The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. CV-00-105
CONSTANCE TRACY,
Plaintiff
v. DECISION AND ORDER
GONALDL. GARBRECHT
HANNAFORD BROTHERS CO., "LAW LIBRARY
Defendant APR S 22
This matter is before the court on plaintiff’s motion for additur or for new trial.
Plaintiff filed a complaint alleging negligence on the part of the defendant in the
movement of shopping carts by its employee in which she alleges defendant’s
employee struck plaintiff on her left heel, Achille’s area, with a shopping cart. The
matter was tried to a jury which rendered a verdict awarding plaintiff $8,612.61, the
same amount as her medical specials. The jury awarded plaintiff nothing for
permanent impairment.
Plaintiff complains that the jury verdict is inadequate arguing that since the jury
found negligence and causation as to her rnedical bills, it must have been operating
under some mistake in not awarding at least some damages for pain and suffering.
Plaintiff suggests this was because of a compromised verdict, the result of introduction
in evidence of plaintiff’s prior claims to her other foot, or some other unknown factors.
Defendant responds that plaintiff has not presented any evidence that the jury
verdict was the result of bias, prejudice or mistake of law. C.N. Brown Co. v. Gillen, 569
A.2d 1206 (Me. 1990). It argues that the jury could have concluded that only a part of
the plaintiff’s medical expenses relating in injury and awarded the balance in pain and
suffering. It further argues an issue of altered gait arising from injuries to the other leg
but, more importantly, defendant argues that there are no records of medical treatment
done for four months following the injury.
The striking of the plaintiff’s left heel area by defendant’s employee on
December 24, 1997, was disputed but even plaintiff testified it was not a strike with any
great force. Nevertheless, she did experience pain. In January of 1998, plaintiff's
daughter was being treated by a podiatrist. Through the daughter, information was
provided to plaintiff to treat the injury with physical therapy which was done. This
continued for a number of months without medical examination. In May of that year,
plaintiff accompanied her daughter to an appointment with the podiatrist at which time
she made an appointment for an examination. As a result of the examination and
diagnostic tests, the podiatrist determined that the plaintiff had suffered a bruise to an
area causing a rather unusual injury to the sheath or tunnel through which a ligament
or tendon in the foot traveled. It was this damage which was the subject of surgery by
the podiatrist and consequent recovery by the plaintiff. The only expert, the podiatrist,
attributed the injury to the tunnel to the bruise caused by the external trauma and
therefore suggested that his surgery and treatment was caused by the accident. The
liability issue appeared to be more seriously contested by the defendant than that of
damages.
The jury could have concluded that while the costs of medical treatment were
clearly caused by the accident, that the plaintiff’s ability to withstand the pain and
suffering for some five months was an indication of such a low level of discomfort that
it did not even motivate her to make an appointment with a medical doctor. The jury
could have concluded that plaintiff might not have even seen the podiatrist had she not
been in attendance with her daughter for her visit to the podiatrist. The jury could have
concluded that the plaintiff’s previous injuries to her other foot were indications of
plaintiff's susceptibility to foot injury and thereby minimized her damages. The
question before this court is whether there is no rational basis upon which the amount
of the award may be supported. Jamshaidi v. Bowden, 366 A.2d 522 (Me. 1976).
It is the duty of the court in the case of inadequate damages to set aside the
verdict if the jury disregards the evidence or acts with passion or prejudice. Chenell v.
Westbrook College, 324 A.2d 735 (Me. 1974). In considering the jury’s verdict, this court
must consider the evidence in a light most favorable to the party against whom the
motion to set aside the verdict is pressed. Chenell v. Westbrook College, at 737. While the
court is constrained not to set aside a verdict unless it is apparent that the jury acted
under some bias, prejudice, or improper influence or had made some mistake of fact or
law, it is also true that if the court is satisfied that reasonable men will agree that the
jury’s finding is irrational on the basis of the evidence considered in a light most
favorable to the party against whom the motion to set aside the verdict is pressed, the
court is under a duty to disturb the verdict. Chenell v. Westbrook College, at 737.
The court’s analysis of the jury verdict is this: The primary issue in this case was
liability. Defendant’s employee denied that she had moved the shopping carts with a
lot of force or at a great rate. She testified she was pushing the maximum number of
shopping carts consistent with defendant’s policy. While she agreed that one cart may
have come loose, it would have been moving forward at minimum force and she
believes she retrieved the cart before striking the plaintiff. She saw no evidence of
plaintiff’s injury but felt a duty to report the complaint. Inasmuch as the jury awarded
plaintiff an amount equaling her medical specials, to the penny, the court is satisfied that
the jury found negligence on the part of the defendant and a causal relationship
between the bruise to her foot and being struck by the shopping cart. There was no
evidence to contradict the opinion of the expert that the damage he surgically repaired
was caused by the trauma and that plaintiff underwent procedures post-surgery to
rehabilitate and restore her foot. There is no evidence to contradict that plaintiff
suffered some underlying discomfort prior to the surgery and thereafter. It does not
appear to this court that the jury could have concluded the liability issue and limit it to
her medical specials under all the circumstances of this case notwithstanding the delay
in medical treatment or the previous injuries to her other foot. Such a conclusion in the
verdict could only be the result of compromise.
The Chenell court at 738 quotes from Goodsell v. Seeley, 46 Mich. 623, 10 N.W. 44
as follows:
It is no doubt true that juries often compromise . . . and that by splitting
differences they sometimes return verdicts with which the judgment of no
one of them is satisfied. But this is an abuse. The law contemplates that
they shall, by their discussions, harmonize their views if possible, but not
that they shall compromise, divide and yield for the mere purpose of an
agreement. The sentiment of notion which permits this tends to bring
jury trial into discredit, and convert it into a lottery.
The plaintiff suffered some discomfort. In its jury charge, the court instructs the
jury that it first must decide the liability issue. Once having done that, they should
consider any bodily injuries sustained and the special damages as a result. The jury is
then instructed, “Second, you should award her reasonable compensation, to the extent
proven by a preponderance, for any pain, discomfort, fear, anxiety, other mental and
emotional distress, or anguish, including the loss of enjoyment of life suffered by
plaintiff in the past, and that you find you can reasonably expect her to suffer in the
future.” (Emphasis supplied). The court must assume that the jury understood the
instructions and its obligations under the law. Having found plaintiff’s injuries to be the
result of defendant’s negligence, it could not reasonably distinguish between damages
unless it compromised a highly disputed liability issue with the damages.
The entry will be:
Plaintiff’s motion for additur or for new trial is GRANTED; the
court ORDERS an additur to the jury verdict of $10,000; if the defendant so
agrees, judgment is entered in the amount of $18,612.61; if the defendant
does not agree, the court vacates the judgment of November 15, 2001,
and new trial is ORDERED. :
Dated: March_(@ _, 2002 abn
Donald H. Marden
Justice, Superior Court
Date Filed 5/31/00 Kennebec Docket No. __CV00-105
County oo,
Action Property Negligence J. MARDEN
Constance Tracy vs. Hannaford Brothers, Co.
Plaintiff's Attorney Defendant’s Attorney
Walter F. McKee, Esq.
227 Water Street
P.O. Box 1051
Augusta, Maine 04330 / ole
-Frederick F. Costlow, Esq. (6/9/00)
One Merchants Plaza
P.O. Box 2429
Bangor, Maine 04402-2429
Date of
Entry
5/31/00 Complaint, filed. s/McKee, Esq.
Case File Notice mailed to atty.
Original Summons with return service made upon Hannaford Brothers, Co., filed.
Notice of Deposition Under M.R.Civ.P.30(b)(6), filed. s/McKee, Esq. (copy)
6/9/00 Answer and Affirmative Defenses of Defendant, filed. s/Costlow, Esq.
6/12/00 SCHEDULING ORDER, Marden, J.
"Scheduling Order filed. Discovery deadline is February 12, 2001."
Copies mailed to attys of record.
------ Notification of discovery Service, filed. s/Costlow, Esq.
Defendant's Objection to Plaintiff's Notice of Deposition Pursuant to
M.R.Civ.P. 30(b)(6) served on Walter McKee, Esq. on 6/9/00
Notification of Discovery Service, filed. s/Costlow, Esq.
Defendant's Request for Production of Documents Propounded to Plaintiff
served on Walter McKee, Esq. on 6/8/00
6/12/00 Original summons with return service on Hannaford Bros Co on 6/1/2000 filed.
s/McKee Esq
6/15/00 Notification of Discovery Service, filed. s/Costlow, Esq.
Defendant's Interrogatories Propounded to Plaintiff served on Walter McKee,
Esq. on 6/13/00 , ,
Notification of Discovery Papers, filed. s/McKee, Esq.
Plaintiff's Objection to Defendant's Request for Production of Documents
served on Frederick F. Costlow, Esq. on 6/14/00
6/19/00 Notice of discovery service filed. s/McKee Esq
Plaintiffs objections to defendants interrogatories served on Frederick
F Costlow Esq on 6/15/00
6/28/00 Notice of discovery service field. s/McKee Esq
Amended notice of deposition of Hannaford Brothers Co served on
Frederick F Costlow Esq on 6/26/00