Bakker v. Irvine
| Decision Date | 30 November 1993 |
| Docket Number | No. 18243,18243 |
| Citation | 519 N.W.2d 41 |
| Parties | Ronald J. BAKKER and Marlys A. Bakker, Plaintiffs and Appellees, v. Amy IRVINE, Defendant and Appellant. . Considered on Briefs on |
| Court | South Dakota Supreme Court |
Gary J. Pashby and Gregg S. Greenfield and David A. Hill, Legal Intern of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for plaintiffs and appellees.
Richard Dale, Sioux Falls, for defendant and appellant.
This is an appeal by Amy Irvine, from an order of the Honorable Judith Meierhenry, Second Judicial Circuit Court, granting Ronald and Marlys Bakker's motion for a new trial on the issue of damages. We reverse.
On May 26, 1990 (Saturday of Memorial Day weekend), Amy Irvine was involved in a motor vehicle accident with Ronald and Marlys Bakker at an intersection in Sioux Falls, South Dakota. Marlys Bakker was sitting in the front seat, passenger side, of an automobile driven by her husband, Ronald. Their son was in the back seat. The Bakkers, who were heading north on Minnesota Avenue, had stopped for a red light at 37th and Minnesota Avenue. Approximately ten seconds had passed before Amy Irvine rear-ended them at an estimated speed of 30-35 mph. The force of the collision pushed the Bakkers' car through the intersection and loosened the front seat.
When the Bakker automobile came to a rest, Mr. Bakker got out and walked around it to assist his wife. Due to the pain she was experiencing, Mrs. Bakker instructed her husband not to touch her and to wait for the ambulance to arrive. Mrs. Bakker was taken to McKennan Hospital by ambulance where she was given muscle relaxers, pain pills and instructions to wear a cervical collar home. She complained of soreness in her neck, shoulder, and head and felt numbness in her right arm. Although Mr. Bakker felt soreness in his back, neck, and right knee, he never asked to see a physician while at the hospital.
After the accident Mrs. Bakker first sought treatment from her family doctor, Dr. James Burgers, on Tuesday, May 29, 1990. She was given additional pain pills and muscle relaxers. Upon his advice, she missed the equivalent of a little over three weeks of work. She last saw him in July 1990 for this accident.
On Wednesday, May 30, 1990, she sought treatment from her chiropractor, Dr. David Allen at the Brandon Chiropractic Clinic. (She had been seeing him prior to the accident for low-grade inflammatory pain between her shoulders and headaches). At this time she complained of pain from her waist up through her neck, muscular pain, stiffness, swelling, and spasms. Dr. Allen diagnosed a hyperflexion/hyperextension injury and ligament damage due to the accident. He did an initial treatment of spinal adjustment.
She sought a majority of her chiropractic care from Dr. David Ward (a successor to Dr. Allen at the Brandon Chiropractic Clinic). He treated her about once every three weeks. He testified that she sustained a permanent impairment of fourteen percent (14%) to her cervical spine. He also testified that she would probably need chiropractic care for the rest of her life. His continued treatment consists of spinal adjustment, trigger point therapy and massage.
Mrs. Bakker went through three bouts of physical therapy. In June of 1990, she began physical therapy but discontinued it six weeks later. In late 1990, she began physical therapy for another six week period. In December 1991, she began physical therapy again for a final six weeks.
Six months after the accident, on November 29, 1990, Mrs. Bakker consulted Dr. Robert E. Van Demark, an orthopedic surgeon. His X-rays revealed an abnormality in the cervical spine indicating a loss of cervical lordosis. He also diagnosed tendinitis and a separated right shoulder. He testified that the soft tissue and bone injury had healed but the resulting scar tissue will result in permanent stiffness and pain. He examined her five times total. Those office examinations occurred in the months of January 1991, December 1991, and June 1992. He gave her a seven percent (7%) impairment rating for her neck and fourteen percent (14%) impairment rating for her shoulder. He placed no restrictions on her employment or recreational activities.
While she does engage herself in low impact aerobics, Mrs. Bakker has not taken up her old pursuits of swimming, volleyball and bowling for fear that they may aggravate soreness in her right shoulder and neck. She also has her husband or children carry the groceries and do the laundry and vacuuming because they all involve lifting. She is employed at Citicorp Investment Services where she performs "desk work." Her employment has not been affected by her injuries except to the extent that she can no longer carry heavy mail trays.
