Kelly v. Builders Square, Inc.

• Decision Date: 24 July 2001
• Docket Number: Docket No. 113314, Calendar No. 2
• Citation: 632 N.W.2d 912,465 Mich. 29
• Parties: Norma KELLY, Plaintiff-Appellee, v. BUILDERS SQUARE, INC., Defendant-Appellant.
• Court: Michigan Supreme Court

632 N.W.2d 912

465 Mich. 29

Norma KELLY, Plaintiff-Appellee, v. BUILDERS SQUARE, INC., Defendant-Appellant.

Docket No. 113314, Calendar No. 2

Supreme Court of Michigan.

Argued December 12, 2000.

Decided July 24, 2001.

Fett & Linderman, P.C. (by James K. Fett and Marla A. Linderman), Pinckney, for the plaintiff-appellee.

Schram, Behan & Behan (by Michael R. Behan, Raymond R. Behan, and Elizabeth P. Flynn) Okemos, for the defendant-appellant.

CORRIGAN, Chief Justice.

We granted leave in this premises liability case to determine whether the trial court erroneously granted a new trial on damages following the original jury verdict. The original jury found defendant negligent, but awarded only plaintiff's medical expenses without rendering any award for pain and suffering. The trial court, in response to a specific inquiry from the first jury during deliberations, and with the agreement of both parties, had earlier instructed that the jury had no duty to award any damages, even if it found defendant negligent. In response to plaintiff's motion for new trial, the trial court thereafter ordered a partial retrial on damages only to determine an appropriate award for pain and suffering. On retrial, the jury awarded plaintiff $150,000 in noneconomic damages. The Court of Appeals affirmed in an unpublished, two-to-one decision.¹ We reverse and remand to the trial court for entry of judgment on the original verdict because the trial judge had no legal basis to set it aside.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

On May 17, 1991, plaintiff Norma Kelly and her husband patronized defendant's store in Ypsilanti. As plaintiff walked down an aisle containing a stack of large boxes of electric fans, some boxes fell. At least one box struck plaintiff's head and right shoulder. Neither plaintiff nor her husband knew how or why the boxes had fallen.

Plaintiff reported pain in her right shoulder. She was transported by ambulance to a local hospital. Examination there reflected that plaintiff had full range of motion in her right shoulder. An x-ray of plaintiff's shoulder also revealed no abnormality. Plaintiff was released from the hospital the same day. She later followed up with her family physician who prescribed physical therapy.

It was not until thirty months following the accident that plaintiff first began treating with Dr. Ralph Blasier, an orthopedic surgeon. After examining plaintiff and reviewing an MRI, Dr. Blasier diagnosed a tear in the rotator cuff muscle of plaintiff's right shoulder and muscle impingement. Dr. Blasier surgically removed part of the bone to relieve the impingement. However, he saw no evidence of a rotator cuff tear during surgery. He testified that "common sense" suggested that the incident at defendant's store had caused plaintiff's injury. Plaintiff testified that the operation alleviated her pain only "a little bit." She claimed that her injury still prevented her from various activities such as driving, swimming, shopping, and crocheting.

Dr. Paul Kelly, another orthopedic surgeon, examined plaintiff for the defense. He saw no reason to restrict any of plaintiff's activities. He opined that it would be quite unusual for a blow to the top of the shoulder to cause a rotator cuff injury or impingement. He stated: "I've never seen a mechanism injury to the rotator cuff as a direct result of a blow to the top of the shoulder."

After retiring to deliberate, the jury forwarded questions: "Can we agree on negligence and offer no money? What is the minimum monetary amount ... if there is negligence?" Plaintiff and defense counsel thereafter specifically agreed to an instruction that the jury could find negligence but not award damages and that the jury need not award any amount of damages. The court then furnished a written instruction to the jury consistent with the parties' agreement.²

The jury thereafter returned a verdict finding defendant negligent. The jury awarded plaintiff medical expenses totaling $10,227, but awarded nothing for noneconomic damages. Plaintiff then moved for a new trial on damages only. Relying on Fordon v. Bender, 363 Mich. 124, 108 N.W.2d 896 (1961), and Mosley v. Dati, 363 Mich. 690, 110 N.W.2d 637 (1961), she asserted that wherever a jury finds negligence and awards medical expenses, it must also award damages for pain and suffering. In its reply, the defense countered that a jury is not required to award damages for pain and suffering.

The trial court granted a new trial on damages only. The court did not mention the parties' stipulated instruction in its ruling:

I did follow this case. I did have the opportunity to personally observe the credibility and the demeanor of the complaining witnesses in this case. And there was extensive testimony about the damages that occurred as the result of the alleged negligence of the defendants.

