Sarah Beth Clingan Overstreet v. Shoney's, Inc.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE FILED
June 4, 1999
Cecil Crowson, Jr.
SARAH BETH CLINGAN OVERSTREET, ) Appellate Court Clerk
)
Plaintiff/Appellee, )
) Putnam Circuit
VS. ) No. J-5125
)
) Appeal No.
SHONEY’S, INC., ) 01A01-9612-CV-00566
)
Defendant/Appellant. )
APPEAL FROM THE CIRCUIT COURT FOR PUTNAM COUNTY
AT COOKEVILLE, TENNESSEE
THE HONORABLE JOHN TURNBULL, JUDGE
For the Plaintiff/Appellee: For the Defendant/Appellant:
John K. Maddin, Jr. Lawrence E. Levine
Malcolm L. McCune Levine Mattson Orr & Geracioti
Maddin Miller & McCune Nashville, Tennessee
Nashville, Tennessee
Jim H. Camp
William A. Cameron Sparta, Tennessee
Cameron & Chaffin
Cookeville, Tennessee
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves a freakish accident in which a shard from a broken dinner
plate caused a restaurant patron to lose the sight in her left eye. The patron and her
husband filed suit against the waitress who dropped the plate and the restaurant in the
Circuit Court for Putnam County seeking damages for her injuries and for his loss of
consortium. Following a three-day trial, the jury awarded the patron $2,013,000. On
this appeal, the restaurant takes issue with several of the trial court’s evidentiary
rulings, the trial court’s verdict form, and the trial court’s refusal to grant a remittitur.
We affirm the judgment.
I.
Sarah Beth Clingan Overstreet received her graduate nursing degree from
Tennessee Technological University in Cookeville in May 1993. One month later,
she went to work for Cookeville General Hospital. Because of her professors'
encouragement, Ms. Overstreet planned to pursue an advanced nursing degree. She
was also engaged to be married and had set an October 1993 wedding date.
On July 22, 1993, Ms. Overstreet and her fiancee decided to eat a late supper
at the Shoney’s Restaurant on Willow Road in Cookeville. Approximately fifteen
feet from where Ms. Overstreet was seated, a server, who was serving other
customers, held an iced tea pitcher in one hand and a serving tray with two ceramic
dinner plates in the other. The server placed the pitcher on the lid of a partially open
ice bin. As the pitcher began to fall from the ice bin, the server grabbed for it, and in
the process, the two dinner plates fell from her tray and broke on the floor. A shard
from one of the broken plates struck Ms. Overstreet in her left eye.
Ms. Overstreet heard the plates fall and immediately “felt something hot in my
left eye.” At first she thought it might be a piece of food or her contact lens, but
when she saw blood on her napkin and her white blouse, she knew she had been cut.
The wound was very painful, and Ms. Overstreet went into shock. She was treated
initially in the emergency room at Cookeville General Hospital where it was
discovered that the shard had cut her eye and that vitreous gel was protruding from
the wound. Ms. Overstreet was quickly transferred to Vanderbilt University Hospital
where surgeons closed the laceration. She remained hospitalized for several days on
a regimen of antibiotics.
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The Vanderbilt physicians feared that the retina of Ms. Overstreet’s left eye
would become detached and cause blindness in that eye. When the retina eventually
detached, Ms. Overstreet underwent four additional surgeries in an attempt to
stabilize her retina and save the sight in her left eye. The scar tissue that formed after
each surgery prevented the retina from remaining in its normal position. The fourth
surgery was an experimental procedure in which silicon oil was injected directly into
the eye through tiny incisions. Ms. Overstreet experienced significant pain and
discomfort during the five-month period when these surgeries were being performed.
She also suffered psychologically as her ability to see through her left eye gradually
deteriorated. As she described it, “[t]he last time that I saw anything was a little bitty
pinhole of light in motion and it kept getting smaller and smaller and then there
wasn’t any more.”
In March 1994, Ms. Overstreet underwent a fifth surgical procedure to relieve
her pain and headaches and the irritation in her eye. The physician removed the
experimental silicon oil and scraped calcium deposits from her cornea. Today, Ms.
Overstreet is blind in her left eye. Her left eye also looks abnormal because it is red
and irritated and because it is noticeably smaller than her right eye.
The injury to Ms. Overstreet’s eye affects not only her vision but also her life.
Her loss of vision dealt a tremendous blow to her self-confidence and to her
perception of herself. Ms. Overstreet’s psychologist diagnosed her as suffering from
post-traumatic stress syndrome. For her part, Ms. Overstreet stated that she no longer
likes herself and that she has changed from an outgoing, strong, and confident person
to someone who does not want to leave the house. She has nightmares, sleep
disorders, crying spells, and poor concentration and low self-esteem.
Ms. Overstreet has continued to work as a nurse; however, her clinical skills
and outlook for further education and professional advancement have dwindled.
While at one time she excelled at clinical care, she now finds it difficult to perform
even the most basic procedures. She has difficulty measuring medicines or giving
intravenous injections because of her loss of depth perception. She also becomes
fatigued when she inputs clinical information into the computer. She now works the
night shift because it is less busy than the day shift and she has declined offers to
transfer to more acute care areas because of her concern that one of her errors might
hurt a patient. An expert rehabilitative counselor has determined that Ms. Overstreet
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is vocationally disabled in light of the physical and emotional requirements of
nursing. As a result of the injury to and disfigurement of her eye, Ms. Overstreet has
changed from an accomplished, motivated, and confident person whose prospects
seemed endless to a person who is thankful just to get through another day.
In January 1994, Ms. Overstreet and her husband filed a negligence action in
the Circuit Court for Putnam County against Shoney’s and the server who dropped
the dishes. Prior to trial, Ms. Overstreet's husband also voluntarily dismissed his
claims against both Shoney’s and the server because he was not married to Ms.
Overstreet when she was injured. Ms. Overstreet likewise voluntarily dismissed her
claims against the server. Following a three-day trial in March 1996, a jury returned
a verdict against Shoney’s for $2,013,000. Shoney’s perfected this appeal after the
trial court denied its motion for a new trial and/or a remittitur.
II.
THE SUFFICIENCY OF MS. OVERSTREET’S PLEADINGS
Shoney’s first seeks to undermine the verdict by attacking the sufficiency of
Ms. Overstreet’s pleadings. It asserts that it could not be held responsible for the
negligent acts of its server because Ms. Overstreet’s complaint did not specifically
allege the doctrine of respondeat superior. Shoney’s reasons that Ms. Overstreet’s
decision to dismiss her claims against its server had the legal effect of undermining
her claims against Shoney’s. This argument is without merit because Shoney’s
stipulated that the server was acting within the scope of her employment when Ms.
Overstreet was injured and that any negligence on the part of the server was
chargeable to Shoney’s.
A stipulation is an agreement between counsel regarding business before the
court, see State v. Ford, 725 S.W.2d 689, 691 (Tenn. Crim. App. 1986), which is
entered into mutually and voluntarily by the parties. See State v. Morris, 641 S.W.2d
883, 889 (Tenn. 1982). A stipulation obviates the need for evidence regarding the
stipulated matters. See Hunter v. Burke, 958 S.W.2d 751, 755 (Tenn. Ct. App. 1997).
Although the parties may not stipulate to questions of law, see Mast Adver. & Publ'g,
Inc. v. Moyers, 865 S.W.2d 900, 902 (Tenn. 1993), stipulations within the range of
possibly true facts and valid legal strategies are allowed. See Mast Adver. & Publ'g,
Inc. v. Moyers, 865 S.W.2d at 902.
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A stipulation regarding an agent acting within the scope of his or her
employment may be based on a party’s admissions of fact. See Steiner-Liff Iron and
Metal Co. v. Woodmont Country Club, 480 S.W.2d 533, 537 (Tenn. 1972). On
appeal, stipulations are binding on the parties and may not be altered. See Bearman
v. Camatsos, 215 Tenn. 231, 236, 385 S.W.2d 91, 93 (1964); First Southern Trust Co.
v. Sowell, 683 S.W.2d 680, 681 (Tenn. Ct. App. 1984).
In this case, Shoney’s stipulated first at a pre-trial conference and then at trial
that its server was acting within the scope of her employment with Shoney’s when
Ms. Overstreet was injured and that the server’s negligence, if any, could be
attributable to Shoney’s under the theory of respondeat superior. This issue was
established by the server’s undisputed testimony and was included in the instruction
to the jury without objection from Shoney’s. Relying on this stipulation, Ms.
Overstreet voluntarily non-suited her claim against the server. After agreeing to
stipulate this issue at trial, Shoney’s cannot now complain that Ms. Overstreet’s
pleadings are deficient.
III.
THE TRIAL COURT’S EVIDENTIARY RULINGS
Shoney’s takes issue with two of the trial court’s evidentiary rulings. First, it
asserts that the trial court should not have permitted Ms. Overstreet to present
evidence concerning her plans to pursue an advanced nursing degree. Second, it
argues that the trial court erred by preventing it from cross-examining Ms. Overstreet
concerning the results of an evaluation performed when she was an extern at
Cookeville General Hospital between her second and third years of nursing school.
