Michaels v. Kroger Co.

• Decision Date: 14 September 1984
• Docket Number: No. 68230,68230
• Court: Georgia Court of Appeals
• Parties: MICHAELS v. KROGER COMPANY.

Page 903

322 S.E.2d 903

172 Ga.App. 280

MICHAELS v. KROGER COMPANY.

No. 68230.

Court of Appeals of Georgia.

Sept. 14, 1984.

Rehearing Denied Sept. 28, 1984.

Certiorari Denied Nov. 6, 1984.

Gerald P. Word, Carroltton, for appellant.

Wade K. Copeland, William E. Zschunke, Atlanta, for appellee.

QUILLIAN, Presiding Judge.

Sharon Michaels, the plaintiff, brought this action against the defendant Kroger Company as a result of a slip and fall at the defendant's store on the evening of August 20, 1979. Ms. Michaels was familiar with the defendant's store and proceeded directly to the area where the item she wanted was located. After she had turned into an aisle and made a few steps she fell. She said: "My foot slipped out from under me ... I went up in the air and hit on my entire back and head." Her boyfriend and an assistant manager helped her to a chair a few feet away from where she fell. She waited a few minutes in the store and then went home. When she arrived at her apartment, it was about 1:15 a.m. She said she had a headache. The next afternoon, August 21, she went to the hospital and complained of headache, backache, and neck pain. She was examined, x-rayed, given a shot for pain and a tetanus shot, and referred to a doctor. Eventually she was seen by several doctors and hospitalized for 32 days.

When Ms. Michaels was assisted to a chair in the Kroger store after the incident, it was observed that her shoe had moisture on it. Her boyfriend and the assistant manager found two puddles of water approximately the size of your hand near the cash registers and close to where Ms. Michaels had walked when she entered the store. Terry Lowe, a night cashier at Kroger, testified that she had been mopping the floor in the area near her cash register but was not aware she had left any water on the floor until she saw the puddles after the incident. She thought the water must have come from her mop bucket when she was wringing out the mop. She heard Ms. Michaels say that she was "okay" and then she went back to her work.

Ms. Michaels testified as to her prior jobs and income. She had worked as a file clerk for Prudential for four years and when she left she was earning $94 per week. During that same time she also worked for Avon and her income varied from as little as $50 per month to as much as $400 per month. After she married she worked at a health food store with average earnings of $100 per week. After her divorce she worked at a furniture sales store and did interior design work. She also sold jewelry. Her grandmother died and left her an inheritance and she started doing "free lance modeling." She had been selected to be on Mademoiselle's Career Merchandising Board when she lived in Florida and had modeled for Prudential. The trial court refused to permit evidence of her earnings in 1979 earned by "free lance modeling" but permitted counsel to perfect the record. She testified that she worked 2 or 3 days for a Dental Convention at $100 per day, and modeled fashion clothing at the Merchandise Mart in a couple of shows at $35 to $45 per day. She modeled sportswear and jeans for a different company for $40 to $45 per day. In summary, she worked 10 shows in 1979 prior to her injury, from two to three days each, with compensation from $35 to $100 per day. She had purchased an airline ticket to New York and had made several appointments in New York to see about getting into a career of dress designing or some related type of business dealing with clothing. Following her injury, Ms. Michaels suffered hair loss and loss of weight. She normally weighed from 110 to 120 pounds and her weight after her injury fell to 93 to 95 pounds and she could not gain any additional weight. She presented pictures of herself before the incident in which she was injured. One of her expert witnesses testified that he would not hire her as a model because of her present appearance. Plaintiff also presented the testimony of a doctor of chiropractic, who was also a specialist in disability ratings. He was of the opinion that she had been permanently injured because of a torn ligament and cervical spine injury. She has a "25 percent whole-man disability" which is permanent and will degenerate further. Her ability to work has been diminished and she cannot do any type of work that has constant motion of the neck or places exceptional stress to the neck, i.e. "typing, housework, running a vacuum cleaner ..." Any type of work that has "a stressed range of motion is going to cause her to have headaches, neck and shoulder pain ..." A medical doctor diagnosed her physical condition as "post concussion syndrome," causing nausea, occasional vomiting, headache, loss of weight, abdominal pain and constipation. The doctor who examined her after her injury was of the opinion that her x-rays showed no injuries to the neck, back or shoulder. He saw nothing which would indicate any permanent disability.

