Black v. Hieb's Enterprises, Inc., 83-2166

Decision Date14 November 1986
Docket NumberNo. 83-2166,83-2166
Citation805 F.2d 360
Parties22 Fed. R. Evid. Serv. 61 Brian K. BLACK, Plaintiff-Appellant, v. HIEB'S ENTERPRISES, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Michael J. Friesen (Phyllis F. Wendler, Michael J. Friesen, P.A., with him on the briefs), Michael J. Friesen, P.A., Garden City, Kan., for plaintiff-appellant.

T.J. Carney (Casey Law, Turner and Boisseau, Chartered, with him on the brief) Turner and Boisseau, Great Bend, Kan., for defendant-appellee.

Before HOLLOWAY, BARRETT and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff-appellant Brian Black (Black) brought this products liability suit against defendant-appellee Hieb's Enterprises, Inc. (Hieb). A jury trial was conducted, and the jury returned a verdict allocating fault and assessing damages. Black moved for a new trial and to correct the verdict. The trial judge denied both of these motions, and Black appeals both denials. Black also appeals the lower court's decisions to exclude from the evidence presented at trial certain deposition testimony by Mr. Hieb which referred to his liability insurance, and to direct a verdict in favor of Hieb on the issue of punitive damages. We affirm the district court on all issues.

In January 1981, Black was injured during an attempt to tow his vehicle out of a snow bank. Black and Fred Hemmert (Hemmert) attempted to pull Black's vehicle out of the snow by fastening one end of a synthetic rope belonging to Hemmert to the rear of Black's vehicle, and attaching the other end of the rope to the hitch ball on the rear bumper of Hemmert's truck. As the synthetic rope was pulled taut, the hitch ball on Hemmert's truck broke off of the bumper. The stored energy in the rope caused the hitch ball to be propelled through the rear window of Black's vehicle. The ball struck Black in the face, causing facial fractures, scarring, the loss of an eye, and dental injuries.

Black brought this diversity suit in the federal district of Kansas. 28 U.S.C. Sec. 1332. Black's complaint contained theories of strict products liability, negligence, and breach of warranty against the manufacturer of the rope (Hieb), several entities involved in the distribution of the rope, and the manufacturer and distributor of the hitch ball. The complaint also contained a prayer for punitive damages against these parties. No claim was brought against Hemmert. Prior to trial by jury, all named defendants except Hieb were dismissed from the suit. The trial judge granted a directed verdict in favor of Hieb on the punitive damages claim. Fed.R.Civ.P. 50; Rec. vol. II at 670-71. The jury returned a verdict allocating fault as follows: Black--45%, Hemmert--45%, Hieb--10%, hitch ball manufacturer--0%. Rec. vol. I at 234-35. The total damages to Black are specified in the special verdict form to be $55,000. Id. Judgment was entered in accordance with the jury verdict. Rec. vol. I at 238. The net result of the jury's fault allocation and damage assessment as reflected in the special verdict was a $5,500 award from Hieb to Black. Rec. vol. I at 268, vol. II at 709.

After judgment was entered, Black filed a motion for new trial, along with a motion requesting the district court to correct the net amount awarded to Black. The lower court denied both motions, noting that the case had been fully and fairly tried, and that it would not invade the province of the jury and disturb the verdict. Rec. vol. II at 717-22. Black filed a timely appeal with this court, appealing the denial of the post-trial motions, as well as the trial court's directing of a verdict as to punitive damages and an evidentiary ruling pertaining to evidence of Hieb's liability insurance. 28 U.S.C. Sec. 2107.

Black first contends that the trial judge erred in denying his motion for new trial, and that a new trial is proper because the jury's verdict (1) awards inadequate damages and (2) is clearly against the weight of the evidence. We disagree with both contentions.

In reviewing the trial judge's determination that the damages awarded by the jury were not so inadequate as to require a new trial, we are to determine whether the trial judge has abused his discretion. Brown v. Richard H. Wacholz, Inc., 467 F.2d 18, 19-20 (10th Cir.1972). However, no abuse of discretion will be found unless the verdict is so inadequate "as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption, or other improper cause invaded the trial." Bennett v. Longacre, 774 F.2d 1024, 1028 (10th Cir.1985) (quoting Barnes v. Smith, 305 F.2d 226, 228 (10th Cir.1962)). Absent such a showing of passion or prejudice, the jury's finding on damages is considered inviolate. Acree v. Minolta Corp., 748 F.2d 1382, 1388 (10th Cir.1984); Barnes v. Smith, 305 F.2d at 228. In the present case, Black has offered no objective evidence to indicate passion or prejudice on the part of the jury. While such bias or passion might be inferred from the unreasonable inadequacy of the verdict itself, Brown v. Richard H. Wacholz, Inc., 467 F.2d at 20 n. 2, the $55,000 figure in this case is not so inadequate as to raise such an inference.

