Scharrel v. Wal-Mart Stores, Inc.

• Decision Date: 08 May 1997
• Docket Number: No. 95CA1191,WAL-MART,95CA1191
• Citation: 949 P.2d 89
• Parties: 21 Colorado Journal 651 Phillip SCHARREL and Joyce Scharrel, Plaintiffs-Appellees and Cross-Appellants, v.STORES, INC., a Delaware corporation, Defendant-Appellant and Cross-Appellee. . IV
• Court: Colorado Court of Appeals

Page 89

949 P.2d 89

21 Colorado Journal 651

Phillip SCHARREL and Joyce Scharrel, Plaintiffs-Appellees and Cross-Appellants, v. WAL-MART STORES, INC., a Delaware corporation Defendant-Appellant and Cross-Appellee.

No. 95CA1191.

Colorado Court of Appeals Div. IV.

May 8, 1997.

Rehearing Denied June 26, 1997.

Certiorari Denied Jan. 20, 1998.

Haligman and Lottner, P.C., Jeffrey A. Hyman, Brenda M. Sauro, Richard I. Brown, Scott L. Levin, Denver, for Plaintiffs-Appellees and Cross-Appellants.

Hall & Evans, L.L.C., Alan Epstein, John P. Mitzner, Robert J. McCormick, Denver, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge BRIGGS.

Defendant, Wal-Mart Stores, Inc., appeals the judgment entered on a jury verdict finding it liable to plaintiffs, Phillip and Joyce Scharrel, on their claims for negligence, premises liability, and negligent infliction of emotional distress. Defendant contends the trial court erred in, among other things, admitting expert testimony on the damages plaintiffs sustained in loss of life enjoyment; refusing a proposed jury instruction on intervening cause; withdrawing during jury deliberations a separate instruction on foreseeability; and denying its motion for a directed verdict on the claim of negligent infliction of emotional distress. On cross-appeal, plaintiffs assert that § 13-21-102.5, C.R.S. (1987 Repl.Vol. 6A), which limits the amount recoverable for non-economic damages, is unconstitutional.

We reverse the award of non-economic damages on the claims for negligence and premises liability and remand the cause for a new trial on those damages. We also reverse the judgment against defendant on the claim for negligent infliction of emotional distress. We affirm the judgment against defendant on the claims for negligence and premises liability and the damage awards on those claims for economic losses and physical impairment. Finally, we uphold the constitutionality of the limitations on the award of non-economic damages under § 13-21-102.5.

Plaintiffs went to one of defendant's stores to purchase a power ice auger. Because the ice augers were located in boxes on top of a shelf approximately eight feet above the floor, plaintiffs requested the assistance of an employee in removing one of the boxes. As the employee stood on top of a ladder and attempted to remove one of the boxes from the shelf, he lost his balance. As he fell, the employee pulled down at least two of the boxes containing ice augers, as well as a display of ice chests. Both plaintiffs were struck by the falling merchandise.

Mr. Scharrel alleged he sustained permanent inner ear and brain damage, disk herniation, and, as a result of these physical injuries, a permanent psychiatric condition. Mrs. Scharrel suffered no serious physical injuries, but claimed that, as a result of the accident, she sustained emotional and psychological injuries.

Plaintiffs filed suit, alleging negligence, premises liability, negligent infliction of emotional distress, and loss of consortium. A jury returned a verdict finding defendant liable to Mr. Scharrel on his claims of negligence and premises liability and awarding him $1,027,243 for his economic losses, $1,000,000 for his noneconomic losses, and $1,000,000 for his permanent physical impairment. Pursuant to § 13-21-102.5, the trial court reduced the noneconomic damages award to $500,000.

The jury awarded Mrs. Scharrel $300,000 on her claim for negligent infliction of emotional distress. It returned a verdict in favor of defendant on her claim for loss of consortium.

I.

Defendant contends the trial court erred in permitting an expert to testify as to the amount of damages sustained by plaintiffs in loss of life enjoyment, sometimes referred to as hedonic damages. We agree.

CRE 702 permits expert testimony if it is based on scientific, technical, or other specialized knowledge, and if the opinion will assist the trier of fact in understanding the evidence or determining a fact in issue. The basis for admissibility is that the witness can offer assistance on a matter not within the knowledge or common experience of people of ordinary intelligence. Scognamillo v. Olsen, 795 P.2d 1357 (Colo.App.1990).

Here, an economist testified that the hedonic damages Mr. Scharrel and Mrs. Scharrel had sustained were, respectively, $1,656,103, and $1,308,982. The economist reached these conclusions by employing a "willingness-to-pay" method of valuation. This method measures the value of human life by examining, in the economist's words, "what we pay to prevent the loss of a life, [or] what we pay for life-saving measures."

