Harvey v. Williams

• Decision Date: 16 March 2020
• Docket Number: A19A2217
• Citation: 354 Ga.App. 766,841 S.E.2d 386
• Court: Georgia Court of Appeals
• Parties: HARVEY et al. v. WILLIAMS.

354 Ga.App. 766

841 S.E.2d 386

HARVEY et al.

v.WILLIAMS.

A19A2217

Court of Appeals of Georgia.

March 16, 2020

Certiorari Denied October 19, 2020

Certiorari Granted October 19, 2020

Laurie Webb Daniel, Roger Edward Harris, Atlanta, Bruce Wheat Kirbo Jr., Bainbridge, Douglas Lee Clayton, Matthew D. Friedlander, Atlanta, for Appellant.

William A. Erwin, Camilla, W. Earl McCall, Tifton, Alfred J. Powell Jr., Camilla, Henry E. Williams, Albany, Gregory Terrell Williams, for Appellee.

Rickman, Judge.

Oxford Construction Company and Rubin Harvey, Jr. appeal from the final judgment issued after a jury awarded Johnny L. Williams¹ $18 million to compensate him for injuries sustained in a collision between a dump truck driven by Harvey and a tractor driven by Williams and from the trial court's order denying their motion for new trial. Oxford and Harvey contend that Williams's closing argument violated motions in limine granted by the trial court, resulting in prejudice, and that the trial court erred by not intervening to prevent the prejudicial arguments. Oxford and Harvey also challenge the award of prejudgment interest included in the final judgment, arguing that the award was not authorized under OCGA § 51-12-14. For reasons that follow, we reverse the damages award and decline to address the prejudgment interest issue.

On April 11, 2013, Williams was driving a tractor for a local pecan farmer when a loaded dump truck driven by Harvey, an employee of Oxford, hit the back of his tractor. Williams was thrown from the tractor and ended up in a ditch on the side of the highway. As a result of the collision, Williams sustained severe injuries, including but not limited to a traumatic brain injury, multiple fractures (including a cracked skull), and the onset of seizures. In addition, while in the hospital for treatment, he developed sepsis. After spending approximately six weeks in the hospital, Williams was transferred to a rehabilitation center for patients with traumatic brain and other injuries where he was evaluated by several specialists and participated in different types of therapy. Williams was discharged to his home after approximately five weeks with the instruction that he would require 24-hour supervision.

At the time of the collision, Williams was 67 years old and was physically active. He enjoyed doing yard work, going to church and singing in the choir, and being around his family and friends. As a result of the traumatic brain injury he sustained in the accident, Williams requires 24-hour care for his day-to-day activities, requires medication to prevent seizures, has dementia, has trouble walking, has trouble emotionally because he gets agitated and confused, and has sexual dysfunction. When he walks, his gait is very slow and unsteady and he has to wear a gait belt because he is at high risk for falling. At the time of trial, Williams was living at home and receiving care from certified nursing assistants 24 hours a day.

A life care plan was prepared for Williams and it included two options – the first option was for him to stay in the home environment and the second option was for him to move to a residential memory care unit. Because the home care option was only available so long as a family member lived with Williams in the home, the life care planner added the memory care unit option in the event a family member was unable to live with him for a temporary or extended period of time. An economics expert calculated the present value of the life care plan, assuming that Williams would live 11.57 years, and valued the home care option at $2,146,805 and the memory care unit option at $773,212. The economist also calculated lost earnings and modest fringe benefits to age 72½ in the amount of $85,524. Williams's medical expenses totaled $1,150,054.15. Thus, with the home care option, the total special damages would be $3,382,383.15, and with the memory care unit option, the total would be $2,008,790.15.

During opening argument, Williams's counsel informed the jury that they would be seeking approximately $3.4 million in special damages and $20 million for pain and suffering. Counsel for Oxford and Harvey informed the jury during opening argument that they were admitting that Harvey was negligent and that he had caused the accident, and that the only issue to be resolved was the amount of compensation Williams should receive. Defense counsel suggested that fair and reasonable compensation would between $4.1 million and $5.1 million, which would include payment of the claimed medical expenses and lost wages and future care in the amount of $1.5 million, representing the approximate average between the cost of in home care and the cost of the memory care unit, as well as pain and suffering of $1.5 million to $2.5 million. During closing argument, counsel for both parties repeated their suggestions as to the appropriate award for Williams. The jury returned a verdict for $18 million.² Following the verdict, the trial court credited Oxford and Harvey with an insurance company payment in the amount of $5,432.103.84 and entered judgment in favor of Williams in the amount of $12,567,896.16. The trial court also awarded prejudgment interest in the amount of $1,865,753.42 because Oxford and Harvey failed to accept Williams's pretrial demand of $6 million, which was made in accordance with OCGA § 51-12-14 (a).

