Davis v. Graviss

• Court: Supreme Court of Kentucky
• Writing for the Court: LEIBSON; STEPHENS; VANCE, J., dissents and files a separate opinion in which STEPHENSON; VANCE; STEPHENSON
• Citation: Davis v. Graviss, 672 S.W.2d 928 (Ky. 1984)
• Decision Date: 31 May 1984
• Parties: Sandra L. DAVIS (now Litten), Appellant, v. George GRAVISS, Appellee.

Page 928

672 S.W.2d 928

50 A.L.R.4th 1

Sandra L. DAVIS (now Litten), Appellant, v. George GRAVISS, Appellee.

Supreme Court of Kentucky.

May 31, 1984.

J. Leonard Rosenberg, Cecil Davenport, Hanish, Davenport, Rosenberg & Weiner, Louisville, for appellant.

William S. Bowman, Leslie M. Murray, Stiles & Bowman, Louisville, for appellee.

LEIBSON, Justice.

The issue is whether the Court of Appeals erred in setting aside the verdict in this case as excessive. From our review of the record we conclude that the evidence was sufficient to support the jury's verdict and that the Court of Appeals' standard for review was inappropriate. We reverse the Court of Appeals and affirm the verdict and judgment of the trial court.

It is difficult to summarize the evidence because there are two versions, both documented by the record depending upon how one views it. One view was expressed in the appellant's brief and accepted by the jury and the trial court. A second view was expressed in the appellee's brief and accepted by the Court of Appeals. As an appellate court reviewing the evidence to decide whether the verdict should be set aside as excessive, "our task is ... only to determine what are the most favorable conclusions the jury was authorized to draw." L & N Railroad Co. v. Mattingly, Ky., 339 S.W.2d 155, 160 (1960). Beatrice Foods Co. v. Chatham, Ky., 371 S.W.2d 17 (1963) states the rule thusly:

"(T)his court will not invade the jury's province to weigh conflicting evidence, judge the credibility of witnesses and draw the ultimate conclusion." 317 S.W.2d at 19.

Appellant's claim arises out of a motor vehicle collision on December 1, 1978, in Jefferson County. It was an intersection collision between the car she was driving and appellee who approached from the opposite direction and made a left turn in front of her. She was taken injured from the scene and hospitalized for four (4) days. She was treated for a broken nose, dislodged teeth, contusions of the mouth, dizziness, disorientation and concussion. Subsequently following episodes of drainage of a clear, watery fluid from her nose, she was diagnosed as suffering from a basilar skull fracture or other injury causing leakage of cerebral spinal fluid through the cribriform plate.

A number of different doctors testified in the case, including two neurosurgeons, an ear, nose and throat specialist, a clinical psychologist, and a vocational expert. Their testimony establishes with reasonable probability ¹ that as a result of the accident plaintiff has a permanent defect in the base of her skull which will result in episodes of cerebral spinal fluid leakage of indeterminate frequency. This condition creates a potential for future complications from infection including meningitis, brain abscess or other neurological problems. In short, the injury is potentially devastating. One neurosurgeon has advised the appellant to undertake surgery as a preventive measure and one has advised such surgery is too difficult and dangerous, involving risks of death, blindness, paralysis, speech disturbances or seizures.

Appellee argues that the appellant is not entitled to compensation for the danger of future complications, no matter how fearful the prospect, unless it can be shown that such complications will probably occur. While conceding the proof establishes the likelihood of future episodes of leakage of cerebral spinal fluid, appellee argues that proof of catastrophic complications is speculative. On the other side, appellant contends that the evidence is sufficient to establish the likelihood of such consequences, and further, that regardless of whether future devastating complications are a probability or a possibility, the increased likelihood of such complications is a certainty and is compensable in and of itself.

The Court of Appeals agreed with the appellee's position. It decided to set aside the award because "Litten's experts could only say she probably had spinal fluid leakage and she possibly could suffer further complications." (Emphasis original) Court of Appeals, Slip Opinion, p. 6.

A duly qualified doctor of psychology, after appropriate testing, testified that as a direct result of the injury appellant suffers significant emotional and psychological damage. Realistically, she fears both the dangers of surgery and the likelihood of future serious illness should she not undertake surgery. Further, she so fears serious consequences from a reinjury to her nose that it frustrates her ability to conduct normal activities.