To determine the value of life or the loss of enjoyment of life based on the willingness-to-pay approach, the economist examined studies regarding an individual's willingness to pay for safety devices, such as airbags and smoke detectors; an individual's willingness to accept payment to endure risk of death in employment, such as the risk of working as a high-rise window washer or a coal miner; and the willingness of the government to regulate with respect to safety features. Based on these studies, the economist concluded that the average life is valued at $2,300,000. In arriving at his final conclusions, the economist adjusted that figure based on each plaintiff's life expectancy and a psychologist's report purporting to estimate the percentage to which each plaintiff had lost the capacity to derive a meaningful experience from life.

In most jurisdictions that have considered the issue, the assumptions underlying expert testimony concerning hedonic damages have been criticized, resulting in the exclusion of the proffered testimony because it would not aid the jury in evaluating the evidence. See Mercado v. Ahmed, 974 F.2d 863 (7th Cir.1992); Kurncz v. Honda North America, Inc., 166 F.R.D. 386 (W.D.Mich.1996); Ayers v. Robinson, 887 F.Supp. 1049 (N.D.Ill.1995); Hein v. Merck & Co., 868 F.Supp. 230 (M.D.Tenn.1994); Sullivan v. U.S. Gypsum Co., 862 F.Supp. 317 (D.Kan.1994); Livingston v. United States, 817 F.Supp. 601 (E.D.N.C.1993); Anderson v. Nebraska Department of Social Services, 248 Neb. 651, 538 N.W.2d 732 (1995); Montalvo v. Lapez, 77 Hawai'i 282, 884 P.2d 345 (1994); Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993); Southlake Limousine & Coach, Inc. v. Brock, 578 N.E.2d 677 (Ind.Ct.App.1991).

One criticism is that the willingness-to-pay model estimates the value of an anonymous, statistical life. It does not purport to value the loss of life enjoyment suffered by a specific plaintiff. See Livingston v. United States, supra. Indeed, here the economist had never met or spoken with plaintiffs, and had not attempted to ascertain whether circumstances were present in their lives which might make their enjoyment of life greater or lesser than that of the average person.

Another criticism is that factors other than risk reduction often play an important role in decisions regarding consumer purchasing, employment, and governmental regulation. For example, an individual may wish to engage in certain risk-reducing activity, such as purchasing a smoke detector, but not have the financial resources to do so. Other influences, such as advertising and civic pride, may weigh as heavily as risk reduction when an individual purchases a product or makes an employment decision. Likewise, the model does not consider the effects of political influences, such as budget restraints and political lobbying, on a government's decision to impose regulations. See Mercado v. Ahmed, supra; see also Hein v. Merck & Co., supra (attitudes, tastes, and psychological make-up affect one's hedonic potential more than willingness to pay).

We conclude the economist's testimony did not assist the jurors in determining a matter outside their knowledge or common experience and thus was not admissible under CRE 702. See Mercado v. Ahmed, supra; Ayers v. Robinson, supra; Hein v. Merck & Co., supra; Sullivan v. U.S. Gypsum Co., supra; Anderson v. Nebraska Department of Social Services, supra; but see Johnson v. Inland Steel Co., 140 F.R.D. 367 (N.D.Ill.1992); Sherrod v. Berry, 629 F.Supp 159 (N.D.Ill.1985), rev'd on other grounds, 856 F.2d 802 (7th Cir.1988). Because its admission cannot be deemed harmless, it is necessary to remand the cause for a new trial on non-economic damages.

II.

Defendant next contends plaintiffs failed to establish a prima facie case of negligent infliction of emotional distress, and the trial court therefore erred in denying its motion for a directed verdict. In the circumstances presented here, we agree.

To establish a prima facie case of negligent infliction of emotional distress, plaintiff was required to present evidence from which a jury could reasonably conclude that defendant's negligence subjected her to an unreasonable risk of bodily harm and caused her to be put in fear for her own safety, that plaintiff's fear was shown by physical consequences or long-continued emotional disturbance, and that plaintiff's fear was the cause of the damages she claimed. See Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (Colo.1978); Hale v. Morris, 725 P.2d 26 (Colo.App.1986); CJI-Civ.3d 9:3 (1988); see also Restatement (Second) of Torts § 436(2) (1965).

If the evidence, when considered in the light most favorable to plaintiff, compels the conclusion that reasonable persons would not disagree, and no evidence has been presented that could sustain a verdict against the defendant, then plaintiff has failed to establish a prima facie case. In these circumstances, the court should enter a directed verdict in favor of defendant. See Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198 (Colo.1992); Montes v. Hyland Hills Park, 849 P.2d 852 (Colo.App.1992); Technical Computer Services, Inc. v. Buckley, 844 P.2d 1249 (Colo.App.1992).

At trial, Mrs. Scharrel testified that when the boxes fell, she feared for her safety. Evidence in the record further supports a finding that she...