Curtiss v. Young Men's Christian Association, 372--III

• Decision Date: 12 June 1972
• Docket Number: No. 372--III,372--III
• Citation: 498 P.2d 330,7 Wn.App. 98
• Parties: Charlene CURTISS, a minor, by and through her Guardian ad Litem, Gerry H. Curtiss, Respondent, v. YOUNG MEN'S CHRISTIAN ASSOCIATION of the Lower Columbia Basin, a nonprofit Washington corporation, Defendant, Premier Athletic Products Corporation, a New Jersey corporation, Appellant.
• Court: Washington Court of Appeals

Page 98

7 Wn.App. 98

498 P.2d 330

Charlene CURTISS, a minor, by and through her Guardian ad Litem, Gerry H. Curtiss, Respondent, v. YOUNG MEN'S CHRISTIAN ASSOCIATION of the Lower Columbia Basin, a nonprofit Washington corporation, Defendant Premier Athletic Products Corporation, a New Jersey corporation, Appellant.

No. 372--III.

Court of Appeals of Washington, Division 3.

June 12, 1972.

As Corrected July 28, 1972.

Rehearing Denied July 31, 1972.

See 499 P.2d 915.

John Gavin and Robert R. Redman, of Gavin, Robinson, Kendrick, Redman & Mays, Yakima, for appellant.

Theodore D. Peterson, and Robert S. Day, of Peterson, Taylor & Day, Pasco, for respondent.

GREEN, Judge.

Plaintiff, Charlene Curtiss, brought this action against defendants, Premier Athletic Products Corporation, hereafter called 'Premier', and the Young Men's Christian Association of the Lower Columbia Basin, hereafter called the 'YMCA', to recover damages for severe and permanent personal injuries suffered by her at the YMCA when the high bar of a set of parallel bars collapsed during use. At the conclusion of the evidence, the trial court dismissed the YMCA and directed the jury to return a verdict against Premier. A verdict was returned for $100,000, consisting of medical expenses in the sum of $15,140.20, $25,000 for future expenses and $59,859.80 general damages. Thereafter, the trial court granted plaintiff's motion for a new trial on damages only, stating in essence the award of general damages was grossly inadequate. Defendant Premier appeals from this order. No appeal was taken from the dismissal of the YMCA.

Two basic questions are presented: (1) Did the trial court err in granting a new trial? and if not, (2) Was it error to direct a verdict against Premier? We answer both in the negative.

In granting plaintiff's motion for new trial, the trial judge said the verdict for general damages was so grossly inadequate as to 'shock', 'stun', and 'shatter' him, causing him to believe that substantial justice had not been done. He concluded his oral opinion, saying:

Now, here in the future and in the past she has suffered so much, just unbelievably it seems to me . . . and her life had been so completely devastated in so many ways, and to say that this--and I am interpreting this in terms of Dr. Silverman's testimony and the most conservative testimony available here, that this girl is a paraplegic. The fact she is paralyzed which really in some respects is the minor part of her injuries this matter of incontinence, she can't go to school, she can't go to work without danger of incontinence which is terribly embarrassing actually and limits her activities and things she might take part in. In addition to that she has disability with respect to control of her bowels and all of the little personal items that one who had not heard this evidence would never dream were involved in a disability of this nature.

Frankly, I can't imagine the theory upon which this amount was arrived at. It just simply stunned me at the time. It stuns me now. I simply do not believe that the human life is to be placed on this meager scale financially.

The granting of plaintiff's motion for new trial because of inadequate damages must be viewed in light of the evidence most favorable to Premier. This evidence discloses that at the time of her injuries plaintiff was 17 years of age, was well coordinated, had earned a number of honors in gymnastics and had a life expectancy of 51.28 years. On the evening of June 9, 1968, she was attending a class in gymnastics at and under supervision of the YMCA. The gymnastics were performed on a set of parallel bars placed in what is called an uneven position, with one bar higher than the other. After warming up, plaintiff took hold of the highest of the uneven bars with both hands, intending to swing around the upper bar and onto the lower bar in a maneuver called a 'sole circle.' While she was engaged in this maneuver, the top bar separated from the metal saddles at each end to which the bar was affixed, and she fell 5 to 7 feet, landing on her back in a jack-knife position, half on and half off the mat.

