Precopio v. City of Detroit, Dept. of Transp.
|415 Mich. 457,330 N.W.2d 802
|23 December 1982
|No. 10,Docket No. 64690,10
|Robert PRECOPIO, Plaintiff-Appellee, v. CITY OF DETROIT, DEPARTMENT OF TRANSPORTATION, Defendant-Appellant. Calendar415 Mich. 457, 330 N.W.2d 802
|Supreme Court of Michigan
Zeff & Zeff, A. Robert Zeff, Gary C. Berger, Detroit, for appellee.
George W. Crockett, Jr., Ronald W. Rice, Detroit, for appellant.
Michigan Trial Lawyers Ass'n by Albert Lopatin, Detroit, for Michigan Trial Lawyers Ass'n.
We granted leave to appeal to consider whether defendant City of Detroit's claim that the portion of the damage award to compensate for past and future pain and suffering in respect to plaintiff Robert Precopio's soft-tissue injury is excessive. We find the award to be excessive and remand for entry of a judgment of $132,900.
On September 30, 1972, a DSR bus struck Robert Precopio's automobile. The accident occurred before the adoption of the no-fault automobile liability act. Precopio commenced an action against the City of Detroit, seeking "a judgment that is fair and just in accordance with the facts produced in court, but in no case to exceed the sum of two hundred thousand ($200,000.00) dollars".
After mediation failed to produce an acceptable settlement, the case was tried without a jury before a circuit judge. The witnesses were Precopio, the bus driver, a passenger, Precopio's physician, and a physician who examined Precopio for the city.
Three witnesses offered conflicting testimony on the issue of liability. Precopio testified that he had stopped at a red light when the bus struck the rear of his automobile. The bus driver and the passenger testified that Precopio had abruptly changed lanes, without signaling or first determining the safety of his maneuver, before he made a sudden stop in front of the bus.
On the damage issue, Precopio testified that he did not undergo hospitalization either immediately following the accident or at any time before the trial. On the day following the accident, he began to experience pain in the back of his neck and, when he bent down to complete a task during his work as a spot sander, he found that he could hardly straighten up. He then consulted his family physician who prescribed heat treatments, injections, and medication.
Precopio testified that he continued to consult his physician once a week and sometimes twice a week during his first eight-month absence from work after the accident. Although he could not pinpoint the dates, Precopio said that he also missed work for eight months during 1975, that he missed two months in 1976, and that up to the time of trial he continued to miss approximately ten days a year as a result of pain from his injury.
The judge took the case under advisement and, a number of months later, issued an opinion finding the city liable and assessing Precopio's damages at $436,085. The judge permitted Precopio to amend the ad damnum clause of his complaint to conform with the judgment.
A divided panel of the Court of Appeals affirmed. The dissenting judge would have reversed and remanded for a new trial, stating that the amount of damages awarded shocked the judicial conscience and that the damages were unsupported by the proofs. 1
We affirm the judge's finding on liability and agree that he properly permitted Precopio to amend the ad damnum clause to conform to the award. We reverse the Court of Appeals on certain elements of the damage award, for a review of the record persuades us that excessive amounts were awarded for past and future pain and suffering, humiliation, and "loss of power in his hand" and for "future medications".
The city contends that the evidence clearly preponderates against the judge's finding of liability. In the city's view, the judge erred in disregarding the corroborating accounts of the bus driver and the passenger, whose testimony conflicted in certain irrelevant particulars, and in fully crediting Precopio's account of the accident although the city had impeached Precopio's truthfulness in answering similarly peripheral questions. The city also argues that it produced credible evidence to rebut the statutory presumption of negligence in a rear-end collision, 2 upon which the judge relied, and that, absent the presumption, Precopio failed to carry his burden of proof on negligence.