In this case, as in most cases, "the only guide available upon review to test the properness of an award is a comparison of amount with injury." Barnes v. Smith, 305 F.2d at 228. See also Brown v. Richard H. Wacholz, Inc., 467 F.2d at 20 n. 2. In determining the adequacy of a damage award, we look to the total amount of damages awarded by the jury prior to reduction to account for allocation of fault. See Thezan v. Maritime Overseas Corp., 708 F.2d 175, 182-83 (5th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). The special verdict returned by the jury reflected a total amount of $55,000 to compensate Black for his injuries. The injuries, as claimed by Black in both his complaint and amended complaint, include "facial lacerations and scarring, facial fractures, the loss of one eye, emotional harm, loss of employment and employment prospects, pain and suffering now and in the future, loss of marital opportunity and other damages." Rec. vol. I at 2, 13. The trial judge instructed the jury to award damages that would compensate Black for past and future injuries including pain, suffering, disability, disfigurement, mental anguish, medical expenses, and loss of income. Rec. vol. I at 222.

The medical expenses in this case serve as objective evidence as to one element of Black's damages. See Bennett v. Longacre, 774 F.2d at 1028. At the time of the trial, these medical bills totaled approximately $6,000. The verdict of $55,000 is well in excess of the accrued medical expenses, awarding approximately $49,000 for Black's damages other than those medical expenses which had been paid at the time of trial. Thus, this is not a case of the jury ignoring or failing to take into account the various elements of damages other than out-of-pocket or accrued damages. See Brown v. Richard V. Wacholz, Inc., 467 F.2d at 20-21.

The jury heard testimony regarding the past medical expenses and future medical expenses that might be incurred, as well as testimony regarding pain and suffering and the effect of the accident on Black's life. Furthermore, the jury had an opportunity to observe Black and determine the extent of any disfigurement resulting from the accident. It was the jury's function, as the trier of fact, to determine the amount of damages that would fairly compensate Black, and the jury has wide discretion in making that determination. Bennett v. Longacre, 774 F.2d at 1028. Our review of the record confirms the trial judge's conclusion that the evidence was fairly before the jury and their decision should not be overturned. While it is indeed difficult to place a dollar amount on personal injuries like those incurred by Black, the award of $55,000 for Black's injuries, although disappointing to the trial judge, is not so inadequate as to shock the judicial conscience and raise an inference of passion, prejudice, or other improper cause. Accordingly, we cannot say that the denial of a new trial for inadequacy of the damages was a clear abuse of discretion by the trial judge.

Black further asserts that the trial judge erred in failing to grant a new trial on the grounds that the jury's determinations as to both damages and allocation of fault were clearly against the weight of the evidence. We disagree.

A motion for new trial on the grounds that the jury verdict is against the weight of the evidence normally involves a review of the facts presented at trial, and thus involves the discretion of the trial court. Brown v. McGraw-Edison Co., 736 F.2d 609, 617 (10th Cir.1984); Harris v. Quinones, 507 F.2d 533, 535 (10th Cir.1974); Community Nat'l Life Ins. Co. v. Parker Square S & L Ass'n, 406 F.2d 603, 605 (10th Cir.1969). The trial court's decision to deny a motion for a new trial will stand absent a showing of a manifest abuse of discretion. Brown v. McGraw-Edison Co., 736 F.2d at 617; Howard D. Jury, Inc. v. R & G Sloane Mfg. Co., Inc., 666 F.2d 1348, 1352 (10th Cir.1981); Walter v. Warner, 298 F.2d 481, 484 (10th Cir.1962). The inquiry focuses on whether the verdict is clearly, decidedly or overwhelmingly against the weight of the evidence. Champion Home Builders v. Shumate, 388 F.2d 806, 808 (10th Cir.1967); Locke v. Atchison, Topeka & Santa Fe Ry. Co., 309 F.2d 811, 817 (10th Cir.1962); Prebble v. Brodrick, 535 F.2d 605, 617 (10th Cir.1976).

The amount of damages awarded by the jury can be supported by any competent evidence tending to sustain it, and "[o]ur appellate function is completed when we are convinced that an evidentiary basis in the record supports the jury's verdict." Bennett, 774 F.2d at 1028. As noted earlier, evidence of Black's injuries was placed before the jury, and the jury made its determination as to damages. Black argues, however, that "the...

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