The plaintiff attempted to introduce the testimony of an economist and of the plaintiff as to her diminished earning capacity which would include loss of earnings as a model. The trial court ruled out such evidence. Defendant's counsel argued that such information had been requested in interrogatories and the answer had been "None." The court also ruled that "the best evidence rule, which earnings would be the financial records or W-2 forms or income tax returns or something else other than off the top of [the plaintiff's] head. This is the reason why I indicated to you I do not think you are going to be able to lay sufficient foundation. You can lay it for pain and suffering, loss of wages or diminished earning capacity as pain and suffering, but for special damages it requires such particularity and such certainty that generally you cannot unless you have been working in that job and had that job interrupted, but when it is some situation that is spasmodic as her work history and this is the thing, you put in a work history that goes back over a number of years and it is more remarkable for the absence of working than it is for working and that's why it makes it speculative ... You cannot, from what you have produced so far, satisfy requirements for particularitiness [sic] for it as a special damage ... Because of the surprise and this is a pertinent aspect of the case and the pretrial order did specifically require the divulging of that information and the discovery had requested it. The Court would exclude it for that reason and that reason only, separate and apart from the fact that it does not adequately meet the requirements [pertaining to specificity] ..."

Plaintiff appeals from a judgment of $3,000 in her favor. Held:

Plaintiff enumerates as error the removal from consideration of the jury, evidence, argument, and a charge on diminished future earning capacity as an item of damage. Her complaint sought recovery of damages for mental and physical pain and suffering, medical expenses, and lost earnings. The pretrial order required that plaintiff specify what general and special damages were sought, including lost wages--past and future, and any percentage of permanent disability and diminution between past and present earnings, or future loss of wages. Plaintiff's response to the pretrial order showed general damages of pain and suffering, both physical and mental, and special damages of medical expenses, past and future, and she sought no lost wages--past or future. However, plaintiff sought and the trial court permitted an amendment to the pretrial order, in which she claimed "a temporary total disability and a permanent partial disability as a result of this incident and is thus claiming pain and suffering for the permanent as well as diminished future earning capacity for said permanent disability. The exact amount can best be developed at trial."

Prior to trial, defendant deposed plaintiff and explored her work history. Her prior response to defendant's interrogatories had listed temporary jobs in "shows at the Furniture Mart, World Congress Center, the Apparel Mart and the Merchandise Mart." However, at that time plaintiff was not seeking damages for lost wages or diminished earning capacity and so informed defendant, but added that if her records could be located they would be made available. During an exchange of remarks in court, plaintiff's counsel stated to the court that such information had been made available to defendant's counsel before trial. Defendant made a qualifying remark but the issue was not fully explored.

The developing law in Georgia on the issue of damages for a permanent injury which had diminished the victim's ability or capacity to earn money has been marked by a curious paradox. The general law of damages is that " '[w]here a party sues for damages, he has the burden of proof of showing the amount of loss in a manner in which the jury or the trial judge in nonjury cases can calculate the amount of the loss with a reasonable degree of certainty. An allowance for damages cannot be based on guesswork.' " Lester v. S.J. Alexander, Inc., 127 Ga.App. 470, 471, 193 S.E.2d 860. However, as a result of infancy, or coverture--prior to 1943 (see Ga.L.1943, p. 319; Code Ann. § 53-512--repealed by Ga.L.1959, pp. 466, 492), those plaintiffs had no legal earnings even though the victim may have suffered a permanent injury which diminished his or her earning capacity. An infant seldom had any history of earnings, and any earnings the wife brought into the marriage were the property of her husband. Powell v. Augusta etc. R. Co., 77 Ga. 192, 200, 3 S.E. 757. Legal fiction was resorted to so that where an injured plaintiff had no prior earnings, and his or her "capacity to labor" was permanently impaired "such deprivation or impairment can be classed with pain and suffering ..." Atlanta St. R. Co. v. Jacobs, 88 Ga. 647, 652, 15 S.E. 825. Thereafter, a dichotomy arose, where a plaintiff suffered permanent impairment of...