Oxford and Harvey filed a motion for new trial in which they argued, inter alia, that Williams's counsel violated several of the court's motion in limine rulings during closing argument, including the ruling prohibiting arguments offered predominantly to overly inflame the emotions of the jury and the ruling prohibiting a violation of the "golden rule." Oxford and Harvey also argued that Williams was not entitled to prejudgment interest pursuant to OCGA § 51-12-14. Following a hearing, the trial court denied the motion for new trial. In its order, the trial court specifically addressed the potential "golden rule" violation and the prejudgment interest issue but only mentioned in general terms the claimed violation of the ruling prohibiting arguments offered predominantly to overly inflame the emotions of the jury.

1. Oxford and Harvey contend that Williams violated the trial court's ruling in limine prohibiting arguments offered "predominantly to overly inflame the emotions of the jury" and the trial court's ruling on their motion in limine precluding a "golden rule" argument regarding damages, that these violations were prejudicial, and that the trial court erred in failing to intercede and prevent the prejudicial arguments.

(a) Oxford and Harvey filed a motion in limine seeking to exclude statements, contentions, arguments, inferences, or proffer of any evidence to elicit sympathy for [Williams] or any individual. In its Order on Defendant's Motion in Limine, the trial court reserved ruling on this motion, finding it overly broad and vague and instructing that if, during the trial, "the Defendants believe that potential testimony or evidence or offered testimony or evidence is inadmissible, overly prejudicial, and/or irrelevant, the Defendants shall notify this Court, outside the presence of any potential juror, juror, or seated jury." The court then stated, "[n]evertheless, any statements, arguments, or evidence offered predominantly to overly inflame the emotions of the jury or to illicit excessive or undue sympathy, hostility, or prejudice for or against either party is prohibited." Oxford and Harvey contend that counsel for Williams violated this ruling in closing argument.

Williams's counsel argued, "whatever you award Mr. Williams [he] is going to be stuck with for the rest of his life. And I hope that your verdict is not a dou ble-down on sentencing him to a nursing home because if you sentence him to a nursing home, you're signing his death warrant." Counsel continued with, "[l]et's just face it, we hear all the time about what goes on in a nursing home. I do not in good conscience believe that you are desiring to do that to Mr. Williams. None of this is his fault."

This argument, which essentially told the jury that awarding damages based on the cost of nursing home care instead of the more expensive in home care would be sentencing Williams to death, clearly violated the trial court's ruling precluding argument offered predominantly to overly inflame the emotions of the jury.³ Although Williams argues that the trial court's ruling required Oxford and Harvey to notify the court during the trial of any alleged violations, the court's order limits that requirement to "potential testimony or evidence or offered testimony or evidence" and specifically prohibits argument "offered predominantly to overly inflame the emotions of the jury." And although there was no contemporaneous objection to this argument, the trial court's motion in limine ruling precluded this type of inflammatory argument, and that ruling was sufficient to preserve this issue for appellate review. See Central of Georgia R. Co. v. Swindle , 260 Ga. 685, 687, 398 S.E.2d 365 (1990) (despite lack of contemporaneous objection, closing argument held to be improper when motion in limine had been granted on the issue raised on appeal).

In addition to being in violation of the court's ruling, this highly inflammatory argument was not supported by the evidence. See F.D. Wilson Trucking Co. v. Ferneyhough , 269 Ga. App. 736, 737 (1), 605 S.E.2d 132 (2004) ("Flights of oratory and false logic do not call for mistrials or rebuke. It is the introduction of facts not in evidence that requires the application of such remedies.") (citation and punctuation omitted); Bell v. State , 263 Ga. 776, 777, 439 S.E.2d 480 (1994) (there are limits to the wide range of discussion permitted in closing argument, "the first and foremost of which is the longstanding prohibition against the injection into the argument of extrinsic and prejudicial matters which have no...