Bass v. Hermiston Medical Center, P.C.

Decision Date28 August 1996
CourtOregon Court of Appeals
PartiesHelen E. BASS, Appellant, v. HERMISTON MEDICAL CENTER, P.C., an Oregon professional corporation, Respondent. CV 931070; CA A87968.

Kevin L. Cathcart, Beaverton, argued the cause and filed the briefs for appellant.

Brant Medonich, Bend, argued the cause and filed the brief for respondent.

Before De MUNIZ, P.J., and LEESON and HASELTON, JJ. HASELTON, Judge.

Plaintiff brought this personal injury action after falling on an icy sidewalk in front of defendants' clinic. The jury found defendants 55 percent negligent and plaintiff 45 percent negligent and returned a verdict for $6,454.24 in economic damages and $0 in noneconomic damages. Plaintiff appeals, assigning error to the trial court's refusal to reinstruct the jury after the verdict was returned and to its denial of her motion for a new trial. We affirm.

When the jury returned its verdict, plaintiff objected, because the jury had not awarded noneconomic damages, although it had awarded economic damages. She argued that the verdict was "insufficient" and that the jury "should be charged to return to redeliberate" the question of noneconomic damages. The trial court denied the request to reinstruct, inter alia, because

"there was no request for a special exception, no request for this instruction now cited to [from Dutra v. Tree Line Transportation, Inc., 112 Or.App. 330, 831 P.2d 691 (1992) ] nor any exception given to the court in its jury instructions, and that's specifically--and I want to be clear on the record why I follow that process and why I think trial court rules require that process, is so that everyone is fairly apprised of the jury instructions before the jury deliberates."

The trial court later denied plaintiff's motion for a new trial, made on the same ground.

In Wheeler v. Huston, 288 Or. 467, 479, 605 P.2d 1339 (1980), the court examined the development of the rule governing the validity of verdicts awarding only economic damages 1 and restated the rule:

"If there is a question of whether any general [noneconomic] damages were sustained, the jury may conclude that the plaintiff suffered no general damages but did reasonably incur wage loss and/or medical expense. Such verdicts are valid and include cases in which (a) the plaintiff's evidence of injury is subjective, (b) there is evidence that the plaintiff's injuries for which general damages are claimed were not caused by the accident, and (c) the objective evidence of a substantial injury sustained by plaintiff is controverted by other competent evidence, or could be disbelieved by the trier of fact." (Emphasis in original; footnote omitted.)

Plaintiff argues that her case does not come within the exceptions noted in Wheeler because the evidence is uncontroverted that she sustained injury as a result of defendants' negligence. She points, inter alia, to testimony by her doctor that she sustained a concussion as a result of the fall as shown by the fact that she vomited in the clinic after the fall, and evidence that she had a "large knot" on the back of her head.

Defendants argue that plaintiff waived any objection to the verdict, because she made no motion for a directed verdict or special instructions that would require the jury to award noneconomic damages. 2 Plaintiff counters that she did not "waive" her right to object because she requested reinstruction after the verdict was announced.

In tracing the development of the rule regarding the validity of "specials only" verdicts, the Wheeler court did not confine its discussion only to the rule. The court was aware that the issue had created confusion at the trial and appellate levels, 288 Or. at 471, 605 P.2d 1339, and announced a requirement with prospective application:

"One further aspect of this question requires discussion. Since the decisions in Saum [v. Bonar, 258 Or. 532, 484 P.2d 294 (1971) ] and Eisele [v. Rood, 275 Or. 461, 551 P.2d 441 (1976) ], it has been clear that the validity of a verdict in the amount of the claimed specials only is determined by the evidence.