We find no error with the trial court’s decisions on both issues.
One of the trial court’s essential responsibilities is to control the flow of
evidence to the jury by ruling on the admissibility of evidence, controlling the order
of the proof, and determining the scope of examination of the witnesses. See Castelli
v. Lien, 910 S.W.2d 420, 425 (Tenn. Ct. App. 1995). A trial court has a wide degree
of latitude in making these decisions. See Hunter v. Burke, 958 S.W.2d at 755;
Steele v. Ft. Sanders Anesthesia Group, Inc., 897 S.W.2d 270, 275 (Tenn. Ct. App.
1994). Accordingly, questions concerning the admissibility of evidence address
themselves to the trial court’s discretion, and the appellate courts will overturn the
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trial court’s decisions only on a showing of abuse of discretion. See Otis v.
Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992); Scott v. Jones
Bros. Constr., Inc., 960 S.W.2d 589, 594 (Tenn. Ct. App. 1997).
Objections to the introduction of evidence must be timely and specific. They
must be made contemporaneously with the objectionable testimony, see Burchett v.
Stephens, 794 S.W.2d 745, 749 (Tenn. Ct. App. 1990); Wachovia Bank & Trust Co.
v. Glass, 575 S.W.2d 950, 955 (Tenn. Ct. App. 1978), and they must state the specific
ground on which they are based. See Continental Nat’l Bank v. First Nat’l Bank, 108
Tenn. 374, 379, 68 S.W. 497, 498-99 (1902); Burton v. Farmers’ Bldg. & Loan Ass’n,
104 Tenn. 414, 418, 58 S.W. 230, 231 (1900). Therefore, they cannot be raised for
the first time on appeal. See Street Ry. v. Dan, 102 Tenn. 320, 321-22, 52 S.W. 177,
178 (1899); Horner v. Graham, 64 S.W. 316, 318 (Tenn. Chan. App. 1901).
A.
ADMISSION OF EVIDENCE CONCERNING MS. OVERSTREET’S CAREER PLANS
Over Shoney’s’ objections, the trial court permitted Ms. Overstreet to introduce
evidence regarding her plans to obtain an advanced nursing degree and to become
certified as a registered nurse anesthetist. Shoney’s asserts that admitting this
evidence was error because the damages flowing from Ms. Overstreet’s inability to
earn an advanced degree were speculative and because the admission of this
testimony must have been prejudicial in light of the jury’s decision to award Ms.
Overstreet $100,000 for lost earning capacity.
1.
The purpose of tort damages in Anglo-American law is to compensate the
wronged party for damage or injury caused by the defendant’s conduct. See Inland
Container Corp. v. March, 529 S.W.2d 43, 44 (Tenn. 1975); Louisville, Nashville &
Great Southern R.R. v. Guinan, 79 Tenn. 98, 103 (1883); Vertrees v. Tennessee Auto
Corp., 5 Tenn. App. 140, 151 (1927). The goal of awarding damages is to repair the
wronged party’s injury or, at least, to make the wronged party whole as nearly as may
be done by an award of money. See Restatement (Second) of Torts § 901, cmt. a
(1979); 4 Fowler V. Harper, et al., The Law of Torts § 25.1, at 493 (2d ed. 1986)
(“Harper”).
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The party seeking damages has the burden of proving them. See Inman v.
Union Planters Nat’l Bank, 634 S.W.2d 270, 272 (Tenn. Ct. App. 1982). In tort
cases, the proof of damages need not be exact or mathematically precise. See
Provident Life & Accident Ins. Co. v. Globe Indem. Co., 156 Tenn. 571, 576, 3
S.W.2d 1057, 1058 (1928); Airline Constr. Inc. v. Barr, 807 S.W.2d 247, 274 (Tenn.
Ct. App. 1990). Rather, the proof must be as certain as the nature of the case permits
and must enable the trier of fact to make a fair and reasonable assessment of the
damages. See Pinson & Assocs. Ins. Agency, Inc. v. Kreal, 800 S.W.2d 486, 488
(Tenn. Ct. App. 1990); Wilson v. Farmers Chem. Ass’n, 60 Tenn. App. 102, 111, 444
S.W.2d 185, 189 (1969). The amount of damages is not controlled by fixed rules of
law, see Blalock v. Temple, 38 Tenn. App. 463, 470, 276 S.W.2d 493, 497 (1954), or
mathematical formulas. See Brown v. Null, 863 S.W.2d 425, 429-30 (Tenn. Ct. App.
1993). It is instead left to the sound discretion of the trier of fact. See Reeves v.
Catignani, 157 Tenn. 173, 176, 7 S.W.2d 38, 39-40 (1928); Sholodge Franchise Sys.,
Inc. v. McKibbon Bros., Inc., 919 S.W.2d 36, 42 (Tenn. Ct. App. 1995).
Damages may never be based on mere conjecture or speculation. See Western
Sizzlin, Inc. v. Harris, 741 S.W.2d 334, 335-36 (Tenn. Ct. App. 1987); Nashland
Assocs. v. Shumate, 730 S.W.2d 332, 334 (Tenn. Ct. App. 1987). However, uncertain
or speculative damages are prohibited only when the existence, not the amount, of
damages is uncertain. See Jennings v. Hayes, 787 S.W.2d 1, 3 (Tenn. Ct. App. 1989);
Cummins v. Brodie, 667 S.W.2d 759, 765 (Tenn. Ct. App. 1983). Evidence required
to support a claim for damages need only prove the amount of damages with
reasonable certainty. See Airline Constr., Inc. v. Barr, 807 S.W.2d at 274; Redbud
Coop. Corp. v. Clayton, 700 S.W.2d 551, 561 (Tenn. Ct. App. 1985).
Loss or impairment of future earning capacity is an element of damages in a
personal injury action. See Wolfe v. Vaughn, 177 Tenn. 678, 687, 152 S.W.2d 631,
635 (1941); Acuff v. Vinsant, 59 Tenn. App. 727, 733, 443 S.W.2d 669, 672 (1969).
Earning capacity refers not to actual earnings, but rather to the earnings that a person
is capable of making. See Southern Coach Lines v. Wilson, 31 Tenn. App. 240, 243,
214 S.W.2d 55, 56 (1948) (earning capacity refers to the loss of the power to earn);
see also Anderson v. Litzenberg, 694 A.2d 150, 161 (Md. Ct. Spec. App. 1997);
Restatement (Second) of Torts § 924(b) (1979).
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The extent of an injured person’s loss of earning capacity is generally arrived
at by comparing what the person would have been capable of earning but for the
injury with what the person is capable of earning after the injury. See Hunter v.
Hardnett, 405 S.E.2d 286, 288 (Ga. Ct. App. 1991); LaFever v. Kemlite Co., 706
N.E.2d 441, 455 (Ill. 1998); Bergquist v. Mackay Engines, Inc., 538 N.W.2d 655, 659
(Iowa Ct. App. 1995); Wal-Mart Stores v. Cordova, 856 S.W.2d 768, 770 (Tex. Ct.
App. 1993); Klink v. Cappelli, 508 N.W.2d 435, 437 (Wis. Ct. App. 1993);
Restatement (Second) of Torts § 924 cmt. d (1979). If the injury is permanent,1 this
amount should be multiplied by the injured person’s work life expectancy, and the
result should be discounted to its present value. See Conte v. Flota Mercante Del
Estado, 277 F.2d 664, 669 (2d Cir. 1960); Athridge v. Iglesias, 950 F. Supp. 1187,
1193 (D.D.C. 1996); Yosuf v. United States, 642 F. Supp. 432, 440 (M.D. Pa. 1986);
Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1164-65 (Ind. Ct. App. 1990);
Anderson v. Litzenberg, 694 A.2d at 162.
The injured party has the burden of proving his or her impairment of earning
capacity damages. See Sutton v. Overcash, 623 N.E.2d 820, 838 (Ill. Ct. App. 1993);
Southwestern Bell Tel. Co. v. Sims, 615 S.W.2d 858, 864 (Tex. Ct. App. 1981). In
order to recover these damages, the injured person must first prove with reasonable
certainty that the injury has or will impair his or her earning capacity. See Moattar
v. Foxhall Surgical Assocs., 694 A.2d 435, 439-40 (D.C. 1997); Barnes v. Cornett,
213 S.E.2d 703, 705 (Ga. Ct. App. 1975); Wahwasuck v. Kansas Power & Light Co.,
828 P.2d 923, 931 (Kan. 1992); Young v. Stewart, 399 S.E.2d 344, 346-47 (N.C. Ct.
App. 1991). Then, the injured party must introduce evidence concerning the extent
of the impairment of his or her earning capacity.
