Lorrain v. Ryan, 92-238

• Decision Date: 16 April 1993
• Docket Number: No. 92-238,92-238
• Citation: 628 A.2d 543,160 Vt. 202
• Court: Vermont Supreme Court
• Parties: Derek & Patricia LORRAIN v. Kevin & Elaine RYAN.

Page 543

628 A.2d 543

160 Vt. 202

Derek & Patricia LORRAIN v. Kevin & Elaine RYAN.

No. 92-238.

Supreme Court of Vermont.

April 16, 1993.

E. William Leckerling and Pamela J. Fitzgerald of Lisman & Lisman, Burlington, for plaintiffs-appellants.

Richard H. Wadhams, Jr., of Pierson, Wadhams, Quinn & Yates, Burlington, for defendants-appellees.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Plaintiffs Derek and Patricia Lorrain appeal the rulings of the Chittenden Superior Court on two post-judgment motions. The trial court (1) denied plaintiffs' motion for a new trial on the issue of damages, in which plaintiffs argued that defendants failed to produce sufficient evidence for the jury to apportion damages and that the award of damages was grossly inadequate; and (2) granted defendants' motion for a judgment notwithstanding the verdict, in which defendants asserted that a damage award for loss of consortium was barred by the exclusivity provision of the workers' compensation statute. We affirm the denial of plaintiffs' motion for a new trial and reverse the grant of defendants' motion for a judgment notwithstanding the verdict.

I.

Plaintiff Derek Lorrain was an employee of Derek Lorrain Carpet Installers, Inc., a business he owned and operated. On July 16, 1985, while working at the home of defendants Kevin and Elaine Ryan, he carried a roll of vinyl down a flight of stairs leading off defendants' raised deck. When one of the steps snapped, he fell and suffered an injury to his cervical spine. Plaintiff underwent extensive medical treatment, culminating in March 1991 in diskectomy and spinal fusion surgery. Plaintiffs filed suit, alleging that defendants' negligence in maintaining their property was the cause of the accident and all of plaintiffs' injuries. The suit included a claim for loss of consortium by Patricia Lorrain.

The case was tried before a jury, and the medical testimony offered was extensive and conflicting. Plaintiff's general physician and his orthopedic surgeon both testified that plaintiff's disabilities were due to the 1985 accident, not a preexisting condition. The general physician treated plaintiff for neck pains on the day of the accident and numerous times thereafter. Although evidence was presented that plaintiff's condition was "much improved" and had "stabilized" in the months following the accident, plaintiff periodically returned for neck treatment. The physician referred plaintiff to the orthopedic surgeon in October of 1990, attributing the complaints of neck pain to "a continuation of the July [1985] accident that was never resolved." The surgeon testified that his treatment of plaintiff, including the 1991 surgery, stemmed from the 1985 accident.

The general physician had also treated plaintiff several times for neck and arm pain in the six years preceding the accident, and twice referred plaintiff to specialists. The first was to a neurologist, who confirmed the absence of nerve damage; the second was to a specialist in the cervical spine. X-rays taken in spring of 1984 by an assistant to the cervical spine specialist revealed the presence of degenerative arthritis in plaintiff's neck, although several weeks later the assistant noted that plaintiff's range of motion was normal and the muscular strain was resolved. The general physician noted that he had not seen plaintiff for any neck-related complaints for more than a year prior to the accident, and both he and the orthopedic surgeon testified that the degenerative condition shown in the x-rays did not necessarily indicate that plaintiff's neck problems would continue.

The general physician testified that the medical bills plaintiff presented, totaling over $20,000, all resulted from the accident. Plaintiffs also presented an economist who testified that plaintiff will lose future earnings, the present value of which was $300,000. Defendants disputed this figure.

Defendants introduced the testimony of another orthopedic surgeon who examined plaintiff prior to and after the 1991 surgery, and reviewed plaintiff's medical records dating back to 1980. Defendants' expert testified that plaintiff's disabilities were at least partially attributable to a preexisting degenerative arthritis of the cervical spine. He stated that plaintiff's medical records established a natural progression of the degenerative condition, which only stops at death. He also noted that plaintiff had suffered at least three minor injuries within approximately one year after the 1985 accident. Defendants' expert testified that the 1985 accident caused "an increase in symptoms" that subsequently subsided, a diagnosis supported by an August 1986 note from plaintiff's physical therapist stating that the neck injury had stabilized. In the opinion of defendants' expert, most of the treatments, including the 1991 operation, were necessitated by the continued progression of the degenerative arthritis, not the subject accident.