"In a jury trial, questions concerning the sufficiency of the evidence are normally addressed prior to the judge's instructions to the jury. This gives the trial judge the opportunity to rule on evidentiary matters prior to verdict, thus avoiding many post-verdict hassles as to evidentiary matters. * * *

"[I]f the evidence in a personal injury case is such that reasonable people could not disagree that the defendant is legally liable for any injuries sustained by the plaintiff in an accident, the plaintiff should appropriately request that the jury be instructed that the defendant's liability has been established. In the absence of such a request, a verdict for the defendant is immune from attack by the plaintiff on the ground that the trial court failed to instruct the jury that the defendant's liability had been established and that the defendant was liable for all injuries resulting from the defendant's fault. There is no reason why the question of the plaintiff's right to recover general damages or uncontroverted special damages should be treated any differently. We hold, therefore, that if the plaintiff claims that the right to recover general damages has been established as a matter of law, and that the jury must therefore award some general damages if they find defendant liable, the plaintiff should request that an appropriate instruction be given to that effect. Such an instruction might read as follows:

'If you find that the plaintiff is entitled to recover, you must award some general damages to the plaintiff, pursuant to the following instructions * * *.' [Ellipsis in original.]

" * * * * *

"If the plaintiff's attorney claims that the plaintiff has established, beyond question, the claim to general damages * * * but fails to bring these matters to the attention of the trial judge by appropriate motion or requested instruction, any objection to a verdict in the amount of only the claimed specials will be deemed waived. This rule (requiring timely request to the trial court) will apply to cases tried after the publication of this opinion in the advance sheets." Id. at 480-82, 605 P.2d 1339 (emphasis supplied; footnote omitted).

Thus, under Wheeler, a plaintiff must bring the issue of noneconomic damages to the trial court's attention, before the case is initially submitted to the jury, either by requesting special instructions or by moving for a directed verdict on the issue. 3 If the plaintiff fails to do so, the plaintiff will be deemed to have waived any objection if the jury returns a verdict that awards economic damages but does not award noneconomic damages.

Plaintiff does not address that holding from Wheeler, relying instead on Dutra and Hovey v. Davis, 120 Or.App. 425, 852 P.2d 929, rev. den. 318 Or. 26, 862 P.2d 1306 (1993). In Hovey, the plaintiff objected when the jury returned a verdict awarding economic but not noneconomic damages. The case was then resubmitted to the jury with a new instruction: " 'If you choose to award economic damages as you have here, then you must award some noneconomic damages.' " 120 Or.App. at 427, 852 P.2d 929. The defendant excepted to the court's refusal to receive the jury's first verdict, as well as to the wording of the court's reinstruction. The jury then returned a verdict awarding both economic and noneconomic damages, and defendant appealed. In affirming, we addressed, and rejected, two arguments: (1) The trial court erred in resubmitting the case to the jury because "the first verdict for economic damages only was proper" in that the evidence of noneconomic damages was so controverted that the jury could decline to award such damages. Id. at 427-28, 852 P.2d 929 (noting defendant's objection: " 'This is a case where they [the jury] could do it.' "). (2) The court's reinstruction on resubmitting the case to the jury was erroneous because it gave the "impression" that the jury could not, if it so chose, revisit and withdraw its award of noneconomic damages. Id. at 427, 430, 852 P.2d 929. Hovey did not address the waiver argument presented here. That is, Hovey did not consider whether any failure on the plaintiff's part to move for a directed verdict or request...

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3 cases
  • Fatehi v. Johnson, 0210-10156.
    • United States
    • Oregon Court of Appeals
    • September 20, 2006
    ...of wages were characterized as general damages, but the statute classifies them as economic damages. Bass v. Hermiston Medical Center, P.C., 143 Or.App. 268, 270 n. 1, 922 P.2d 708 (1996). However, lost wages are not at issue in this case. Therefore, we assume, for purposes of this case, th......
  • State v. Ramos
    • United States
    • Oregon Supreme Court
    • February 19, 2016
    ...costs to repair damaged property. See, e.g., ORS 31.710(2)(a) (defining economic damages)."See also Bass v. Hermiston Medical Center, P.C., 143 Or.App. 268, 270 n. 1, 922 P.2d 708 (1996) (after statutory changes made in the 1980s, "the bench and bar appear to have generally equated economic......
  • Mays v. Vejo
    • United States
    • Oregon Court of Appeals
    • December 10, 2008
    ...damages by failing to either request this instruction or move for a directed verdict on the issue. Bass v. Hermiston Medical Center, P.C., 143 Or.App. 268, 273, 922 P.2d 708 (1996). Put simply, "the rule as stated in this instruction, to which both parties agreed, became binding upon both o......

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