859 F.2d 1490 (D.C. Cir. 1988), 87-7231, Wood v. Day

Docket Nº:87-7231.
Citation:859 F.2d 1490
Party Name:Anna May WOOD v. Rocky Alan DAY and Giant Food, Inc., Appellants.
Case Date:October 28, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1490

859 F.2d 1490 (D.C. Cir. 1988)

Anna May WOOD

v.

Rocky Alan DAY and Giant Food, Inc., Appellants.

No. 87-7231.

United States Court of Appeals, District of Columbia Circuit.

October 28, 1988

Page 1491

Argued Sept. 15, 1988.

Jayson L. Spiegel, with whom Dwight D. Murray and David P. Durbin, Washington, D.C., were on the brief, for appellants. Mary Ann Snow, Washington, D.C., also entered an appearance for appellants.

H. Vincent McKnight, Jr., Washington, D.C., with whom James M. Hanny, Landover, Md., was on the brief, for appellee.

Before WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

This appeal is from a judgment entered on a jury's verdict in a case of negligence arising from a rear-end collision. Because liability was admitted by defendants, Rocky Alan Day and Giant Food, Inc. (collectively "appellants"), the sole issue at trial was damages. The jury awarded plaintiff Anna May Wood ("Wood" or "appellee") damages of $100,000 via a general verdict. Appellants argue that the verdict was based on erroneous instructions allowing recovery for elements of damages not supported by the evidence. We agree, vacate the award, and remand for further proceedings.

FACTUAL BACKGROUND

The facts, considered in the light most favorable to the appellee, are as follows:

Appellee, a woman of approximately fifty-two years of age, had been living asymptomatically with a degenerative spinal condition known as spondylolisthesis, the breaking down or slipping of the vertebral column. On November 17, 1983, a taxi cab occupied by Ms. Wood was struck from behind by a tractor-trailer driven by appellant Day, an employee of the trailer's owner, appellant Giant Food, Inc. Ms. Wood was taken from the scene to Prince George's General Hospital, where she was examined, x-rayed, and released shortly thereafter.

Beginning on November 28, 1983, and over the next three years, Ms. Wood made 22 visits to an orthopedist, Dr. Rida Azer. Dr. Azer initially recommended physical therapy and prescribed medication, opining that further testing would be required if her condition did not improve. For approximately three years, Ms. Wood underwent numerous tests and treatments, including regular participation in physical therapy. Over the years, the frequency of her consultations and treatment tapered off, so that by May 1987, Ms. Wood had seen Dr. Azer only twice in the preceding eleven months, and had been advised by him to cease therapy.

At trial Ms. Wood testified that prior to the accident she had been a cashier at a department store for more than twenty years, and that, though limited to "light duties" after the accident, she remained employed by the company in an associated store. Ms. Wood testified that she was in

Page 1492

constant pain and that her range of activities was considerably diminished. Although appellee introduced no evidence as to her pre-accident earnings, she testified that her new position paid $6.80 per hour.

The evidence at trial established that Ms. Wood had sustained permanent injury to the lumbosacral spine and a narrowing of the intervertebral disc space as a result of the accident, causing further spinal degeneration. Though Dr. Azer testified that Ms. Wood's condition worsened from a grade one to a grade two spondylolisthesis within two weeks of the accident...

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