Dixon v. Cobb, No. M2006-00850-COA-R3-CV (Tenn. App. 7/12/2007)

Decision Date12 July 2007
Docket NumberNo. M2006-00850-COA-R3-CV.,M2006-00850-COA-R3-CV.
PartiesCLIFFORD DIXON, ET AL. v. KIRA COBB, ET AL.
CourtTennessee Court of Appeals

Appeal from the Circuit Court for Williamson County; No. 02190; Russ Heldman, Judge.

Judgment of the Circuit Court Affirmed.

Alan C. Housholder, Nashville, Tennessee, for the appellants, Clifford Dixon and Faye Dixon.

John Thomas Feeney and Daniel A. Galiano, Nashville, Tennessee, for the appellees, Kira Cobb (Bettcher) and John Doe.

William B. Cain, J., delivered the opinion of the court, in which William C. Koch, Jr., P.J., M.S., and Patricia J. Cottrell, J., joined.

OPINION

WILLIAM B. CAIN, JUDGE.

Husband and Wife filed a personal injury action against Driver for injuries allegedly sustained when Driver side-swiped Husband's vehicle while traveling on Interstate 40. At trial, Driver conceded liability but alleged that her conduct was not the legal cause of Husband's injuries. After hearing all the evidence, the jury awarded Plaintiffs zero damages. Plaintiffs appeal asserting various errors committed during the trial. Finding no material error below, we affirm the judgment of the trial court in all respects.

On April 6, 2001, Mr. Clifford Dixon was traveling on Interstate 40 when Ms. Kira Cobb's vehicle side-swiped his pickup truck, causing him to collide into the center concrete wall. On April 6, 2002, Mr. Dixon and his wife filed an action against Ms. Cobb and her father for injuries allegedly resulting from the accident. On June 7, 2002, the Cobbs filed an answer asserting comparative fault, alleging that an unknown third party in a red vehicle forced Ms. Cobb into Mr. Dixon's vehicle. However, at the trial on January 19, 2006, Ms. Cobb admitted her fault in causing the accident but alleged that her conduct was not the legal cause of Mr. Dixon's injuries. At the conclusion of the trial, the jury awarded the Dixons zero damages on all claims including pain and suffering, medical bills, and loss of earning capacity.

The Dixons appeal alleging various errors committed during the trial including (1) charging the jury with negligence; (2) failing to charge the jury with negligence per se and turning a vehicle; (3) excluding mental and emotional pain and suffering from the jury charge; and (3) excluding from evidence portions of the deposition of Appellants' chiropractor. Appellants also allege that (1) there was no material evidence to support an award of zero damages; (2) the jury failed to follow the jury instructions on damages; and (3) they were prejudiced by Ms. Cobb's testimony that she was pregnant.

I. JURY INSTRUCTIONS

The determination of whether jury instructions are proper is a question of law. Solomon v. First Am. Nat'l Bank of Nashville, 774 S.W.2d 935, 940 (Tenn.Ct.App.1989). A trial court's conclusions of law are reviewed under a purely de novo standard, with no presumption of correctness provided to the conclusions below. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn.2001).

"The necessity of jury instructions based on a clear and sound exposition of the law in order for a jury verdict predicated upon those instructions to stand is a long standing principle of Tennessee law." Bara v. Clarksville Mem'l Health Sys., Inc., 104 S.W.3d 1, 3 (Tenn.Ct.App.2002). However, jury instructions need not be perfect in every detail. Ladd by Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 94 (Tenn.Ct.App.1996). Instructions must be viewed as a whole with the challenged portion of the instructions being considered in light of its context. Ladd by Ladd, 939 S.W.2d at 94. And a single erroneous statement will not necessarily undermine proper instructions that, on the whole, fairly define the issues and do not mislead the jury. Ladd by Ladd, 939 S.W.2d at 94. Thus, a jury verdict will be reversed only if it can be shown that an instruction contains an inaccurate statement of the law or is confusing and when considering the charge of the court as a whole, the instruction more likely than not affected the outcome of the trial. Bara, 104 S.W.3d at 3.

The Dixons first argue that the trial court erred in charging the jury with negligence because Ms. Cobb admitted fault. The challenged jury instruction provided:

A Plaintiff is entitled to recover compensation for an injury that was legally caused by the negligent conduct of a defendant. In this case, the Plaintiff has the burden of proving:

1. That the defendant was negligent; and

2. That the negligence was a legal cause of injury to the Plaintiff.

Appellants contend that instructing the jury that Plaintiffs carried the burden of proving that Ms. Cobb was negligent misled and confused the jury. However, the record reveals that the court also specifically instructed the jury that Ms. Cobb admitted liability. Said the court:

The Defendant has admitted fault. As a result, the Defendant is responsible for any damages legally caused by that fault. A legal cause of loss or harm is one that in the natural and continuous sequence of events produces the loss or harm and without which would not have occurred.