As a result of this fall, plaintiff sustained a fracture dislocation at the 12th thoracic level (the mid-portion of the back), causing severe pressure on the spinal cord accompanied by excruciating pain and paralysis in her legs. A laminectomy was performed that night to relieve the pressure and 2 months later the vertabrae were fused to prevent further movement. Four months after the injury she was allowed to be up with a back brace. She received physical therapy and eventually learned to walk with crutches, wearing special boots to support her ankles. Later she received a set of short leg braces that helped stabilize her ankles.

In the summer of 1969, plaintiff underwent a 3-week evaluation in the Department of Physical Medicine and Rehabilitation at the University of Washington. On September 30, 1970, she was examined on behalf of defendant by Dr. Donald Silverman, Director of the Department of Rehabilitation Medicine at Providence Hospital in Seattle who had reviewed the reports of examination at the University of Washington. He found that, although plaintiff had control of some of the muscles in both legs allowing her to keep her knees from buckling when standing and permitting her to swing both legs forward to back, she was an incurable paraplegic. He also found that because of only partial damage to the spinal cord, she has complete sensation in her right leg but suffers from a lack of sensation or feeling from the knee down in the front of her left leg and from the thigh down in the back of her left leg. There is no feeling or sensation in either foot.

These conditions give rise to numerous problems noted by Dr. Silverman in his testimony: (1) She has no control over bowel movements and must use suppositories daily. This condition is permanent. (2) She suffers from incontinence of her bladder, requiring her to wear perineal pants and sanitary napkins all the time. When she voids she excuses herself and goes to change her clothes. Dr. Silverman suggested, as an alternative, that she use a catheter connected to a bag that could be strapped to the inside of her thigh to collect urine for a 4-to 5-hour period, thus allowing her to stay dry. However, plaintiff chose the other method because of several bladder infections caused by the use of a catheter while hospitalized. This condition is permanent and renders her more susceptible to infection. (3) Serious skin problems are present, resulting from the loss of feeling or protective sensation on the bottom of her feet. When Dr. Silverman saw the plaintiff, her feet were in very bad condition. The left foot had been burned on the outer side. Plaintiff thought this occurred while she was riding in a truck when the heat from the engine was transmitted through the floor to her foot. This burn had healed. There were other healed scars reflecting prior ulcerations on the ball of the left foot. There were blisters present, together with minor ulcerations, on a line along the rim of the left foot where the top of the shoe had touched the foot. Plaintiff's right foot showed a deep ulceration, with pus and oozing of tissue fluid, on the bottom of the big toe. It was surrounded by necrotic (dead) tissue. There was another ulceration over the right heel cord and on the left heel, with pus draining therefrom. Both feet were markedly swollen with a clear fluid oozing from the open areas. Her legs were swollen due to lack of circulation. Dr. Silverman suggested that she wear elastic stockings to support the muscles in her legs and improve the circulation. He noted these stockings were not very cosmetic. Dr. Silverman stated plaintiff would be committed to a wheel chair if she loses her ability to walk. Although Dr. Silverman disagreed, one of plaintiff's doctors predicted she would have 10 surgical operations--one every 2 years--and gradually her legs would require amputation. (4) Dr. Silverman noted that plaintiff does not have normal heel-toe gait, I.e., where the heel first strikes the ground and then the toe quietly come down. As a result of the injury, plaintiff's ankles have contractures so that instead of standing in an upright position with her foot and ankle at a 90-degree angle, a tightness in the back of the ankle and a shortening of the heel cord causes plaintiff's feet to point downward about 30 degrees. As a result, when plaintiff walks the weight falls on her toe and forefoot much like women who wear high heels. The difference is that plaintiff does not have a protective sensation to warn her of sore feet so that she can take off her shoes. Further, she cannot take off her shoes and still walk because she needs the brace attached to the shoe in order to walk. Also, there is a deformity in both ankles that causes the foot to turn outward, and as a result she tends to bear her weight on the inner edge of her foot. By reason thereof, she must align her body segments by leaning forward slightly to keep from collapsing at the knee and hips because of her partial paralysis. Unless this condition can be corrected, it is very likely that in the future plaintiff will have to wear long leg braces due to the strain on the ligaments at the knee. These conditions aggravate her skin problems. She also has a genetic condition of bunions and out-turned large toes which did not result from the accident, but contributes to the difficulty of management of the skin on her feet. (5) Plaintiff has an angulation at the point of fracture (hunchback) which is not...