The proof concerning impairment of earning capacity is, to some extent,
speculative and imprecise. See Marress v. Carolina Direct Furniture, Inc., 785
S.W.2d 121, 123 (Tenn. Ct. App. 1989); see also Altman v. Alpha Obstetrics &
Gynecology, P.C., 679 N.Y.S.2d 642, 643-44 (N.Y. App. Div. 1998); Shivers v.
Riney, 695 P.2d 951, 955 (Or. Ct. App. 1985); Border Apparel-East, Inc. v. Guadian,
868 S.W.2d 894, 897 (Tex. Ct. App. 1993); 4 Harper, § 25.8, at 553; 2 Stuart M.
1
Damages for impairment of earning capacity may be awarded for either permanent or
temporary impairments. See Dingus v. Cain, 56 Tenn. App. 294, 297, 406 S.W.2d 169, 171 (1966);
Southern Coach Lines v. Wilson, 31 Tenn. App. at 243, 214 S.W.2d at 56. If the impairment is
temporary, the multiplier should be the duration of the actual impairment rather than the injured
person’s work life expectancy.
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Speiser, et al., The American Law of Torts § 8:27, at 625 (1985) (“Speiser”).
However, this imprecision is not grounds for excluding the evidence. See Turrietta
v. Wyche, 212 P.2d 1041, 1047-48 (N.M. 1949); Kaczkowski v. Bolubasz, 421 A.2d
1027, 1037 (Pa. 1980).
The courts have found competent and admissible any evidence which tends to
prove the injured person’s present earning capacity and the probability of its increase
or decrease in the future. See Martinez v. Jordan, 553 P.2d 1239, 1240 (Ariz. Ct.
App. 1976); Anderson v. Litzenberg, 694 A.2d at 162; Turrietta v. Wyche, 212 P.2d
at 1047; Wilson v. B.F. Goodrich Co., 627 P.2d 1280, 1282 (Or. Ct. App. 1981).
Thus, the courts have routinely admitted evidence concerning numerous factors,
including the injured person’s age, health, intelligence, capacity and ability to work,
experience, training, record of employment, and future avenues of employment. See
Marress v. Carolina Direct Furniture, Inc., 785 S.W.2d at 123-24; Clinchfield R.R.
v. Forbes, 57 Tenn. App. 174, 184-85, 417 S.W.2d 210, 215 (1966); see also
Kwapien v. Starr, 400 N.W.2d 179, 184 (Minn. Ct. App. 1987); Allers v. Willis, 643
P.2d 592, 595 (Mont. 1982); Schaefer v. McCreary, 345 N.W.2d 821, 824 (Neb.
1984); 4 Harper, § 25.8, at 550; 2 Speiser, § 8:27, at 631-32.
Impairment of earning capacity is not necessarily measured by an injured
person’s employment or salary at the time of the injury. See Schaefer v. McCreary,
345 N.W.2d at 824. It is not uncommon for an injured person to assert that an injury
has caused him or her to abandon plans to change employment, to obtain additional
education or training, or to otherwise advance their career. In the face of such an
assertion, the trier of fact must distinguish between persons with only vague hopes
of entering a new profession and those with the demonstrated ability and intent to do
so. See Jacob A. Stein, 2 Personal Injury Damages § 6:15, at 6-55 (Gerald W.
Boston, ed., 3d ed. 1997). Often, making this distinction depends on the steps the
person has actually taken to accomplish his or her educational or career goals.
Students are among the class of injured persons for whom educational and
career plans are relevant in determining impairment of earning capacity. A majority
of courts have concluded that a student or trainee has the right to have a jury consider
his or her education, training, and proposed occupation or career in calculating
damages for impaired earning capacity. Thus, a student may present evidence of his
or her educational accomplishments and plans and of the earning potential of persons
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engaged in the profession or career the student intends to pursue, as long as the
evidence is not wildly speculative. See Dickens v. United States, 545 F.2d 886, 892-
93 (5th Cir. 1977) (a medical student aspiring to be a surgeon was permitted to
present evidence of his academic success, his medical training, and his clear intent
and aptitude); Whittle v. Schemm, 402 F. Supp. 1294, 1299-1300 (E.D. Pa. 1975) (a
first-year junior college student was permitted to present evidence of his plans to
become an architect); Bowens v. Patterson, 716 So. 2d 69, 87-88 (La. Ct. App. 1998)
(a high school student was permitted to present evidence of plans to attend college
and graduate with a degree in computer science); Lee v. USAA Cas. Ins. Co., 540 So.
2d 1083, 1091-92 (La. Ct. App. 1989) (a high school student was permitted to present
evidence of plans to attend college and have a career in banking); Kenton v. Hyatt
Hotels Corp., 693 S.W.2d 83, 92-94 (Mo. 1985) (a second-year law student was
permitted to present evidence concerning her plans to graduate from law school and
have a legal career).2
2.
Far from being speculative, Ms. Overstreet’s evidence concerning the
impairment of her earning capacity is compelling. She demonstrated with a
reasonable degree of certainty that the injury to her eye is permanent and that it has
affected her ability to advance in the nursing profession. Ms. Overstreet, her
husband, her nursing professors, and her rehabilitative counselor testified at trial
concerning her plans to pursue an advanced nursing degree. This evidence
established that prior to her injury, Ms. Overstreet had the academic preparation,
ability, and perseverence to attain an advanced nursing degree and a more advanced
level of specialization.
She graduated from high school with honors and earned baccalaureate degrees
from Tennessee Technological University in both psychology and nursing. Ms.
Overstreet’s professors described her as diligent and committed and as an exceptional
student who was an excellent candidate for an advanced degree and who had
unlimited opportunities in nursing. From this proof, a jury could reasonably conclude
2
The courts have reached similar conclusions with regard to promising athletes whose careers
were cut short. See Clinchfield R.R. v. Forbes, 57 Tenn. App. at 185, 417 S.W.2d at 215; Connolly
v. Pre-mixed Concrete Co., 319 P.2d 343, 345-46 (Cal. 1957); Horton v. McCrary, 620 So. 2d 918,
931 (La. Ct. App. 1993), rev'd on other grounds, 635 So. 2d 199 (La. 1994).
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that Ms. Overstreet had the motivation, aptitude, and inclination to pursuing further
nursing training that would have enhanced her earning capacity.
Shoney’s places great significance on the fact that Ms. Overstreet had not yet
applied to a graduate nursing program when she was injured and argues that her
failure to do so renders her plans to pursue a graduate nursing degree speculative at
best. We disagree. An injured party is not required to be enrolled in an educational
or training program in order to testify about his or her future educational plans. See
Whittle v. Schemm, 402 F. Supp. at 1299-1300. Ms. Overstreet satisfactorily
explained why she did not apply to a graduate nursing program immediately upon
receiving her baccalaureate degree from Tennessee Technological University. She
presented uncontradicted evidence that it was common, and even recommended, that
nurses obtain at least one year of practical clinical experience before entering a
graduate nursing program.
Ms. Overstreet’s work life expectancy was at least another thirty years when
she was injured. She testified that her injury has made it difficult for her to perform
routine nursing tasks, such as measuring medicines and giving intravenous injections.
Thus, her eye injury has not only curtailed her plans to obtain a masters degree in
nursing or to become a certified registered nurse anesthetist or neonatal nurse
practitioner but has also impaired her ability to continue to work as a registered nurse.
In light of Ms. Overstreet’s work life expectancy, the evidence of her salary when she
was injured,3 and the salaries of nurses with graduate degrees and certified registered
nurse anesthetists,4 the fact that the jury awarded Ms. Overstreet $100,000 for
impairment of her earning capacity is consistent with the evidence.
B.
THE ADMISSION OF THE 1992 EXTERN EVALUATION FORM
The second evidence question involves the admission and use of a hospital
personnel change notice form containing an evaluation of Ms. Overstreet’s
performance as an extern in 1992. Shoney’s insists that the trial court’s actions
concerning the admission and weight of the document were prejudicial in two ways.
3
Ms. Overstreet was earning $33,000 per year when she was injured.
4
Certified nurse anesthetists earn approximately $66,000 per year, and nurses with graduate
degrees earn between $40,000 and $50,000 per year.
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First, it argues that the initial decision concerning the form’s admissibility prevented
it from effectively cross-examining Ms. Overstreet. Second, it argues that the later
admission of the form was undermined by the trial court’s cautionary instructions
concerning the form. We find both claims without merit.
1.
Ms. Overstreet participated in a ten-week extern program at Cookeville
General Hospital following her third year of nursing school. The purpose of the
program was to provide nursing students with additional clinical experience. Each
extern was assigned to work with another nurse at the hospital. Ms. Overstreet was
assigned to a nurse working on the night shift.
Following the completion of the summer extern program, the hospital routinely
completed a “personnel change notice” form for each extern to indicate that their
externship was completed. For employees leaving the employment of the hospital --
as these externs were -- the form required the employee’s supervisor and other
management personnel to rate the departing employee’s performance and to indicate
whether the employee was eligible to be rehired. The form also contained signature
lines for the employee’s supervisor, the department head, and the hospital
administrator. Departing employees did not receive a copy of this form; however, a
copy was placed in their hospital personnel file.
