the facts of this case, even assuming any error on the part of the trial court in omitting a separate and distinct finding of proximate cause from the verdict form, such error was harmless.
Finally, Illinois Central asserts the trial court erred by instructing the jury that Mr. Pomeroy could recover loss of enjoyment as a separate, independent element of damages. We note that the instruction as reproduced in Illinois Central's brief lists the damages for which a plaintiff is entitled to cover, including "future loss of capacity for the enjoyment of life." We disagree with Illinois Central, however, that "future loss of capacity for the enjoyment of life" was enumerated as "a separate, independent element of damages" rather than as an "included element of the measure of damages for physical injury ," as Illinois Central contends. The trial court's instructions characterized damages as "economic" and "non-economic," and included future loss of capacity for the enjoyment of life as one of several non- economic damages. The court further instructed, " ou are not permitted to award speculative damages, which means compensation for future loss or harm which, although possible, is conjectural or not reasonably certain; however, you should compensate a plaintiff for any loss or harm, which is reasonably certain to be suffered as a legal result of the injury in question." The trial court also instructed the jury that, if it determined Mr. Pomeroy's injuries were aggravation of a pre-existing condition, it "should determine . . . what portion of the plaintiff's condition resulted from the aggravation and . . . make allowance in verdict only for the aggravation."
We find no error in the trial court's instructions regarding liability, causation, or damages under FELA. This issue is without merit.
Plaintiff's Closing Argument
Illinois Central contends the trial court erred in permitting counsel for Mr. Pomeroy to go outside of the proof in presenting a mathematical formula to calculate damages to the jury during closing argument. Upon review of the closing arguments, we observe that the "formula" for future pain and suffering to which Illinois Central objects amounts to a "calculation" by counsel that Mr. Pomeroy will work ten hours per day for about 250 work days per year for ten years with permanent injuries that resulted from his fall, including a fractured vertebra in his spine.
Illinois Central submits that there was no proof presented as to any calculation that a jury could make to guess the value of Mr. Pomeroy's pain and suffering, and that no evidence or testimony was presented that could be used to determine damages for future pain and suffering. It further submits that allowing Mr. Pomeroy's counsel to present this formula in his closing argument was contrary to the court's own instructions to the jury. Illinois Central relies on this Court's opinion in Underwood v. Waterslides of Mid-America, Inc., 823 S.W.2d 171 (Tenn. Ct. App. 1991), for the proposition that this error results in a mistrial and that, accordingly, the trial court erred in denying its motion for a new trial.
We disagree with Illinois Central's application of Underwood to this case. The trial court must exercise sound discretion in controlling the arguments of counsel. Underwood, 823 S.W.2d at 184. In Underwood, we observed that this Court will not interfere with the trial court's determination in refusing a mistrial based on an unwarranted argument by counsel unless it resulted in prejudice to the opposing party that could not be removed by sustaining an objection made by opposing counsel. Id. Further, we noted that an adequate curative instruction to the jury could re
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Tennessee Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|