A duly qualified vocational guidance expert examined and tested the appellant as to future employability and impairment of earning capacity and concluded that she had experienced an "occupational loss" of approximately forty (40) percent.

The jury returned a verdict of $390,000. The trial court overruled the motion for new trial, which included appellee's claim that the award should be set aside as excessive, and entered judgment on the verdict. ² Approximately $224,500 of the award was for mental and physical suffering, past and future, and $157,500 was for permanent impairment of earning power. The evidence underpinning most of this substantial award of general damages is the evidence of a permanent injury in the base of the skull causing episodes of cerebral spinal leakage, the potential for catastrophic complications, and the mental suffering and impairment of normal living that attends her condition.

Thus the threshold question is the appellant's right to compensation for an injury causing an increased risk of future harm and for mental suffering and impairment of earning power resulting from the fear caused by the increased risk of future harm. The psychologist testified that "her fears are reasonably understandable and are real," and that "she will continually get worse, and there will be more anxiety and depression." The vocational guidance specialist testified as to "occupational impairment" as a direct result of her fear, anxiety and depression. The question is whether damages of this nature are compensable as appellant contends or speculative as appellee contends.

In Wilson v. Redken Laboratories, Inc., Ky., 562 S.W.2d 633 (1978), we reversed an opinion by the Court of Appeals setting aside a jury verdict of $30,000 for permanent damage to the plaintiff's hair, a condition causing no physical pain and cosmetic in nature, stating:

"The uncontradicted evidence plainly demonstrates that Louise Wilson had a traumatic experience, and suffered humiliation and distress, which are phases of mental anguish." 562 S.W.2d at 635.

In Murray v. Lawson, Ky., 441 S.W.2d 136 (1969), we affirmed the relevancy of evidence as proof of damages that the plaintiff had suffered a disabling "phobic reaction" to an injury from which she was otherwise fully recovered. Her doctor testified that he treated her for "anxiety neurosis" and a psychiatrist "testified that such phobic reaction is medically recognized and accepted as a psychiatric condition." (Emphasis added). 441 S.W.2d at 137.

In Deutsch v. Shein, Ky., 597 S.W.2d 141 (1980), we recognized plaintiff's right to damages for mental suffering following a therapeutic abortion which she underwent voluntarily out of fear of future consequences to her unborn child. The negligence of the defendant physician was in causing the plaintiff to be x-rayed without first checking her for pregnancy, which in turn caused her to seek a therapeutic abortion. We stated:

"We find no difficulty in concluding that the physical contact necessary to support the claim for mental suffering occurred when, through Dr. Shein's negligence, Mrs. Deutsch's person was bombarded by x-rays." 597 S.W.2d at 146.

Thus, we have previously recognized the right to substantial damages for mental suffering not directly related to physical pain where the injury was cosmetic (Wilson, supra ), where the injury was a phobic reaction or function of the mind (Murray, supra ), and where there was an abortion from fear of future consequences but physical injury was either debatable or nonexistent (Deutsch, supra ). In the present case the appellant's mental suffering translates into fear, anxiety and depression both substantial and incapacitating that falls well within the parameters of these cases.

Plaintiff's testimony depicted a woman caught up in the dilemma of two conflicting and terrifying courses of action. One doctor says her condition is so serious that she needs a dangerous operation. Another says the operative risks are worse than the risk of future complications. The appellant is left to twist in the wind every day of her life as to whether she ought to have the operation or whether she ought to run the risk that if she gets a common cold it may get into her spinal fluid and lead to meningitis or worse. Appellant's fear of complications is both understandable and reasonable. It is a direct result of her injury. The question is whether the jury's award for that kind of mental stress and disturbance should be considered as excessive.

There is another aspect to the question before us. Where the evidence establishes a condition causing an increased likelihood of contracting a devastating illness, or an increased risk of future harm, and such likelihood or risk is substantial but the occurrence itself is not necessarily probable, is this a compensable injury? Otherwise stated, is enhanced or created susceptibility a separate ground for an award?

In Martin v. City of New Orleans, 678 F.2d 1321 (5th Cir., 1982), plaintiff's injury was a bullet lodged in the base of his neck, a fraction of an inch from his spinal cord. The doctors testified his "prognosis was good ... (but) there would always be some risk of future complications, and that the consequences could be life-threatening.... (S)urgery was considered too dangerous." The United States Court of Appeals said:

"In light of this emotional burden and the serious physical risks he...