On September 14, 1992, the hospital generated a personnel change notice form
for Ms. Overstreet’s externship which had been completed on July 31, 1992. The
supervisor of nursing signed the form on September 14, 1992 even before the blanks
for Ms. Overstreet’s performance ratings had been filled in. These blanks were not
filled in by the nurse working directly with Ms. Overstreet, but rather by a nurse
manager who was working on the orthopaedic floor during the day shift and who had
never worked with Ms. Overstreet. The nurse manager later candidly conceded that
she had no direct knowledge of Ms. Overstreet’s performance and that she had based
her comments on information supplied by others. On the form, Ms. Overstreet’s
attendance was rated “above average;" the quality of her work and her general
efficiency were rated as “average;” and her dependability and initiative were rated as
“below average.” The nurse manager also checked the box indicating that Ms.
Overstreet was eligible to be rehired. The form was later signed by the hospital
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administrator and reviewed by the hospital’s human resources director. The human
resources director wrote “questionable rehire” on the form to remind her to inquire
into the two below average ratings should Ms. Overstreet decide later to seek
employment at the hospital. Thereafter, the form was placed in Ms. Overstreet’s
personnel file.
Shoney’s obtained a copy of the contents of Ms. Overstreet’s hospital
personnel file during pretrial discovery. The file contained not only the 1992 extern
evaluation but also later evaluations performed after Ms. Overstreet went to work for
the hospital as a nurse. The parties apparently stipulated prior to trial that these
records were admissible as business records under Tenn. R. Evid. 803(6).5 One of the
attorneys representing Shoney’s cross-examined Ms. Overstreet extensively
concerning the hospital’s evaluations of her performance after she accepted full time
employment with the hospital. Ms. Overstreet identified these post-evaluation forms,
and the trial court admitted them into evidence without objection.
Shoney's counsel then turned his attention to the evaluation of Ms. Overstreet’s
performance as an extern in 1992. Ms. Overstreet testified that she did not remember
being evaluated during her externship and that she could not identify the September
1992 evaluation form because she had never seen it before. Following an off-the-
record bench conference, the attorney changed the direction of his cross-examination
and began questioning Ms. Overstreet about her plans for raising a family. The cross-
examination concluded a few questions later.
The trial court dismissed the jury for the day following Ms. Overstreet’s
testimony. In the jury’s absence, the trial court stated for the record what had
transpired during the bench conference. The trial court explained that the personnel
change notice form could be marked for identification but that the form could not be
introduced into evidence through Ms. Overstreet because she could not identify it.6
5
The stipulation does not appear in the record. Theoretically, one party could have
understood that the stipulation extended only to the authenticity of the documents, while the other
could have assumed that the stipulation covered both authentication and admissibility. In the
absence of evidence to the contrary, we have concluded that the stipulation extends to both
authenticity and admissibility because Ms. Overstreet has not taken issue with Shoney’s
characterization of the issue.
6
Specifically, the trial court stated:
And I want to explain for the record the reason that I have excluded this
exhibit. It’s the type of information that begs cross-examination. It indicates on it
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At that point, one of Shoney’s attorneys stated for the record that he objected to the
trial court’s refusal to permit him to cross-examine Ms. Overstreet using the form.
He asserted that the form was admissible as a business record and that it was relevant
“to the major issue in this case, the degree of her [Ms. Overstreet’s] depression before
and after this particular accident.”
Shoney’s later called three witnesses who were involved in the preparation and
custody of the excluded form. Each witness identified the document and explained
their role in its preparation. However, each witness also conceded that they were not
personally familiar with Ms. Overstreet’s performance as an extern and that the
information concerning her performance was obtained from others. At this juncture,
the trial court admitted the form into evidence and permitted the witnesses to be
examined and cross-examined concerning the contents of the form. However, the
trial court also gave the jury a cautionary instruction concerning its consideration of
the information on the form. Shoney’s did not attempt to recall and cross-examine
Ms. Overstreet about the form after it was admitted into evidence.
2.
Lawyers and judges regard cross-examination as an essential safeguard of the
accuracy and completeness of testimony. See 1 McCormick on Evidence § 19, at 78
(John W. Strong ed., 4th Practitioner’s ed. 1992). It enables the trier-of-fact to assess
a witness’s demeanor, sincerity, and ability to perceive, recall, or narrate past events.
See Neil P. Cohen, et al., Tennessee Law of Evidence § 607.3, at 338 (3d ed. 1995).
Its purpose is to adduce from a witness any information that may clarify, qualify, or
undercut a witness’s testimony on direct examination, impair its effectiveness, or
affect the inferences the trier-of-fact might draw. See Roberto Aron, et al., Cross-
Examination of Witnesses § 2.06 (1989) (quoting Professor Anthony G. Amsterdam).
below-average initiative, questionable rehire, below-average dependability. It does
not indicate that she participated in the evaluation to any extent. She could not
identify it. And even though it may be a part of the Cookeville General Hospital
record, it’s hearsay within hearsay. It’s not only hearsay within hearsay, but it’s
opinion within hearsay.
And it would be my judgment that it would - - to permit this personnel
change notice to be introduced to the jury without cross-examination, without
allowing the other side to know the source of it, to face the person who made the
evaluation, would be unfair and undue prejudice far outweighing any relevance it
might have to this case.
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Lawyers should be accorded wide latitude in cross-examining witnesses. See
Crunk v. Grooms, 60 Tenn. App. 611, 620, 450 S.W.2d 15, 20 (1969); Union
Traction Co. v. Todd, 16 Tenn. App. 200, 208, 64 S.W.2d 26, 30 (1933). However,
despite its salutary purpose, cross-examination is subject to reasonable limitations to
prevent obstruction of the orderly progress of a trial. These limitations are left to the
trial court’s discretion. See Edwards v. State, 221 Tenn. 60, 66, 424 S.W.2d 783, 786
(1968); Austin v. City of Memphis, 684 S.W.2d 624, 631 (Tenn. Ct. App. 1984);
Wagner v. Niven, 46 Tenn. App. 581, 598, 332 S.W.2d 511, 519 (1959). Thus, the
trial court may use its discretion to prevent lawyer misconduct, see Tenn. R. Evid.
611(a), to avoid unfair prejudice, confusion, or waste of time, see Tenn. R. Evid. 403,
and to ensure compliance with other applicable rules of evidence and procedure.
The fact that these decisions are characterized as discretionary reflects a
recognition that they involve a choice among acceptable alternatives. See Card v.
Tennessee Civil Serv. Comm’n, 981 S.W.2d 665, 666 (Tenn. Ct. App. 1998). It also
indicates that the appellate courts will not interfere with a trial court’s decision
simply because the trial court did not choose the alternative that the appellate court
would have chosen. See BIF v. Service Constr. Co., No. 87-136-II, 1988 WL 72409,
at * 6 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application filed).
Discretionary decisions are not entirely immune from appellate scrutiny but are
subjected to less rigorous appellate scrutiny. See Martin B. Louis, Allocating
Adjudicative Decision Making Authority Between the Trial and Appellate Level: A
Unified View of the Scope of Review, the Judge/Jury Question, and Procedural
Discretion, 64 N.C.L. Rev. 993, 1045-46 (1986); Maurice Rosenberg, Judicial
Discretion of the Trial Court, Viewed From Above, 22 Syracuse L. Rev. 635, 667
(1971). Discretionary decisions must take applicable law into account and must be
consistent with the facts before the court. See Ballard v. Herzke, 924 S.W.2d 652,
661 (Tenn. 1996) (holding that the trial court must give due consideration to the
applicable law and facts). Thus, the appellate courts will set aside a trial court’s
discretionary decision only when the decision is based on a misapplication of the
controlling legal principles or on a clearly erroneous assessment of the evidence. See
Alside Supply Ctr. v. Smith Heritage Siding Co., No. 03A01-9797-CH-00069, 1997
WL 414982, at * 1 (Tenn. Ct. App. July 25, 1997) (No Tenn. R. App. P. 11
application filed) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110
S. Ct. 2447, 2461 (1990)); see also James, Cooke & Hobson, Inc. v. Lake Havasu
-15-
Plumbing & Fire Protection, 868 P.2d 329, 332 n.4 (Ariz. Ct. App. 1993); Canalez
v. Bob’s Appliance Serv. Ctr., Inc., 972 P.2d 295, 302 (Haw. 1999); Emmons v.
Purser, 973 S.W.2d 696, 699 (Tex. Ct. App. 1998); Shiel v. Ryu, 506 S.E.2d 77, 82
(W. Va. 1998).
