Hebron v. Whitelock

Decision Date30 January 2006
Docket NumberNo. 2047, September Term, 2004.,2047, September Term, 2004.
Citation890 A.2d 899,166 Md. App. 619
PartiesHEBRON VOLUNTEER FIRE DEPARTMENT, INC. v. Robert N. WHITELOCK.
CourtCourt of Special Appeals of Maryland

George M. Church (Laura A. Cellucci, on brief), Baltimore, S. Mark Tilghman, Peter J. Golba, on brief, Salisbury, for appellant.

Robert C. Verderaime, Raymond E. Callegary, on brief, Baltimore, for appellee.

Panel MURPHY, C.J., KENNEY and SHARER, JJ.

KENNEY, J.

Appellant/cross-appellee, Hebron Volunteer Fire Department, Inc. ("Hebron VFD"), appeals the decision of the Circuit Court for Wicomico County setting the amount of remittitur at $225,000, thereby reducing an award of $525,000 for non-economic damages to $300,000. Appellee/cross-appellant, Robert N. Whitelock, cross-appeals the circuit court's decision to grant Hebron VFD's motion for a new trial and/or remittitur. Hebron VFD presents one question, which we have rewritten as follows:

Did the circuit court err in the criteria it used to determine the amount of the remittitur?

Whitelock poses two questions, which we have rewritten as follows:

1. Did the circuit court abuse its discretion in granting the remittitur?

2. Did Hebron VFD preserve for appeal the issue of the proper criteria for determining remittitur?

For the following reasons, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL HISTORY

On July 12, 2001, fifty-nine year old Robert Whitelock, along with several family members, attended a carnival that was sponsored by Hebron VFD. Joined by his three year old grandson, Whitelock rode the ferris wheel. The ride was owned by Hebron VFD and, at the time, was being operated by James Shockley, then the president of Hebron VFD. At the conclusion of the ride, Shockley intended to turn the ferris wheel slowly, stopping each seat at a platform where the riders would exit their seats onto the platform. Whitelock's was the first seat brought down to the platform. Carrying his grandson, he stepped out of the ride, but, as he did so, the platform dropped. In Whitelock's words, "[w]e started to get up and when I was about three quarters of the way up, there was nothing else left [to step onto] but air."

Whitelock fell forward, landing on his left arm. His face struck either the platform or his grandson. The ferris wheel seat swung back and struck his legs against the platform.

He was taken by ambulance to a hospital, treated for his injuries, and discharged the same evening. Several days later he began physical therapy for the injuries to his right leg and left wrist and hand. Within several months, the injuries to his face and leg had healed. He sought a second opinion on the injuries to his wrist and hand because he was still experiencing pain and difficulty moving it. In January and February 2002, Whitelock underwent two operations on his left wrist. In the second operation, three bones were removed from his wrist.

Whitelock testified that he required a great deal of care from his wife and sister-in-law while recovering from the surgery. He stated that he needed assistance in getting dressed and that he had trouble sleeping. After his initial surgery, he underwent physical therapy for his wrist and hand for five months. Still, he has "very little grip, very little strength" in his left hand, and has difficulty making a fist. He also stated that he suffers from pain in his left wrist every day, the level of which he estimates at "between six and seven" on a scale of one to ten. He testified further that there are numerous activities that he is unable to do because of the weakness of his left hand, including bathing, tying his shoes, playing golf, and hunting.

The court's instructions to the jury on damages were based substantially on the Maryland Civil Pattern Jury Instructions 10:1-2.

In the event that you find for the Plaintiff on the issue of liability, then you must go on to consider the question of damages.

It will be your duty to determine what, if any, award will fairly compensate the Plaintiff for his losses. The burden is on the Plaintiff to prove by a preponderance of the evidence each item of damage claimed to be caused by the Defendant, and in considering the items of damage, you must keep in mind that your award must fairly and adequately compensate the Plaintiff, but an award should not be based on guesswork.

In this action for personal injury, you shall consider the following; first, the injuries sustained — the personal injuries sustained and their extent and duration; the effects such injuries have on the overall physical and mental health and well-being of the Plaintiff; the physical pain and mental anguish suffered in the past and which with reasonable probability may be expected to be experienced in the future, the medical and other expenses reasonably and necessarily incurred in the past.

