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Garrison v. Hodge

Court of Appeals of Arkansas, Division IV

November 14, 2018

ROXANNE M. GARRISON AND MERCY HOME HEALTH BERRYVILLE APPELLANTS
v.
CHARLES HODGE AND MARY HODGE APPELLEES

          APPEAL FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05CV-15-256] HONORABLE JOHN R. PUTMAN, JUDGE

          Wright, Lindsey & Jennings LLP, by: Jason B. Hendren, Paul D. Morris, Gary D. Marts, Jr., and Caley B. Vo, for appellants.

          Sprott, Golden & Bardwell, by: James D. Sprott and Kelsey K. Bardwell; and Cullen & Co., PLLC, by: Tim J. Cullen, for appellees.

          WAYMOND M. BROWN, JUDGE.

         Roxanne Garrison and her employer, Mercy Home Health Berryville (collectively, Mercy), bring this appeal from a judgment entered by the Boone County Circuit Court on a jury's verdict awarding Charles Hodge ("Bill") and Mary Hodge a total of $5.21 million arising out of a collision between a motorcycle and a car.[1] Mercy argues that the circuit court erred in instructing the jury; in permitting counsel for the Hodges to make an improper closing argument; and in denying Mercy's motion for a new trial or remittitur because of excessive damages. We affirm.

         The collision occurred at approximately 1:50 p.m. on April 23, 2015. Hodge was riding his motorcycle south on U.S. Highway 65 in Harrison, Arkansas. Garrison was traveling north on Highway 65. As Garrison attempted to make a left turn from Highway 65 onto Kenilworth Drive, she collided with Hodge's motorcycle, striking it on the front and left. Hodge was thrown from his motorcycle, suffering severe personal injuries, including the loss of his left leg above the knee.

         Hodge filed suit against both Garrison and Mercy for the injuries he received as a result of the collision. The complaint alleged negligence against Garrison. Specifically, Hodge asserted three theories of negligence: that Garrison failed to yield the right of way; that she failed to maintain control of her vehicle; and that she failed to maintain a proper lookout. The claims against Mercy were premised on vicarious liability because Garrison was alleged to have been acting in the course and scope of her employment with Mercy. The Hodges sought compensatory damages for both property damage to the motorcycle and for personal injuries and loss of consortium.

         Garrison and Mercy jointly answered, admitting the collision and that Garrison was acting in the course and scope of her employment but otherwise denying the material allegations of the complaint.

         The case was submitted to a jury over five days. The circuit court gave the jury a general-verdict form on the issue of Garrison's negligence. The court also gave the jury separate verdict forms for each element of the Hodges' damages. One of the instructions (AMI Civ. 903) informed the jury that Ark. Code Ann. § 27-51-104(b)(8), which prohibits operating a motor vehicle when the driver is inattentive and such inattention is not reasonable and prudent in maintaining vehicular control, was in effect at the time of the collision between Hodge and Garrison and that violation of that statute was evidence of negligence that the jury could consider. Mercy objected to the circuit court including section 27-51-104(b)(8) in AMI Civ. 903 on the basis that there was no evidence that Garrison was inattentive. The circuit court allowed Hodge's AMI Civ. 903 instruction to be given.

         Also over Mercy's objection, the circuit court instructed the jury that one element of damages that Hodge was claiming was for his loss of earning capacity. Mercy objected, claiming that there was no evidence regarding loss of earning capacity. According to the evidence, Hodge made approximately $1, 100 more in 2016 than he did in 2014, the year before and after the accident. Mercy specifically argued that there was no qualified expert to tie any disability rating to the loss of ability to earn income. The court overruled Mercy's objection.

         The jury found that Garrison was negligent and that such negligence was the proximate cause of the damages suffered by Bill Hodge. The jury also answered the separate verdict forms for each element of the Hodges' damages. They awarded Bill Hodge $1 million for the nature, extent, duration, and permanency of his injuries; $1 million for past and future medical expenses; $3 million for pain, suffering, and mental anguish; approximately $4, 100 for lost earnings; approximately $103, 000 for loss of earning capacity; $50, 000 for scarring and disfigurement; and $5, 500 for the difference in the fair market value of the motorcycle. The jury also awarded $100, 000 for Mary Hodge's claim for loss of consortium. The verdict form for Bill Hodge's disfigurement claim was signed only by eight of the twelve jurors; the court awarded $0 for this claim. Thus, with the exception of the disfigurement claim, judgment was entered on the jury's verdict. The total awarded by the judgment was $5, 212, 455.70.

         Mercy filed two posttrial motions-a motion for stay of enforcement of the judgment and approval of a supersedeas bond and a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a motion for new trial. The JNOV motion raised twenty-one separate issues in its request for a new trial, including that the circuit court erred in instructing the jury on inattentive driving and loss of earning capacity. Mercy also argued that it was entitled to a new trial because the verdict was excessive with respect to the claims for pain, suffering, and mental anguish; the claim for past and future medical expenses; and the claim for loss of earning capacity.

         The circuit court granted Mercy's motion for a stay but denied Mercy's JNOV motion. This appeal followed.

         On appeal, Mercy contends the circuit court erred by (1) instructing the jury on inattentive driving because there was no evidence that Garrison was driving inattentively; (2) instructing the jury on lost earning capacity because the evidence did not show that Hodge suffered any loss of earning capacity; (3) permitting Hodge's counsel to make an improper closing argument and refusing to grant a new trial to remedy the error; and (4) denying Mercy's motion for a new trial or remittitur because the jury's award of damages was grossly excessive.