When reviewing a trial court’s discretionary decision, appellate courts should
begin with the presumption that the decision is correct and should review the
evidence in the light most favorable to the decision. See In re Conservatorship of
Scharles, 285 Cal. Rptr. 325, 329 (Ct. App. 1991); Citicorp Mortgage, Inc. v. Burgos,
629 A.2d 410, 412 (Conn. 1993); Onwuteaka v. Gill, 908 S.W.2d 276, 280 (Tex. Ct.
App. 1995). Appellate courts should permit a trial court’s discretionary decision to
stand if reasonable judicial minds can differ concerning its propriety. See In re
Marriage of Breuer, 630 N.E.2d 1245, 1247 (Ill. Ct. App. 1994); Fusaro v. First
Family Mortgage Corp., 897 P.2d 123, 132 (Kan. 1995); T.D.J. Dev. Corp. v.
Conservation Comm’n of N. Andover, 629 N.E.2d 328, 331-32 (Mass. Ct. App.
1994); Phillips v. Deihm, 541 N.W.2d 566, 571 (Mich. Ct. App. 1995); Bridge v.
Karl’s, Inc., 538 N.W.2d 521, 523 (S.D. 1995).
3.
Shoney’s asserts that the trial court erred by preventing it from introducing the
1992 personnel change notice form during its cross-examination of Ms. Overstreet.
It argues that the trial court’s decision improperly “shifted the burden” to Shoney’s
to lay the foundation for admission of the exhibit. This argument overlooks the
distinction between the admissibility of documents and the admissibility of the
contents of documents.
Tennessee has long recognized the “English rule” which permits the scope of
cross-examination to exceed the scope of the witness’s direct examination. See Sands
v. Southern Ry., 108 Tenn. 1, 9, 64 S.W. 478, 480 (1901); Ray v. Hutchison, 17 Tenn.
App. 477, 483, 68 S.W.2d 948, 952 (1933). Thus, litigants may prove elements of
their own case during the cross-examination of their opponent’s witnesses. These
common-law precedents are now embodied in Tenn. R. Evid. 611(b) which states, in
part, that “[a] witness may be cross-examined on any matter relevant to any issue in
the case.”
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Cross-examination is not, however, a “universal solvent” that somehow renders
all evidence admissible. See IIIA John H. Wigmore, Evidence § 878, at 648
(Chadbourne rev. 1970). Substantive evidence introduced during cross-examination
must comply with the same requirements as evidence introduced during direct
examination. Thus, litigants seeking to admit business records into evidence during
cross-examination of a witness must satisfy the authentication requirements of Tenn.
R. Evid. 901 and the foundation requirements of Tenn. R. Evid. 403 & 803(6). If the
business record contains hearsay statements, the litigant seeking to introduce the
record must also demonstrate that the statements in the record are likewise
admissible. See Kanipes v. North Am. Phillips Elecs. Corp., 825 S.W.2d 426, 428
(Tenn. Ct. App. 1991); Butler v. Ballard, 696 S.W.2d 533, 536 (Tenn. Ct. App.
1985).
The source of Shoney’s discontent with the trial court’s ruling is its belief that
the parties’ pre-trial stipulation rendered the contents of Ms. Overstreet’s personnel
file admissible. In the absence of proof concerning its terms, we have construed the
stipulation to extend to two threshold requirements only. First, the parties agreed that
the copies of the documents taken from Ms. Overstreet’s hospital personnel file were
true and accurate copies of the documents actually in Ms. Overstreet’s file. This
agreement satisfied the authentication requirements in Tenn. R. Evid. 901. Second,
the parties agreed that the documents in Ms. Overstreet’s personnel file were records
of a regularly conducted business activity. This agreement satisfied the foundation
requirements for the “business records” exception to the hearsay rule in Tenn. R.
Evid. 803(6).
We find no indication in the appellate record that the parties stipulated that
every record in Ms. Overstreet’s hospital personnel file was relevant or that every
hearsay statement or opinion contained in these business records would be
admissible. Thus, when challenged, Shoney’s had the burden of demonstrating that
particular hearsay statements contained in the records in Ms. Overstreet’s personnel
file were admissible. Shoney’s had not carried this burden when it attempted to
introduce the opinions concerning Ms. Overstreet’s performance as an extern during
its cross-examination of Ms. Overstreet.
Shoney’s intended to accomplish two things by cross-examining Ms.
Overstreet concerning the 1992 personnel change notice form. First, it desired to
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place evidence before the jury that Ms. Overstreet’s superiors found her initiative and
dependability to be “below average” prior to the accident. Second, it desired to
undermine Ms. Overstreet’s credibility and favorable appraisal of her own initiative
by proving that her co-workers’ opinions of her performance in 1992 differed from
her own. Both these purposes were proper, but they hinged on Shoney’s ability to
demonstrate that the statements of opinion concerning Ms. Overstreet’s performance
in 1992 were admissible. Unfortunately for Shoney’s, Ms. Overstreet could not
provide the necessary foundation for this strategy to be successful.
Ms. Overstreet did not refer to the 1992 form during her direct examination and
did not use it to refresh her memory at any point during her testimony. She played
no role in preparing the form and could not even remember being evaluated during
her 1992 externship. She could not identify the 1992 form when confronted with it
during cross-examination. Likewise, she could not identify the person or persons
who evaluated her or whose notations appeared on the form.
Trial courts should not permit a witness to be cross-examined concerning the
contents of a document unless the document has already been admitted into evidence
or unless the document will be introduced into evidence before the conclusion of the
cross-examination. See Sharman v. Skaggs Cos., 602 P.2d 833, 837 (Ariz. Ct. App.
1979); State v. Green, 372 A.2d 133, 136 (Conn. 1976); Henson v. Veteran’s Cab
Co., 185 N.W.2d 383, 388 (Mich. 1971); State v. Hale, 371 S.W.2d 249, 254 (Mo.
1963); Logan v. Grady, 482 S.W.2d 313, 320 (Tex. Ct. App. 1972); see also 81 Am.
Jur. 2d Witnesses § 829, at 680 (1992); 98 C.J.S. Witnesses § 391, p. 163 (1957).
Any other rule would effectively prevent the other parties, including the party who
called the witness, from examining the witness concerning the contents of the
document.
This record contains two independently sufficient reasons for upholding the
trial court’s decision to limit Shoney’s cross-examination of Ms. Overstreet based
upon the contents of the 1992 personnel change notice form. First, Ms. Overstreet’s
answers to questions concerning the 1992 form conclusively demonstrate that the
document and the opinions in the document were beyond Ms. Overstreet’s personal
knowledge. Accordingly, she could not have provided the proper foundation for
admitting the document into evidence. Second, the lack of evidence concerning who
performed the evaluation, how the evaluation was performed, and the basis for the
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evaluation provided the trial court with sufficient basis to question the document’s
trustworthiness under Tenn. R. Evid. 803(6) and to conclude that permitting the
introduction of the document through Ms. Overstreet would unfairly prejudice Ms.
Overstreet and would otherwise confuse the issues and mislead the jury under Tenn.
R. Evid. 403. Accordingly, we find that the trial court properly declined to permit
Shoney’s to introduce the 1992 form during Ms. Overstreet’s cross-examination.
C.
THE LIMITING INSTRUCTIONS
The trial court eventually permitted Shoney’s to introduce Ms. Overstreet’s
1992 personnel change notice form after Shoney’s called three witnesses who played
a role in the preparation of the form. However, each witness conceded that the
opinions in the form concerning Ms. Overstreet’s performance as an extern were
formed by others and that they had no personal knowledge that would have enabled
them to form their own opinion regarding Ms. Overstreet’s initiative during the
summer of 1992. Following these witnesses’ testimony, the trial court instructed the
jury that:
Members of the jury, I have admitted Exhibit 23. I would
remind you that any opinion expressed on that form is to
be received under the same standards that I told you about
expert opinion before. In other words, if the opinion that
might be expressed on that form is not backed up by
evidence, then you would ignore it.
Shoney’s now argues that these instructions seriously and inappropriately
undermined the value of the exhibit.
None of the witnesses who testified concerning the 1992 evaluation form were
qualified as experts in human behavior, including motivation or initiative. Thus, they
were testifying as lay persons when they were asked about Ms. Overstreet’s initiative
during her 1992 externship. As lay persons, they could only give an opinion
concerning Ms. Overstreet’s initiative if their opinion was “rationally based” on their
own perceptions. See Tenn. R. Evid. 701(a)(1). Thus, their opinions concerning Ms.
Overstreet’s initiative must have been based on their personal knowledge. See Tenn.
R. Evid. 602; see also In re Estate of Elam, 738 S.W.2d 169, 172 (Tenn. 1987); Bills
v. Lindsay, 909 S.W.2d 434, 439 (Tenn. Ct. App. 1993) (holding that lay opinions
concerning the soundness of a person’s mind must be based on conversations,
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appearances, and conduct); Edwards v. State, 540 S.W.2d 641, 648 (Tenn. 1976) (lay
opinions concerning a person’s sanity must be based on personal observation);
McCandless v. Oak Constructors, Inc., 546 S.W.2d 592, 598 (Tenn. Ct. App. 1976)
(lay opinions concerning a person’s intoxication must be based on personal
observation).