In awarding damages in this case, you must itemize your verdict or award to show the amount intended for medical expenses incurred in the past and non-economic damages sustained in the past and reasonably probable to be sustained in the future. All damages which you may find for pain, suffering, inconvenience, physical impairment, and other nonpecuniary injury are non-economic damages.

Now, for purposes of calculating damages, the evidence is that the Plaintiff is presently 62 years old, and the parties have stipulated that according to the life expectancy tables, his life expectancy is 17.8 years.

Now, this figure is to assist you in determining the probable life expectancy of the Plaintiff as it bears on future losses and damages. It is not conclusive proof of the life expectancy, and you are not bound by it. It is only an estimate based on average experience.

In closing argument, Whitelock's counsel told the jury that his past medical expenses totaled $14,929.64. With respect to non-economic damages, counsel argued:

I am going to give you a range. I want you to keep in mind that this is only a suggestion which I suggest the evidence suggests, that you can consider it. You may accept it. You may reject it. You may totally ignore it. You may think I am too high. You may think I am too low, but I want to give you the rationale for what I have done.

* * *

For [the] three years [from the time of the injury to the time of trial], I am going to suggest a pay figure of 27,375 and a high of 82,125. Now, how do I get those figures? Did I just pick them out of the air? And the answer is no because if you use this figure for those three years, [$27,375,] that comes to $25 a day. That's all that is for what he has gone through in the past three years. If you use this figure, [$82,125,] it is $75 a day.

... I am suggesting that that is the range for those three years, [b]etween 27,375 and 82,125 or more or less.

* * *

Now, they are talking about 17 years, and the only thing that is different in the next 17 years is that he no longer is going to have to undergo the injections. He no longer is going to have the physical therapy. There is no evidence of that, and I agree with that.

He said he is not going to have the fusion because it will just give him a frozen wrist, but he may. So for the next 17 years, all the things that he ticked off for you as to what he used to do, what he liked to do, have been taken away from him. And somehow, someway the law says to you, you got to put a monetary damage on it. You have got to put a money figure on it.

The law doesn't allow or doesn't say that I can go or the Judge can go to a book and pull it off and say, okay, this is worth X number of dollars. This is X number of dollars. This is Y number of dollars. It is your collective judgments as to what you believe fair, not for what the Clerk might take, not for what my son might take, but how it has affected Mr. Whitelock.

If the yard stick is $10,000 a year which is a little bit more than $25 a day, a little bit more than $25, not much, that for 17 years, it is $170,000.

If it's, say, $15,000, if that's a fair figure, when you multiply that out, it's [$]255,000. And again, just to give you a range as to what you may think is reasonable. If it's [$]20,000, that comes to [$]340,000.

... So despite what this figure is, whatever yard stick you want to use ... whatever you in your collective judgment think is fair, then fairness dictates that you do what? That you got to multiple it by 17 despite what that figure is.

In Hebron VFD's closing argument, counsel stated with regard to damages:

Now, if you decide that, hey, you are negligent, then you have to go on to the damage aspect. Now, I just want to leave you with a few questions and address a few issues here.

First of all, the life expectancy. That is not something set in stone as we know. People have died younger. We have people who have died in their hundreds, nineties. That is just a guide for you. It doesn't mean you have to take a number and multiply it by that number. That is for you to deliberate and decide what is fair and reasonable.

* * *

... You have to ask yourself, what is this case worth? I am not going to sit here as I was challenged to do and put numbers on you because I don't tell people what to think. When people come in my office, I never tell them what to think because you are all adults as I said.

You have heard the evidence. Don't let anyone tell you what to think because you, as a community, you represent the community here, have to tell us what you think.

... You are going to look at all the evidence, discuss it, and come to a fair and reasonable verdict, and that is all we ask for.

The jury found Hebron VFD negligent in causing Whitelock's injuries. It awarded Whitelock $15,000 for past medical expenses, and $525,000 in non-economic damages.

Hebron VFD moved for a new trial and/or remittitur. On October 12, 2004, the court held a hearing on that motion. After hearing argument, the court granted Hebron VFD's motion for a new trial as to damages unless Whitelock...

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