Irvine hired as her medical examiner, Dr. Robert Suga, an orthopedic surgeon. He gave Mrs. Bakker an eleven percent (11%) impairment rating of the whole person based on the diminished cervical range of motion after conducting a physical and neurologic examination and history.
Mr. Bakker did not seek medical treatment until he received chiropractic treatment on Wednesday, May 30, 1990. Since then, he has been under the chiropractic care of Doctors Allen and Ward of the Brandon Chiropractic Clinic. He suffers from pain in his right shoulder and occasionally in his neck. His treatment consists of spinal adjustment, trigger point therapy and massage. As of trial, he was receiving treatment from Dr. Ward once every five weeks. Dr. Ward gave Mr. Bakker a permanent impairment rating of six percent (6%). He has never sought treatment from an orthopedic doctor.
Mr. Bakker is employed at IBP where he is in charge of the knife room supply area. He is able to meet all of the physical demands of his job other than he is no longer able to go on the line to test air knives because of the pain he encounters in his right shoulder. At home, his testimony was that when he plays softball, he no longer plays in the outfield because his shoulder is aggravated when he throws the ball back to the pitcher. Likewise, he does not play volleyball as aggressively as he used to.
In September 1992, Irvine's hired medical examiner, Dr. Suga, gave Mr. Bakker a higher impairment rating of seven percent (7%). His examination consisted of a physical exam and history. Three percent (3%) impairment concerned loss of cervical range of motion and another four percent (4%) for a soft tissue injury to the cervical spine. No restrictions were placed on his employment or recreational activities.
As of time of trial, Mrs. Bakker's out-of-pocket damages consisted of 128 1/4 hours lost from work at a pay rate of $5.53 per hour, for a total income loss of $710.36. Her other out-of-pocket damages were $5,189.22 in chiropractic expense. Her attorney sought, in his closing argument, a total of $134,469.22. The jury verdict was for $24,399.58.
Mr. Bakker's out-of-pocket damages consisted of chiropractic expenses amounting to $1,233.00 and personal property damage of $8,434.34. His attorney asked in closing argument for a total of $57,667.34. The jury verdict was for $12,517.34, which included the property damage.
Prior to the trial, Amy Irvine made an offer of judgment, pursuant to SDCL 15-6-68, to Marlys Bakker in the amount of $30,000.00 and to Ronald Bakker for $13,500.00. The jury returned an amount less than these offers.
A jury trial was conducted on December 1 and 2, 1992, in the Second Judicial Circuit Court, Minnehaha County, South Dakota. At the conclusion of Bakkers' case-in-chief, they moved for a directed verdict on the issue of liability which the trial court denied. After this, Irvine presented her case-in-chief, Bakkers presented rebuttal evidence and, then, Irvine admitted liability. Special verdict forms were submitted to the jury. The jury returned the following damage awards (which are compared with the categorical amounts and the total amounts sought by Bakkers' counsel in his closing argument):
Ronald Bakker Jury Award Sought
Past Medical Expense $ 1,233.00 1,233.00
Future Medical Expense 600.00 7,000.00
Permanent Impairment 1,000.00 10,000.00
Past Pain and Suffering 250.00 4,000.00
Future Pain and Suffering 1,000.00 17,500.00
Past Loss of Enjoyment of Life 0.00 2,000.00
Future Loss of Enjoyment of Life 0.00 5,000.00
Past Loss of Spousal Services and Consortium 0.00 1,000.00
Future Loss of Spousal Services and Consortium 0.00 1,500.00
Property Damage and Other Damage 8,434.34 8,434.34
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Total 1 $12,517.34 57,667.34
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Marlys Bakker
Past Medical Expense $ 5,189.22 5,189.22
Future Medical Expense 6,000.00 13,600.00
Permanent Impairment 5,000.00 25,000.00
Past Pain and Suffering 1,250.00 10,000.00
Future Pain and Suffering 2,500.00 60,000.00
Loss of Earnings 710.36 710.36
Past Loss of Enjoyment of Life 1,250.00 5,000.00
Future Loss of Enjoyment of Life 2,500.00 15,000.00
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Total 1 $24,399.58 134,469.22
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The Honorable Judith...
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