         Mercy first argues that the circuit court erred in instructing the jury on inattentive driving because there was no evidence that Garrison was driving inattentively. A party is entitled to a jury instruction when it is a correct statement of the law and there is some basis in the evidence to support giving the instruction.[2] It is the duty of the circuit court to instruct the jury, and each party has the right to have the jury instructed on the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake.[3]

         Only where reasonable minds will not differ that the evidence does not establish a basis for a jury instruction is it error for the circuit court to give the instruction.[4] The level of evidence to support the giving of an instruction does not necessarily have to rise to the level of substantial evidence to support the jury's verdict.[5] Under the standard of review in this matter, this court will not reverse a circuit court's decision to submit a jury instruction unless the circuit court abused its discretion.[6]

         Mercy points to Roxanne Garrison's testimony that she was not using her cell phone, texting, smoking, or changing the radio station at the time of the collision. Mercy also points to the testimony of Sergeant Chad Morris of the Harrison Police Department that he could not tell that Garrison was distracted. However, in making this argument, Mercy ignores our standard of review. The amount of evidence required to support the giving of an instruction does not necessarily have to rise to the level of substantial evidence to support the jury's verdict.[7] There merely has to be "some basis" in the evidence to support the instruction.[8]

         Here, Garrison testified that she did not see or hear Hodge's motorcycle. Our supreme court has described similar testimony as being "inattentive" and evidence of negligence.[9] This is because one may not be heard to say that he did not see what was plain to be seen.[10] There was also testimony from Garrison from which the jury could infer that she was impatient and in a hurry because she had sat, waiting to turn for what she said seemed like "several minutes."[11] Thus, there is "some basis" in the evidence to support the giving of the instruction on inattentive driving.

         Mercy's related argument that Garrison's failure to see Hodge's motorcycle cannot be used as evidence to support giving the inattentive-driving instruction because there are separate statutory prohibitions against both failing to maintain a proper lookout and inattentive driving, is not preserved for our review. There was no objection to the giving of the instruction based on its being covered by another instruction. Nor did Mercy raise the issue in its motion for new trial. The failure to object to the giving of an erroneous jury instruction before the case is submitted to the jury constitutes a waiver of any error committed by the court in giving it.[12] Moreover, there is no logical reason why the same evidence cannot support jury instructions on more than one theory.

         Mercy makes two related arguments about Hodge's loss-of-earning-capacity claim. The first is that the circuit court erred in instructing the jury on this claim because there was no evidence to support the giving of the instruction. Mercy's second argument is that the jury's award of damages for loss of earning capacity is speculative because there was no evidence to support the jury's verdict on this issue.

         The loss of future wages and the loss of ability to earn are two separate and distinct elements of damages.[13] Loss of earning capacity is the permanent diminution of the ability to earn money.[14] The impairment of the capacity to earn is the gravamen of the element.[15] The fact that the plaintiff is earning more than at the time of the injury is a factor to be considered, but does not preclude recovery for loss of earning capacity.[16] Proof of loss of earning capacity does not require the same specificity or detail as does proof of loss of future wages.[17] If there is proof of permanent disability, this element of damages may be submitted to the jury even in the absence of specific evidence of pecuniary loss due to inability to earn in the future.[18] A numerical "impairment rating" is not essential to recovering for loss of earning capacity.[19] In the absence of direct proof of the value of the diminished capabilities, the probable diminution of earning capacity may be inferred from the nature of the injuries.[20]

         The loss of a limb permits recovery for loss of earning capacity without the specificity required for loss of future earnings.[21] The loss of earning capacity is also separate and distinct from the permanency of the injury.[22] Here, it is undisputed that Hodge suffered a permanent injury in the loss of his left leg above the knee. Therefore, the instruction as to decreased earning capacity was proper under the circumstances of this case.

         Mercy contends that there was no evidence of impairment of earning capacity, and the fact that Hodge's wages were higher after the accident than before proves no impairment-of-earning capacity. In rejecting such an argument, the Pennsylvania Supreme Court said:

The defendants contend that there was no evidence of impairment of earning power and that the fact that Bochar's wages were higher after the accident than before proves no deterioration of earning ability. A tort feasor is not entitled to a reduction in his financial responsibility because, through fortuitous circumstances or unusual application on the part of the injured person, his wages following the accident are as high or even higher than they were prior to the accident. Parity of wages may show lack of impairment of earning power if it confirms other physical data that the injured person has completely recovered from his injuries. Standing alone, however, parity of wages is inconclusive. The office worker who loses a leg has obviously had his earning ability impaired even though he can still sit at a desk and punch a comptometer as vigorously as before. It is not the status of the immediate present which determines capacity for remunerative employment. Where permanent injury is involved, the whole span of life must be considered. Has the economic horizon of the disabled person been shortened because of the injuries sustained as the result of the tort feasor's negligence? That is the test. And it is no answer to that test to say that there are just as many dollars in the patient's pay envelope now as prior to his accident. The normal status of a healthy person is to progress, and to the extent that his progress has been curtailed, he has suffered a loss which is properly computable in damages.[23]

         Our court has held that the fact the plaintiff is earning the same salary as prior to the accident is merely a factor for the jury to consider and is not conclusive.[24] Here, Hodge suffered the loss of his left leg above the knee. He also testified that he cannot fully perform all the functions of his job as before the accident. Therefore, there was evidence that his ability to earn has been limited.

         The closing argument given by Hodge's attorney is challenged in Mercy's third point. Mercy argues that the circuit court abused its discretion in not granting a new trial after permitting an improper argument.

         We accord wide discretion to the circuit court in controlling, supervising, and determining the propriety of counsel's closing arguments.[25] We will not reverse a circuit court's ruling regarding a closing argument absent a manifest abuse of discretion.[26] An abuse of discretion occurs when the circuit court acts improvidently or thoughtlessly, without due consideration.[27]

         During closing argument, counsel for Hodge was discussing the differences in the testimony and opinions of two ...


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