It is well settled that the challenged instruction must be considered in the context of the complete instructions provided to the jury. Ladd by Ladd, 939 S.W.2d at 94. And an erroneous instruction will not be considered reversible error if the trial court explains or corrects it in other portions of the charge. Ladd by Ladd, 939 S.W.2d at 94. Although the negligence instruction was not necessary in this case, the court clarified any confusion which may have resulted therefrom by explaining to the jury that Ms. Cobb admitted fault and thus, only the damages caused by that fault were at issue. We therefore find no merit to Appellants' first assignment of error.

In a related argument, Appellants contend that because the trial court erroneously charged the jury with negligence, the court should have also charged the jury with negligence per se1 and turning a vehicle.2 It is well settled that a trial court should give a requested instruction "(1) if it is supported by the evidence, (2) if it embodies the party's theory of the case, (3) if it is a correct statement of the law, and (4) if its substance has not already been included in other portions of the charge." Ladd by Ladd, 939 S.W.2d at 102-3. In this case however, Appellants admit that they did not attempt to prove negligence since Ms. Cobb admitted liability. Because Appellants' requested instructions relate solely to the establishment of negligence, the instructions are not supported by the evidence nor do they embody Appellants' theory of the case. We therefore find no error in the court's refusal to charge the jury with such instructions.

The final instructional error alleged by Appellants concerns the failure of the trial court to specifically include mental and emotional pain and suffering as a recoverable element of Appellants' damages. The jury instruction concerning pain and suffering provided:

Plaintiff shall be awarded the following elements of damage experienced in the past:

Physical pain and suffering

Loss of earning capacity for the enjoyment of life

You shall also award compensation for the present case value of:

Physical pain and suffering

Loss of capacity for the enjoyment of life

reasonably certain to be experienced by a party in the future

Pain and suffering encompasses the physical discomfort cause[d] by an injury. Damages for loss of enjoyment of life compensate the injured person for the limitations placed on the abilities to enjoy the pleasures of life. Impairment of physical function prevents a person from living life in comfort by adding inconvenience or loss of physical ability.

Appellants contend that omitting mental and emotional pain and suffering as a specific element of Appellants' damages resulted in the jury's failure to compensate Mr. Dixon for his decreased ability to work, loss of sexual function, decreased activity level, and inability to pick up his wife's grandchild. Although conceptually physical pain and suffering, mental and emotional pain and suffering, and loss of enjoyment of life can all be encompassed within the general definition of pain and suffering, each of these types of damages are separate and distinct losses to the victim. Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 715 (Tenn.Ct.App.1999). "Damages for loss of enjoyment of life compensate the injured person for the limitations placed on his or her ability to enjoy the pleasures and amenities of life." Overstreet, 4 S.W.3d at 715-16. Courts have found that damages for the loss of enjoyment of life may include the inability to continue a particular career, McAlister v. Carl, 197 A.2d 140, 145 (Md.1964), to pursue recreational or family activities, Sweeney v. Car/Puter Int'l Corp., 521 F.Supp. 276, 288 (D.S.C.1981), and to engage in normal sexual function. Varnell v. La. Tech Univ., 709 So.2d 890, 896 (La.Ct.App.1998). Because we believe that the court's instruction on loss of enjoyment of life adequately addressed Appellants' proof, we find no error in the trial court's failure to expressly include mental and emotional suffering as an element of Appellants' compensable damages.

II. DEPOSITION OF APPELLANTS' CHIROPRACTOR

Appellants next argue that the trial court erred in excluding from evidence a portion of the deposition testimony of Appellants' expert chiropractor, Dr. McIntosh. The exclusion of expert medical testimony rests within the sound discretion of the trial court and will not be disturbed unless it is based on an erroneous view of the law or it constitutes an abuse of discretion. Benson v. N. Gopher Enter., Inc., 455 N.W.2d 444, 445-46 (Minn.1990). The challenged portion of the deposition provided:

Q. Can you say with — in a reasonable degree of medical certainty the relationship of the — well, do you have an opinion based on a reasonable degree of medical certainty as to what caused the neck and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT