Godfrey v. Godfrey, 22160
| Decision Date | 24 March 1995 |
| Docket Number | No. 22160,22160 |
| Citation | 193 W.Va. 407,456 S.E.2d 488 |
| Court | West Virginia Supreme Court |
| Parties | Amanda Joe GODFREY, an infant, by Martha Widmayer, her next friend, Plaintiff Below, Appellant, v. Glenn Earl GODFREY and Kim Fazemeyer, Defendants Below, Appellees. |
Syllabus by the Court
1. "In an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant." Syl. Pt. 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983).
2. "We will not find a jury verdict to be inadequate unless it is a sum so low that under the facts of the case reasonable men cannot differ about its inadequacy." Syl. Pt. 2, Fullmer v. Swift Energy Co., Inc., 185 W.Va. 45, 404 S.E.2d 534 (1991).
3. " Syl. Pt. 3, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983).
4. "In a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial may be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict." Syl. Pt. 3, Biddle v. Haddix, 154 W.Va. 748, 179 S.E.2d 215 (1971).
David R. Janes, Tharp, Liotta & Janes, Fairmont, for appellant.
Dwight R. Hall, Wallace, Harris & Sims, Elkins, for appellees.
This case arises out of certain serious personal injuries sustained by Amanda Joe Godfrey. Following a two day trial, the jury found the Appellees, Glenn Godfrey and Kim Fazemeyer, 1 negligent and awarded Amanda $30,000. Amanda's mother, the Appellant Martha Widmayer, appeals from the denial of her motion for a new trial on September 13, 1993, by the Circuit Court of Upshur County. We agree with the Appellant that the verdict was manifestly inadequate. Accordingly, we reverse the circuit court's order and remand this case for a new trial on damages. I.
On April 14, 1990, Mr. Godfrey, Amanda's father, entrusted his lawnmower to Ms. Fazemeyer, Amanda's step sister-in-law. Amanda was seven years old at the time. While Ms. Fazemeyer was operating the mower, Amanda was standing on its trailer hitch with her hands resting on Ms. Fazemeyer's shoulders. Amanda stepped off of the mower when she thought that the mowing was finished. The mower, however, began moving backward, and the hitch hit Amanda in the left leg and knocked her down. While the mower was still running, and the blades apparently engaged, Amanda's left foot became caught in the blades and a portion of her foot was degloved. 2 The mower apparently stayed on Amanda's foot for a period of time until her brother lifted it off. Amanda was immediately rushed to St. Joseph's Hospital in Buckhannon. Given the severity of her injuries though, she was moved to the Level One Trauma Center at Ruby Memorial Hospital in Morgantown.
Not surprisingly, Dr. Kurth, Amanda's treating physician at Ruby Memorial, testified that Amanda was in pain upon her arrival at the hospital. He stated that when he removed the dressing around her injury he observed that her foot was "mangled" and "chopped up." He performed surgery on Amanda's foot shortly thereafter and observed in an operation summary that "the wound was grossly contaminated with ground-in dirt and grass clippings." During surgery, he cut away the dead tissue and amputated what was left of Amanda's large toe. Additionally, the record indicates that a flap of skin was removed from the dorsal surface of Amanda's foot, defatted and prepared as a skin graft source. Dr. Kurth also noted that certain bones in the foot were broken and that he set these and "drilled a wire across the fractures to hold them in place."
On April 17, 1990, Amanda underwent further surgery. During the procedure, Dr. Kurth noted the absence of any blood flow to Amanda's second and third toes. Consequently, they too were amputated. Further skin grafts were performed as well, using the defatted flap of skin as well as derma from Amanda's thigh. The graft healed over, and Amanda was sent home on crutches. She spent a total of six days in the hospital.
Amanda returned to the hospital periodically over the next few months for further examinations. Some of these visits are notable. For instance, Dr. Kurth testified that on approximately May 9, 1990, he observed that only seventy-five percent of the skin graft had "taken." Twenty-five percent of the skin had died. On May 22, 1990, Amanda returned to the hospital for further surgery to remove pins from her foot. At that time, Dr. Kurth again noted the presence of a portion of black gangrenous dead tissue around the foot.
Amanda returned to the hospital on April 8, 1991. Dr. Kurth noted that she had some ulceration on the top of her foot which was treated by the use of a chemically-aided burning process. He testified as follows concerning the likely perpetual nature of the ulceration problem:
Q. Do you anticipate that there will be any continued or persistent problems with that type of thing, the irritation or the ulceration that you saw in April of 1991?
A. Yes. I think she can have intermittent problems. I don't think it will be a daily problem. A different pair of shoes, something she can rub on. You have to understand a skin graft is not normal sensate feeling skin and it's not normal thickness. It does do a good job. It allows us to keep a foot or an arm or a leg but it's in no way normal. So we can have areas that get irritated from rubbing and so forth. But it should--that should not be a daily occurrence.
As one might guess, Amanda testified that she was in pain during the incident and that she experienced a continuing level of pain even up to the time of her testimony. She stated that her foot "splits open sometimes" and that her foot "hurts bad" when the weather is cold or when she hits it on something. She further stated that there are times when she can feel her three missing toes, even though they are now gone.
Amanda also conveyed how the accident has changed her life. For instance, she stated that she sometimes falls "up and down" stairs. Further, unlike her friends, she is required to wear tennis shoes when she dresses up rather than dress shoes. She said that this upsets her and makes her wonder about what will happen in the future regarding proms, her wedding, and employment. She also testified that she has had to endure a persistent course of meanspirited teasing by some of her classmates because of her impairment, one such incident even occurring on her birthday.
As a result of the accident, the Appellant filed a six-count complaint on April 30, 1991. At trial, which commenced on June 22, 1993, the parties stipulated to Amanda's medical expenses. Those expenses totalled $17,874.39. Following a two day trial, the jury returned its verdict. The jury found Mr. Godfrey 40% negligent and Ms. Fazemeyer 60% negligent and awarded Amanda $30,000 in damages. The Appellant moved for a new trial on July 1, 1993, alleging that the amount of the verdict was inadequate. The circuit court denied the motion on September 13, 1993, via a one-page order.
We agree with the Appellant that the verdict in this case was inadequate as a matter of law. Accordingly, we now reverse.
II.
We have stated that "[i]n an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant." Syl. Pt. 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983). We have also stated that "[w]e will not find a jury verdict to be inadequate unless it is a sum so low that under the facts of the case reasonable men cannot differ about its inadequacy." Syl. Pt. 2, Fullmer v. Swift Energy Co., Inc., 185 W.Va. 45, 404 S.E.2d 534 (1991). Nevertheless, it is equally well-settled that
King v. Bittinger, 160 W.Va. 129[, 136], 231 S.E.2d 239, 243 (1976).
Syl. Pt. 3, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983) (emphasis added).
The parties' briefs are almost exclusively devoted to the question of whether the $30,000 award even covers Amanda's future medical expenses. As stated above, the parties stipulated to the medical expenses as of the date of trial in the amount of $17,874.39. There was also testimony, however, concerning the future costs and necessity of orthotic fillers for Amanda's shoes, which were not included in the stipulated amount.
The orthotics are basically a shoe insert fashioned from a plaster impression of the foot that prevents or accommodates defects in the foot. Dr. Leonard Simmons, Amanda's podiatrist, testified that she would require the orthotics for the rest of her life. He stated that the orthotics would need to be replaced yearly during the growing years and approximately every two years thereafter. The cost of each orthotic is approximately $500. Given the parties' apparent stipulation that Amanda's lifespan would extend for an additional 68 years, the lifetime cost of the orthotics was pegged at approximately $17,000. The Appellant thus asserts that Amanda's present and future medical expenses exceeded $34,000 and, therefore, the $30,000 award was clearly inadequate to cover future medical expenses, much less pain and...
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