Tenn. R. Evid. 701 requires lay witnesses to explain the basis for their personal
knowledge of the facts that form the basis of their opinion. See Neil P. Cohen et al.,
Tennessee Law of Evidence § 701.3 (3d ed. Supp. 1998). Thus, lay opinions that are
based on facts or circumstances not in evidence must be rejected. See Pierce v.
Pierce, 174 Tenn. 508, 510, 127 S.W.2d 791, 792 (1939). In our view, the trial court
would have been justified in excluding Exhibit 23 because none of the witnesses had
personal knowledge of the factual basis for the opinion Exhibit 23 contained
concerning Ms. Overstreet’s initiative. However, the trial court decided to admit
Exhibit 23 with a limiting instruction. The limiting instruction was consistent with
Pierce v. Pierce, and, therefore, we decline to find that the trial court abused its
discretion by giving this instruction contemporaneously with the admission of the
exhibit.
IV.
THE VERDICT FORM
Shoney’s also takes issue with the procedure devised by the trial court to
facilitate the jury’s consideration of Ms. Overstreet’s damage claims. It asserts that
the trial court infringed on its right to a general verdict by providing the jury with a
“verdict form” that separately itemized each of Ms. Overstreet’s damage claims. It
also asserts that the verdict form prompted the jury to award duplicate, overlapping
damages for the same injury. We find no reversible error in the preparation and use
of the verdict form in this case.
A.
Prior to the conclusion of the trial, the trial court provided counsel with drafts
of its proposed jury instructions and with a form the court planned to provide the jury
to aid in its deliberations. While Shoney’s did not object to the proposed instructions,
it objected strenuously to the proposed verdict form which itemized each of the types
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of damages sought by Ms. Overstreet. The sole basis for the objection was that the
verdict form required the jury to render a series of special verdicts even though
Shoney’s had requested a general verdict in accordance with Tenn. R. Civ. P. 49.03.
The trial court responded that it intended to ask the jury to return a general verdict
and that the verdict form was intended to be only a “guide” for the jury’s
deliberations.
The trial court’s instructions contained directions regarding the process for
calculating the damages if the jury decided that Ms. Overstreet was entitled to recover
from Shoney’s. These instructions, for the most part, tracked the Tennessee Pattern
Jury Instructions. Referring first to “non-economic damages,” the trial court
instructed the jury to
determine the reasonable compensation for any physical
pain and suffering, disfigurement, permanent impairment
and loss of capacity for the enjoyment of life suffered by
the plaintiff and of which her injury was the legal cause,
and for pain and suffering and loss of capacity for the
enjoyment of life in the past and those which more likely
than not will be experienced in the future from the same
cause.
Then, referring to “economic damages,” 7 the trial court stated that the jury
should also consider what, if any, income damages were or
will be suffered. These include:
No. 1 is the reasonable value of medical care,
services and supplies reasonably required and actually
given in the treatment of the plaintiff and the present cash
value of similar services reasonably expected to be
required in the future in the treatment of the plaintiff; and
Second, the value of earning capacity loss in the past
and that will be reasonably expected to be lost in the future
as a result of the injury in question . . .
* * *
You are not permitted to award a party speculative
damages which means compensation for loss or harm
which, although possible, is conjectural or not reasonably
certain. However, if you determine that a party is entitled
to recover, you should compensate for loss or harm which
has been suffered and in addition, for loss or harm which
is reasonably expected, more probably than not, to be
suffered in the [future] as a legal result of the injury in
question.
7
The version of the trial court’s instructions in the transcript refers to “income damages,”
while the trial court’s written instructions in the technical record refer to “economic damages.”
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Following these instructions, the trial court turned to the verdict form and the
procedure for reporting the verdict. The verdict form the court provided the jury was
as follows:
We, the jury, present the following answers to the questions submitted by the Court:
1. Was the defendant Shoney’s Inc. guilty of negligence which was the legal cause
of the injury to the plaintiff? Yes_____ No_____
If the answer to Question One is “No”, simply sign the verdict form, and you [do]
not need to fill out Question Two since you will have found the issues in favor of the
defendant.
2. If so, set forth the amount of damages, if any, you find have been proven by a
preponderance of the evidence in each of the following categories:
a. NON-ECONOMIC DAMAGES:
1. Physical pain and suffering - past $______
2. Physical pain and suffering - future $______
3. Permanent impairment and/or disfigurement $______
4. Loss of capacity for the enjoyment of life - past $______
5. Loss of capacity for the enjoyment of life - future $______
b. ECONOMIC DAMAGES
1. Medical care services to date $______
2. Future medical care services $______
3. Value of earning capacity lost - past $______
4. Value of earning capacity lost - future $______
TOTAL $______
Date: __________ ____________________
JURY FOREPERSON
After providing the jury with the form, the trial court explained that “in
reporting your verdict, it is not necessary that you break your verdict down into the
individual elements of damages, but you must report your award, if any, in a single
sum.” Then the trial court explained that the purpose of the verdict form was “to aid
you [the jurors] in your deliberations.” It also explained that if the jury decided that
Shoney’s negligence caused Ms. Overstreet’s injuries, it must
set forth the amount of damages, if any, you find have been
proven by a preponderance of the evidence in each of the
following categories. And then I have the categories listed
as I did in the charge: Physical pain and suffering in the
past. Physical pain and suffering in the future. Permanent
impairment and/or disfigurement. Loss of capacity for the
enjoyment of life in the past. Loss of capacity for the
enjoyment of life in the future.
And then the income [economic] damages: Medical
care for services to date. Future medical care services.
Value of earning capacity lost in the past. Value of earning
capacity lost in the future.
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Then you will total any figures that you have found
on any of those items. And then you’ll date the form and
the jury foreperson will sign it.
When you report your verdict, any figure you award
would be the total of all the damages for the sum of any
figures for elements of damages that you have calculated.
That is the total figure if any.
After deliberating for approximately two and one-half hours, the jury returned
a general verdict against Shoney’s for $2,013,000. Notwithstanding the request by
counsel for Shoney’s to review the verdict form, the trial court placed the form under
seal, stating that "in the event it becomes appropriate to open it at some future time,
we’ll do that.” Among the post-trial motions Shoney’s filed was a motion for
permission to examine the verdict form. After reviewing the verdict form, Shoney’s
pointed out that the jury’s informal calculations on the back of the verdict form were
$200,000 less than the damage calculations that had been filled in on the front of the
form.8 The trial court denied the post-trial motions, approved the jury’s verdict, and
rendered a judgment accordingly.
B.
SHONEY’S DEMAND FOR A GENERAL VERDICT
Shoney’s argument that the trial court’s verdict form undermined its right to
a general verdict is flawed for two reasons. First, Shoney’s had no right to a general
verdict when this case was tried. Second, the trial court’s verdict form, which was
the functional equivalent to special interrogatories, did not prevent the jury from
returning a general verdict.
A general verdict is nothing more than a composite decision of the jury based
on the jury’s determination of the facts and its application of the law, as charged by
the trial court, to the facts. See Lawrence A. Pivnick, Tennessee Circuit Court
Practice § 26-3 (1998). It is a unitary finding by the jury on all the issues between
the parties including damages. See Hulshof v. Noranda Aluminum, Inc., 835 S.W.2d
411, 420 (Mo. Ct. App. 1992); Grumman Credit Corp. v. Rivair Flying Serv., Inc.,
845 P.2d 182, 185 (Okla. 1992); Owens v. McBride, 694 P.2d 590, 593 (Utah 1984).
8
Shoney’s has not raised this issue on appeal, and therefore, we have not addressed it.
-23-
The amount of damages is expressed as a total sum. See ITT Terryphone Corp. v. Tri-
State Steel Drum, Inc., 344 S.E.2d 686, 691 (Ga. Ct. App. 1986).
When this case was tried, Tenn. R. Civ. P. 49.039 preserved a litigant’s right
to demand a general verdict “whenever such right is given by the Constitution of the
State of Tennessee.” However, ten years earlier, the Tennessee Supreme Court
removed the substance of this rule, rendering it a hollow shell. The Court held that
civil litigants do not have a constitutional right to have all the issues decided by the
jury at one time through a general verdict. See Ennix v. Clay, 703 S.W.2d 137, 139
(Tenn. 1986). Rule 49.03 only protected the right to a general verdict if that right was
constitutionally mandated. Since general verdicts, such as the one Shoney's
requested, are no longer constitutionally mandated, Rule 49.03 was meaningless at
the time of trial.
The second flaw in Shoney’s “general verdict” argument is that it overlooks
the prerogative of the trial court to require the jury to answer special interrogatories
even when one of the parties has requested a general verdict. See Ladd v. Honda
Motor Co., 939 S.W.2d 83, 105 (Tenn. Ct. App. 1996). A number of states, either by
statute or judicial decision, now require or permit the use of itemized damage verdicts
similar to the verdict form used in this case. See, e.g., Perry v. Allen, 720 So. 2d 614,
614-15 (Fla. Dist. Ct. App. 1998); Shirley v. Smith, 933 P.2d 651, 655 (Kan. 1997);
Tedeschi v. Burlington Northern R.R., 668 N.E.2d 138, 140 (Ill. Ct. App. 1996).
Contrary to the assertions in Shoney’s brief, we find nothing in McIntyre v. Balentine,
833 S.W.2d 52 (Tenn. 1992) calling into question the use of itemized verdict forms
to aid the jury in calculating damages. Reporting a verdict in this manner, when
preceded by proper instructions on damages, actually facilitates the trial court’s
ability to perform its role as the thirteenth juror, as well as the appellate court’s ability
to review the verdict for consistency and conformance with the evidence.
C.
DUPLICATIVE DAMAGES
9
Tenn. R. Civ. P. 49.03 was repealed effective July 1, 1997. See Order, Tenn. Decisions
LVIV , LVIII -LIX (Tenn. Mar. 12, 1997); Sen. Res. of Apr. 21, 1997, Sen. Res, No. 24, 1997 Tenn.
Pub. Acts 1323; House Res. of Apr. 28, 1997, House Res. No. 47, 1997 Tenn. Pub. Acts 1487.
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Shoney’s also insists that the itemization of damages on the verdict form
permitted the jury to award duplicative damages. Specifically, it asserts that the
damages for pain and suffering, disfigurement, and loss of capacity to enjoy life
overlap. Ms. Overstreet responds that Shoney’s should not be permitted to raise this
issue on appeal because it did not take issue with the trial court’s jury instructions on
damages.
We will first consider whether Tenn. R. App. P. 36(a) prevents Shoney’s from
raising this issue on appeal. It would have been better practice had Shoney’s taken
issue with the trial court’s damage instructions or requested additional instructions
concerning the components of each element of damage and a complete instruction
patterned after T.P.I. 3 - Civil 14.01. However, we have determined that not raising
these matters with the trial court does not prevent Shoney’s from challenging the
verdict form. The verdict form, more so than the instructions themselves, emphasizes
the jury’s prerogative to assign a separate monetary loss for each type of damages
requested by Ms. Overstreet. Thus, notwithstanding the trial court’s use of the term
“if any” in its instructions and the verdict form, the verdict form is more conducive
to duplicate, overlapping damage awards if the different measures of damages listed
on the form actually overlap. We have determined, however, that the different
measures of damages sought by Ms. Overstreet represent separate and distinct losses.
It will be helpful at the outset to define each of the non-economic damages that
the jury awarded – pain and suffering, permanent impairment and/or disfigurement,
and loss of enjoyment of life – both past and future. Although conceptually they all
can be encompassed within the general rubric of pain and suffering, each of these
types of damages are separate and distinct losses to the victim. See Thompson v.
National R.R. Passenger Corp., 621 F.2d 814, 824 (6th Cir. 1980). The drafters of
the Tennessee Pattern Jury Instructions have reached a similar conclusion. See T.P.I.
3 - Civil 14.10 through 14.17.
Pain and suffering encompasses the physical and mental discomfort caused by
an injury. See Rufino v. United States, 829 F.2d 354, 359 n.8 (2nd Cir. 1987); Kirk
-25-
v. Washington State Univ., 746 P.2d 285, 292 (Wash. 1987). It includes the “wide
array of mental and emotional responses” that accompany the pain, characterized as
suffering, See McDougald v. Garber, 504 N.Y.S.2d 383, 385 (N.Y. Sup. Ct. 1986);
such as anguish, distress, fear, humiliation, grief, shame, or worry. See Charles T.
McCormick, Damages § 88, at 315 (1935). The extreme discomfort caused by lying
in a hospital bed in a leg traction device with holes punched in one’s limbs is an
example of the pain and suffering for which damages may be awarded. See Owen v.
Locke, 650 S.W.2d 51, 52 (Tenn. Ct. App. 1983).
A permanent injury differs from pain and suffering in that it is an injury from
which the plaintiff cannot completely recover. See Jordan v. Bero, 210 S.E.2d 618,
630 (W. Va. 1974). It prevents a person from living his or her life in comfort by
adding inconvenience or loss of physical vigor. See Wheeler v. Bennett, 849 S.W.2d
952, 955 (Ark. 1993). Disfigurement is a specific type of permanent injury that
impairs a plaintiff’s beauty, symmetry, or appearance. See Rapp v. Kennedy, 242
N.E.2d 11, 13 (Ill. App. Ct. 1968). Permanent injury may relate to earning capacity,
pain, impairment of physical function or loss of the use of a body part, see Yates v.
Bradley, 396 S.W.2d 735, 738 (Mo. Ct. App. 1965), or to a mental or psychological
impairment. See Kerr v. Magic Chef, Inc., 793 S.W.2d 927, 929 (Tenn. 1990);
International Yarn Corp. v. Casson, 541 S.W.2d 150, 152 (Tenn. 1976).
Damages for loss of enjoyment of life compensate the injured person for the
limitations placed on his or her ability to enjoy the pleasures and amenities of life.
See Thompson v. National R.R. Passenger Corp., 621 F.2d at 824; Martin v. Southern
Ry., 225 Tenn. 77, 80-81, 463 S.W.2d 690, 691 (1971) (approving an award for the
“intangible elements of damage such as pain, suffering, inconvenience, and
deprivation of the normal enjoyments of life”); Mariner v. Marsden, 610 P.2d 6, 12
(Wyo. 1980). This type of damage relates to daily life activities that are common to
most people. See, e.g., Nemmers v. United States, 681 F. Supp. 567, 575 (C.D. Ill.
1988) (going on a first date, becoming a parent, reading, debating politics); Dyer v.
United States, 551 F. Supp. 1266, 1281 (W.D. Mich. 1982) (sense of taste); Sweeney
v. Car/Puter Int’l Corp., 521 F. Supp. 276, 288 (D.S.C. 1981) (recreational or family
activities). It can also compensate a victim for the loss of uncommon individual
pursuits or talents. See e.g., District of Columbia v. Woodbury, 136 U.S. 450, 459
(1890) (contributing articles to professional journals); McAlister v. Carl, 197 A.2d
140, 145 (Md. 1964) (inability to continue in a particular career); Kirk v. Washington
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State Univ., 746 P.2d at 292-93 (ballet). The policy underlying the award of loss of
enjoyment damages is of making the victim whole in the only way a court can – with
an equivalent in money for each loss suffered. See Thompson v. National R.R.
Passenger Corp., 621 F.2d at 824.
Ms. Overstreet received $150,000 for past pain and suffering, $100,000 for
future pain and suffering, $1,250,000 for permanent impairment and/or
disfigurement, $150,000 for past loss of enjoyment of life, and $100,000 for future
loss of enjoyment of life. After considering the evidence presented at trial, we have
determined that it supports each element of the jury’s award of damages.
Ms. Overstreet suffered a painful injury to her left eye, underwent five invasive
surgical procedures involving hospital stays, and suffered mental anguish, including
the uncertainty of not knowing whether she would ever see out of her left eye again.
She was required to wear an unattractive eye shield and to suffer through the
embarrassment of having strangers stare at her disfigured eye. When the surgical
attempts to re-attach her retina failed, she had to accept that she would never see out
of her left eye and that she had suffered a permanent, career-ending disability. Her
eye remains red, inflamed, and sensitive, and she will always be afraid of losing the
sight in her right eye and becoming completely blind.
Ms. Overstreet’s permanent injuries include the loss of vision and the
accompanying disfigurement, a vocational disability, and the profound impact the
injury has had on her psychological health. Her injury translates to a twenty-five
percent impairment to her visual system and a twenty-four percent impairment to her
body as a whole. She has lost vision in her left eye, and her left eye is now disfigured
because it is noticeably smaller than the right eye and is constantly inflamed. Her
efforts to use a scleral shell to minimize the cosmetic disfigurement have been
unsuccessful. Ms. Overstreet testified that the shell never got comfortable, that it felt
like it was scraping her eye, and that when she removed it with a stopper it felt like
“it was going to suction my eye out.” Instead, she always wears glasses, which
protect her right eye from injury.
Ms. Overstreet’s injury has also changed her personality significantly. The
psychological effects of the accident have affected all areas of Ms. Overstreet’s life
and have fundamentally changed her self-perception. Prior to her injury, Ms.
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Overstreet was self-assured, motivated, and enthusiastic; now, she is fearful and
withdrawn and has no self-confidence. The deterioration of her psychological health
was noted by her husband, her nursing professors, and her physicians, all of whom
testified to her feelings of despair and powerlessness. One of her physicians, who
prescribed anti-depressants for Ms. Overstreet, testified that she has a low threshold
for self-destructing and lacks self-confidence since the injury. While Ms.
Overstreet’s psychologist testified that she was no longer suicidal, he could not
predict an end to her treatment for post-traumatic stress disorder, anxiety attacks, and
depression.
A rehabilitative counselor who evaluated Ms. Overstreet concluded that her
injury had caused a vocational disability because of the physical and emotional
requirements of nursing. Ms. Overstreet’s loss of depth perception makes it difficult
for her to measure medicines and to give intravenous injections, both of which are
necessary tasks of her job. Her potential to advance in her career has been hindered,
and it is unlikely she will be able to reach her prior career goals.