The court rule provides: GCR 1963, 517.1. This Court has said: "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." 3 In so holding, the Court acknowledged the superior vantage point of the trial judge in evaluating credibility. 4 On examination of this record we are not left with a definite and firm conviction that the judge erred in finding that the city was causally negligent. 5
The city contends that the judge erred in allowing Precopio to amend the ad damnum clause of his complaint to conform with the amount of damages ultimately awarded.
In Gibeault v. Highland Park, 391 Mich. 814, 217 N.W.2d 99 (1974), this Court adopted the analysis of the Court of Appeals in Gibeault v. Highland Park, 49 Mich.App. 736, 738-741, 212 N.W.2d 818 (1973), and disavowed contrary dictum in Phillips v. Rolston, 376 Mich. 264, 268-269, 137 N.W.2d 158 (1965), which had ignored the pertinent language of GCR 1963, 518.3: "Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings."
The city asserts that permitting amendment of the ad damnum clause in this case applies Gibeault retroactively to a complaint filed before the Gibeault decision. The language of the court rule spoke clearly to the issue and was recognized as authoritative in Piatkowski v. Mok, 29 Mich.App. 426, 185 N.W.2d 413 (1971). As this Court's order in Gibeault noted, only dictum in Phillips v. Rolston provided an apparently conflicting construction. 6
The city contends that the damage award was clearly excessive. The following items of damage comprise the award:
Property Damage $ 650 Past Medical 535 Past Wage Loss 31,400 Future Wage Loss 20,000 Future Medications 8,500 -------- $ 61,085 Past and Future Pain and Suffering $375,000 -------- Total Award $436,085
The city raises no objection to the portions of the award for property damage and for past medical expenditures, but contends that the remainder of the award clearly exceeds the range reasonably supported by the proofs, and asks that we either order a new trial or reduce the award.
As both parties acknowledge, decisions of this Court state that awards for personal injury should rest within the sound judgment of the trier of fact, particularly awards for pain and suffering, and recognize that there is no absolute standard by which to measure such awards. 7 Such deference in part reflects recognition that the trier of fact observes live testimony, while an appellate court reviews a printed record. 8 In a case tried to a jury, such deference may further reflect a reliance on the communal judgment of the members of the jury in awarding monetary compensation for such imponderables as pain and suffering. 9
In reviewing damage awards in cases tried to juries, this Court has asked whether the award shocks the judicial conscience, appears unsupported by the proofs, or seems to be the product of improper methods, passion, caprice, or prejudice; if the amount awarded falls reasonably within the range of the evidence and within the limits of what reasonable minds would deem just compensation for the injury sustained, the verdict has not been disturbed. 10
The instant action was tried before a judge sitting without a jury. We again note that Rule 517.1 governs appellate review of bench trials. 11 In Tuttle v. Dep't of State Highways, 397 Mich. 44, 243 N.W.2d 244 (1976), this Court noted that Rule 517.1 tracks the language of the "clearly erroneous" rule embodied in Rule 52(a) of the Federal Rules of Civil Procedure, and declared that a reviewing court must substitute its own appraisal of the record when, even though some evidence supports a finding of fact, 12 a review of the whole record leaves the appellate court with a definite and firm conviction that the judge made a mistake. 13 Thus, in a non-jury case, the scope of appellate review is broader than in a jury case. 14
The United States Courts of Appeals have determined that the clearly erroneous standard, applicable to findings of fact in general, also applies to a finding of the amount of damages, which, if excessive, may be set aside upon appeal. 15
On a review of the record, we are left with the definite and firm conviction that the judge awarded Precopio excessive damages for pain and suffering, humiliation, and loss of power in his hand.
Precopio testified that, during the first eight-month period, when he missed work after the accident, he experienced much pain, despite prescribed heat treatments and medication, especially pain radiating from the back of his neck down his right arm. He also noticed a loss of strength in his right arm, an intermittent numbness in his right arm and right hand, and a weakened grip in his right hand. Precopio conceded that he did not experience as much pain in his right hand at the time of trial. Nevertheless, he still experienced pain through his shoulder, the...
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