* * *

Once having established that there was negligence and establishing proximate cause and accepting the validity—and we had a special verdict form as to what that $10,227 constituted, i.e., the medical expenses including surgery for the treatment of this woman, it is absolutely incongruous, it is absolutely inconsistent to then, based on that evidence, conclude there was no pain and suffering, there was no disability, there was no other "non-economic damages" that they were instructed on in the past, the present or the future.

Following retrial, a second jury awarded plaintiff $150,000 for "physical pain and suffering, mental anguish, denial of social pleasure and enjoyments and embarrassment" in the past, present, and future.

In a two-to-one decision, the Court of Appeals affirmed the trial court's decision to grant a new trial. The dissenting judge opined:

There is no legal requirement that a jury award damages simply because liability was found. Joerger v. Gordon Food Service, Inc., 224 Mich.App. 167, 173, 568 N.W.2d 365 (1997). Indeed, the plaintiff bears the burden of proving damages, and a jury is free to accept or reject such proofs. Id. at 172-173, 568 N.W.2d 365. The original jury in this case had the best opportunity to understand all the issues and evidence involved, and its refusal to award non-economic damages should have been respected. I would affirm the original jury verdict. The granting of a new trial on the issue of damages was wholly gratuitous. If in fact a new trial was warranted, the entire case should have been submitted to the jury. [Op., at p. 913.]

This Court granted leave to appeal "limited to whether the trial court erred in ordering a second trial on the issue of damages." 462 Mich. at 861, 616 N.W.2d 686 (2000).

II. STANDARD OF REVIEW

On appeal, we review a trial court's decision whether to grant a new trial for an abuse of discretion. Bean v. Directions Unlimited, Inc., 462 Mich. 24, 34, 609 N.W.2d 567 (2000); Brown v. Arnold, 303 Mich. 616, 627, 6 N.W.2d 914 (1942). We review de novo any questions of law that arise. Cardinal Mooney High School v. Michigan High Sch. Athletic Ass'n, 437 Mich. 75, 80, 467 N.W.2d 21 (1991).

III. ANALYSIS

A. The jury's prerogative to assess pain and suffering

This Court has long recognized that the authority to measure damages for pain and suffering inheres in the jury's role as trier of fact. See, e.g., Griggs v. Saginaw & F. R. Co., 196 Mich. 258, 162 N.W. 960 (1917); Michaels v. Smith, 240 Mich. 671, 216 N.W. 413 (1927).

In Brown, supra, a jury awarded only the amount of the medical expenses to a severely injured plaintiff.³ The plaintiff sought a new trial on the ground that the verdict was grossly inadequate and against the great weight of the evidence. This Court affirmed the denial of a new trial:

"The adequacy of amount of a verdict is also generally a matter for the jury. We do not substitute our judgment on this question unless a verdict has been secured by improper methods, prejudice, or sympathy. Michaels v. Smith, 240 Mich. 671 [216 N.W. 413 (1927) ]. No such showing has been made, nor is the verdict so inadequate as to shock the judicial conscience. Watrous v. Conor, 266 Mich. 397 [254 N.W. 143 (1934)]." Campbell v. Brown, 276 Mich. 449, 454 [267 N.W. 877 (1936)].

In Sebring v. Mawby, 251 Mich. 628[232 N.W. 194 (1930)] this court said: "The law furnishes no exact rule by which damages for pain and suffering can be measured. Their determination must necessarily be left to the good sense and sound judgment of the jury in their view of the evidence. It has frequently been said by courts and text-writers that the award of the jury will not be disturbed unless it is so great as to shock the judicial conscience or unless it was induced by something outside of the evidence, such as passion or prejudice. There is no claim of any such influence in this case. In view of the evidence, we cannot say that the verdict was excessive."

In Cleven v. Griffin, 298 Mich. 139 [141, 298 N.W. 482 (1941)] we also said: "No complaint is made by appellants that the jury was not properly instructed as to the element of damages. No claim is made that the verdict was obtained by improper methods, prejudice or sympathy. There is no absolute standard by which we can measure the amount of damages in personal injury cases. The amount allowed for pain and suffering must rest in the sound judgment of the triers of the facts." Watrous v. Conor, 266 Mich. 397 [254 N.W. 143 (1934)]; Weil v. Longyear, 263 Mich. 22 [248 N.W. 536 (1933)]. Courts are reluctant to disturb verdicts of juries for personal injuries on the ground that the amount is excessive. Cawood v. Earl Paige & Co., 239 Mich. 485 [214 N.W. 402 (1927)]. We do not usually substitute our judgment for that of the jury unless the verdict shocks the conscience or has been secured by improper means, prejudice or sympathy. Watrous v. Conor, supra, Michaels v. Smith, 240 Mich. 671 [216 N.W. 413 (1934)]. The verdict was within the range of the testimony and not excessive.

See, also, Nezworski v. Mazanec, 301 Mich. 43

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