The evidence also supports the award for loss of enjoyment of life. While
wearing her eye shield, Ms. Overstreet could not swim or wash her own hair, and she
was forced to avoid heavy lifting and driving. Ms. Overstreet testified that she cannot
do much of her housework without assistance and that she no longer enjoys
socializing or even leaving the house. She is constantly afraid that something will
happen to her right eye and that she will be left totally blind. She must avoid
lawnmowers or anything else that could throw projectiles, and she no longer swims
because the chlorine and salt water hurt her eye. Sometimes she burns herself when
she cooks and she testified that she will not risk going rafting, canoeing, or playing
tennis. Mr. Overstreet testified that his wife no longer wants to go out and that she
bumps into people because she doesn’t see them coming on her left side. He also
observed that she is nervous around glass objects and that she hates going to work
because she cannot tolerate the stress.
In light of this evidence, we find no evidence of duplicative damages. Ms.
Overstreet has clearly suffered past and future damages of pain and suffering,
permanent disfigurement and impairment, and loss of enjoyment of life as a direct
result of the injury and loss of vision in her left eye.
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V.
THE DENIAL OF A NEW TRIAL AND REMITTITUR
Shoney’s asserts that the trial judge did not properly perform its function as
thirteenth juror because it failed to weigh the evidence independently. Shoney’s also
contends that the evidence preponderates against the jury’s award of $1,250,000 in
damages for Ms. Overstreet’s permanent impairment and/or disfigurement and that
the trial court erred by declining to suggest a remittitur of that damage award. We do
not agree.
A.
THE TRIAL COURT’S DUTY AS THIRTEENTH JUROR
Shoney’s insists that the trial court’s comments at the hearing on the post-trial
motions demonstrate that the trial court was inappropriately deferential to the jury’s
verdict and that it did not independently evaluate the evidence. It bases this assertion
on comments such as “proof that would justify a jury in believing,” “the jury had an
adequate basis,” and “the jury could have concluded.” While these comments reveal
the trial court’s respect for the jury’s conclusion, they do not indicate that the trial
court abrogated its responsibility as thirteenth juror.
The thirteenth juror rule requires the trial court to weigh the evidence
independently, to determine the issues, and to decide whether the verdict is supported
by the evidence. See Ladd v. Honda Motor Co., 939 S.W.2d at 105; Loeffler v.
Kjellgren, 884 S.W.2d 463, 468-69 (Tenn. Ct. App. 1994). Although we may
consider any comments made by a trial judge during a hearing on the motion for new
trial, see Ridings v. Norfolk S. Ry., 894 S.W.2d 281, 289 (Tenn. Ct. App. 1994), we
must, in the final analysis, determine whether the trial court properly reviewed the
evidence and agreed or disagreed with the verdict. See Ladd v. Honda Motor Co.,
939 S.W.2d at 104; Herbert v. Brazeale, 902 S.W.2d 933, 936 (Tenn. Ct. App. 1995).
We cannot review the accuracy of the trial court’s determination as thirteenth juror.
See State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995).
At the hearing for the motion for new trial, the trial court stated that “[s]ince
the time of this trial, I have reviewed the verdict in my own mind and reviewed the
evidence of damages with relationship to the verdict on several different occasions.”
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The trial court added that it believed that the non-economic damages far exceeded the
economic damages in the case and that the injury had had a significant impact on Ms.
Overstreet. After considering all the elements of damages, the trial court concluded
that it did not disagree with the $2,013,000 verdict and that each element of damages
was supported by the evidence and was within the range of reasonableness. After
considering the record as a whole, we have concluded that the trial court competently
performed its role as thirteenth juror.
B.
THE TRIAL COURT’S REFUSAL TO SUGGEST A REMITTITUR
Shoney’s also contends that the trial judge should have suggested a remittitur.
It asserts that a $1,250,000 award for permanent disfigurement or impairment is
excessive because Ms. Overstreet suffered a loss of vision in only one eye and
because the disfigurement of her left eye was minimal. We respectfully disagree.
Like the trial court, we are impressed by the evidence of the profound impact this
injury has had on Ms. Overstreet.
Acting as the thirteenth juror, the trial court may set aside a jury’s verdict and
order a new trial. See Hardesty v. Service Merchandise Co., 953 S.W.2d 678, 681
(Tenn. Ct. App. 1997). When the trial court finds that the amount of the verdict is
excessive or inadequate, it may suggest a remittitur or an additur in lieu of granting
a new trial. See Tenn. Code Ann. § 20-10-102 (1994); Hardesty v. Service
Merchandise Co., Inc., 953 S.W.2d at 681. This procedure avoids the necessity of
conducting a new trial with its added expense and delay. See Foster v. Amcon Int’l,
Inc., 621 S.W.2d 142, 147 (Tenn. 1981).
However, when a trial court approves a jury verdict, appellate courts may only
review the record to determine whether it contains material evidence to support the
jury’s verdict. See Tenn. R. App. P. 13(d); Reynolds v. Ozark Motor Lines, Inc., 887
S.W.2d 822, 823 (Tenn. 1994); Whitaker v. Harmon, 879 S.W.2d 865, 867 (Tenn. Ct.
App. 1994). Appellate courts do not reweigh the evidence and consider where the
preponderance lies. Instead, they determine whether there is any material evidence
to support the verdict, and, if there is, they must affirm the judgment. See Reynolds
v. Ozark Motor Lines, Inc., 887 S.W.2d at 823; Pullen v. Textron, Inc., 845 S.W.2d
777, 780 (Tenn. Ct. App. 1992).
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The jury bears primary responsibility for awarding damages in a personal
injury action, followed closely by the trial court in its role as thirteenth juror. See
Coffey v. Fayette Tubular Products, 929 S.W.2d 326, 328 (Tenn. 1996); Sholodge
Franchise Sys., Inc. v. McKibbon Bros., Inc., 919 S.W.2d 36, 41 (Tenn. Ct. App.
1995). When a trial court approves a verdict awarding damages in a personal injury
action, our review is subject to the rule that if there is any material evidence to
support the jury’s award, it should not be disturbed. See Hunter v. Burke, 958 S.W.2d
751, 757 (Tenn. Ct. App. 1997).
We have concluded that there is material evidence to support the jury’s award
of $1,250,000 for permanent impairment and disfigurement. Shoney’s has
underestimated the significance of Ms. Overstreet’s psychological impairment and
has minimized the effect of her physical disfigurement. Although this type of injury
may not impact every person in such a profound way, in Ms. Overstreet’s case, the
effects have been far-reaching.
A former nursing instructor, who once evaluated Ms. Overstreet as a
committed, exceptional, and positive student, testified that she had lost these qualities
since the injury. She observed that Ms. Overstreet no longer bubbles with enthusiasm
and is now convinced that her career is over. Ms. Overstreet’s psychological
problems have manifested themselves in mistakes at work, indecision about whether
she can adequately perform her job, a sixty-pound weight gain, and a loss of interest
in daily activities. Ms. Overstreet continues to suffer from post-traumatic stress
syndrome, anxiety attacks, and depression, even though she is no longer suicidal.
The timing of the accident intensified the psychological impact of Ms.
Overstreet’s injuries. It occurred just as Ms. Overstreet was ready to begin her new
career and her married life. She was about to realize her career goals. Although Ms.
Overstreet continues to have the intellectual ability and qualifications to pursue a
graduate degree, she no longer has the confidence and emotional stability that post-
graduate nursing education would require. She testified that she had wanted to
pursue her master’s degree after a year of practical experience, but that she has now
abandoned these plans because she doubts her abilities.
Along with the loss of vision, the disfigurement to Ms. Overstreet’s left eye is
substantial. Because her left eye is red, inflamed, and smaller than her right eye, the
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injury detracts from the symmetry and beauty of Ms. Overstreet’s face. The eye
appears as if it is half-closed and it is obvious from even a cursory glance that her eye
has been injured. This permanent disfigurement to her appearance will continue to
negatively affect Ms. Overstreet’s self-image for the rest of her life. The permanent
impairment also encompasses Ms. Overstreet’s vocational disability. She will be
limited in her career choices and in the opportunity for advancement in her chosen
vocation, because of both the loss of vision and the psychological damage from the
injury.
In summary, we have concluded that the record contains material evidence to
support the jury’s decision to award Ms. Overstreet $1,250,000 for permanent injury
and disfigurement. Accordingly, we do not find that the trial court erred by declining
either to set this award aside or to suggest a remittitur.
VI.
We affirm the judgment awarding Ms. Overstreet $2,013,000 in damages and
remand the case to the trial court for whatever further proceedings may be required.
We tax the costs of this appeal to Shoney’s, Inc. and its surety for which execution,
if necessary, may issue.
_____________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
_________________________________
BEN H. CANTRELL, JUDGE
_________________________________
WILLIAM B. CAIN, JUDGE
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