SUTHERLANDS LUMBER & HOME v. Whittington, 2002-CA-00789-COA.

• Decision Date: 19 August 2003
• Docket Number: No. 2002-CA-00789-COA.,2002-CA-00789-COA.
• Citation: 878 So.2d 80
• Court: Mississippi Court of Appeals
• Parties: SUTHERLANDS LUMBER & HOME CENTER, INC., Appellant, v. Felicia WHITTINGTON, Appellee.

878 So.2d 80

SUTHERLANDS LUMBER & HOME CENTER, INC., Appellant, v. Felicia WHITTINGTON, Appellee.

No. 2002-CA-00789-COA.

Court of Appeals of Mississippi.

August 19, 2003.

Rehearing Denied February 3, 2004.

Certiorari Denied July 29, 2004.

Jan F. Gadow, H. Gray Laird, III, Ridgefield, Jamie Deon Travis, attorneys for appellant.

Rhonda C. Cooper, Calvin C. Williams, Jackson, attorneys for appellee.

Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.

LEE, J., for the Court.

PROCEDURAL HISTORY

¶ 1. Appellee Felicia Whittington was injured when a Sutherlands employee dropped a sink on her while she was shopping at a Sutherlands store in Jackson. Thereafter, Whittington sued Sutherlands, and after a trial in February 2002, the jury returned a verdict in Whittington's favor in the amount of $275,000. Sutherlands filed a motion for new trial on damages or, alternatively, a remittitur, but the motion was denied. Sutherlands subsequently perfected its appeal to this Court and argues the following: (1) the verdict is against the overwhelming weight of the evidence; (2) the jury was confused by a faulty jury instruction; (3) the jury's excessive damage award is a result of bias, passion and prejudice.

FACTS

¶ 2. On December 14, 1995, Felicia Whittington was shopping at Sutherlands. Sutherlands employee Brian Dixon assisted Whittington and her friends as they looked at plumbing supplies, and during this time another employee, Edward Dressner, was climbing a ladder in the same aisle to retrieve a sink. As Dressner was climbing down the ladder with the sink, the cardboard handles broke on the box containing the sink, and the sink fell to the ground hitting Whittington on her leg ¶ 3. After the incident, Whittington was taken by ambulance to the hospital where she was treated and released within six hours. Three days later, Whittington returned to the hospital complaining of headaches, although she did not recall hitting her head on anything. A CAT scan the following day produced normal results, and Whittington went to another doctor the following month complaining about her knees, back, neck, headaches and nightmares. In May 1996, Whittington also was examined by a clinical psychologist for depression and anxiety, and the doctor diagnosed Whittington with post-traumatic stress disorder. By October of the same year, Whittington reported to her psychologist that she was getting back to normal and was pleased with her progress. The psychologist referred Whittington to a neurologist for her headaches and after a course of treatment Whittington seemed to be better. The total cost of her medical bills related to the incident computed to $23,978.

DISCUSSION OF THE ISSUES

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 4. Sutherlands first argues that the verdict is against the weight of evidence, and we look to our standard of review.

"In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial." The jury is the ultimate judge of the weight of the evidence and the credibility of the witnesses. Because of the jury verdict in favor of the appellee, this Court will resolve all evidentiary conflicts in the appellee's favor and will draw all reasonable inferences which flow from the testimony given in favor of the appellee. We will not set aside the jury's verdict unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

Trustmark Nat'l Bank v. Jeff Anderson Reg'l Med. Ctr., 792 So.2d 267(¶ 18) (Miss.Ct.App.2000) (citations omitted).

¶ 5. Sutherlands argues that Whittington did not prove the existence of a head injury at the time of the accident. Three witnesses on the scene testified that Whittington did not hit her head. Whittington, herself, did not report a head injury or loss of consciousness to the paramedic or to the emergency room physicians upon arriving there and remaining there for six hours after the accident. In fact, Whittington did not actually testify that she hit her head, only that, after the box hit her legs, she "woke up" crying from the pain to her legs. However, Whittington did return to the emergency room a few days later complaining of headaches, dizziness, nausea, and vomiting. When asked if she had hit her head, Whittington told the emergency room personnel that she did not know. Although a CAT scan revealed everything to be normal, Whittington was still experiencing headaches. Later, she was diagnosed as having post-traumatic migraines.

¶ 6. There was also testimony that Whittington had a high stress job as a violence prevention coordinator. Whittington further testified that she had fallen down some steps at work approximately a month and a half prior to the accident at Sutherlands and she had been involved in a car accident the day after her fall at work. After each accident, Whittington went to the emergency room where she complained of back pain on both occasions. ¶ 7. Dr. Bell, Whittington's expert, testified that without some head injury or trauma suffered in the fall, then the headaches experienced by Whittington were not caused by the accident. In her deposition, Dr. Bell also stated that Whittington could have caused her own headaches by taking numerous over-the-counter analgesics.

¶ 8. There was ample evidence for the jury to find that Whittington did injure her knee and needed compensation for that particular injury. However, given the testimony at the trial and the lack of any evidence of a head injury to Whittington, we find that the lower court abused its discretion in failing to grant a new trial. We must reverse and remand on this issue for a new trial on damages.

II. WAS THE JURY CONFUSED...