On February 19, 1992, the jury found that defendants' negligence proximately caused the 1985 accident and awarded damages in the amount of $8,610.33, including $2,298 for medical bills and $2,000 to Patricia Lorrain for loss of consortium. Defendants moved for a judgment notwithstanding the verdict on the loss of consortium claim, contending that it was barred by 21 V.S.A. § 622, the exclusivity provision of the workers' compensation statute. The trial court granted defendants' motion, striking the $2,000 award, and denied plaintiffs' motion for a new trial on the issue of damages.

II.

Plaintiffs assert that the trial court erred in failing to grant them a new trial on the issue of damages for two reasons: defendants produced insufficient evidence for the jury to apportion damages, and the jury award was grossly inadequate.

A.

Plaintiffs' first argument relates to apportionment of damages between those caused by the accident and those attributable to other causes. In its charge, the trial court instructed the jury on apportionment of damages in accordance with the principles set out in §§ 433A and 433B of the Restatement (Second) of Torts. These principles apply "whenever two or more causes have combined to bring about harm to the plaintiff, and each has been a substantial factor in producing the harm." Restatement (Second) of Torts § 433A comment a (1965). Consistent with these principles, the trial court charged the jury:

A plaintiff's recovery for damages caused by a defendant's wrongful act may not be proportionately reduced because of a preexisting weakness or susceptibility to injury such as an arthritic condition or weakness caused by a previous injury. However, there are two exceptions to the general rule. First, when a plaintiff is incapacitated or disabled prior to an accident, the defendant is liable only for the additional harm or aggravation that he caused. The burden of proof is on the Defendants to prove the extent of the damages which were caused by the preexisting condition. Second, when a plaintiff has a preexisting condition that would inevitably worsen, a defendant causing subsequent injury is entitled to have the plaintiff's damages discounted to reflect the proportion of damages that would have been suffered even in the absence of subsequent injury. Again, the burden of proof in such cases is on the defendant to prove the extent of the damages that the preexisting condition would inevitably have caused.

Plaintiffs do not challenge the charge as inaccurate. Instead, they assert that the jury apportioned damages by awarding them less than their full damages. Plaintiffs argue that the court should not have allowed the jury to apportion damages because defendants did not produce sufficient medical evidence to support apportionment.

Assuming plaintiffs are correct that there was insufficient evidence to apportion damages, they are not entitled to a new trial on damages for two reasons. First, although they claim to challenge the sufficiency of the evidence to support the damage award, they really challenge the trial court's decision to charge that damages could be apportioned. Plaintiffs, however, have failed to show that they objected to the charge below following its delivery. ¹ See V.R.C.P. 51(b) (party may not assign error to an instruction unless an objection is made following the charge). Failure to make an objection to the charge is a waiver that precludes raising the issue on appeal. See O'Brien v. Island Corp., 157 Vt. 135, 141, 596 A.2d 1295, 1298 (1991); Green v. Sherburne Corp., 137 Vt. 310, 311, 403 A.2d 278, 279-80 (1979).

Second, the jury verdict can be explained by an alternative theory of damages that does not involve apportionment of damages. Defendants' expert testified that the accident resulted in only a temporary increase in plaintiff's symptoms, and that plaintiff's continuing physical problems were due solely to the degenerative condition, which he described as permanent and likely to worsen over time. Other evidence indicated that the increased symptoms caused by the July 1985 accident had subsided by August 1986. The jury award covered all of the medical expenses incurred during the July 1985 to August 1986 period, and none thereafter. Thus, the jury apparently concluded that 100 percent of plaintiff's damages incurred in the thirteen-month period were attributable to the accident and all damages incurred after August 1986 were attributable to the preexisting condition or later accidents.

Plaintiff was awarded damages for medical expenses, pain and suffering, mental anguish, loss of enjoyment of daily activities, and lost earnings to August 1986. The jury awarded plaintiff no damages whatsoever for future lost earning capacity, future pain and suffering, or future general disability. It is clear that the jury concluded that the disability plaintiff suffered as a result of defendants' negligence was merely temporary, and did not create or...