Smith v. Syd's, Inc.

Decision Date22 April 1991
Docket NumberNo. 06A04-8910-CV-459,06A04-8910-CV-459
Citation570 N.E.2d 126
PartiesConnie E. SMITH, Appellant and Cross-Appellee (Plaintiff Below), v. SYD'S, INC., and Appellee (Defendant Below), Jan Deering d/b/a Deering Cleaners, Appellee and Cross-Appellant (Defendant Below).
CourtIndiana Appellate Court

Frank E. Spencer, Indianapolis, for appellant and cross-appellee.

Robert A. Smith, Michael P. Bishop, Bishop Smith & Bishop, Stephen L. Bola Hill Fulwider McDowell Funk & Matthews, Indianapolis, for appellee.

CHEZEM, Judge.

Case Summary

Plaintiff-Appellant, Connie E. Smith, appeals from the denial of her "Motion for Additur, or in the Alternative, for New Trial on the Issue of Damages" ("Motion"). We reverse and remand.

Issues

Smith presents three (3) issues for our review. However, because we reverse and remand, we address only the following:

I. Were the damages inadequate as a matter of law, so that the trial court erred in denying the Motion.

II. Did the trial court err in withdrawing from evidence certain medical expenses of Smith.

In addition, Deering raises four (4) issues by cross-appeal, which we consolidate and restate as follows:

Was Smith an implied invitee as to Deering, so that the trial court properly denied Deering's Motion for Summary Judgment and Motion for Judgment on the Evidence.

Facts and Procedural History

Smith was injured when she fell down a flight of stairs which was between two buildings located in Noblesville, Indiana. This incident happened at approximately 1:30 a.m. on February 24, 1987.

At the time, Smith was in the hallway when she heard the door at the bottom of the staircase open and close. As she stepped over to see who had come in, her right foot caught on an old piece of "remnant" carpet at the top of the staircase. Smith tripped over the carpet, lost her balance, and fell down the stairs.

One of the buildings in question is owned by Syd's, Inc. The business on the first floor is "Syd's Bar." On the second floor are three apartments, one of which was occupied at the time by Smith.

The other building is owned by Phillip Jan Deering. On the first floor is a business known as "Deering Cleaners." There is one apartment on the second floor of this building.

The staircase in question provides access to the apartments in both buildings. With respect to ownership, Deering's counsel stated at trial:

There is absolutely no dispute in this case. There never has been from day one that Jan Deering owned some of that staircase. I would imagine--and I don't want to speak for Syd's--but there's been no dispute in this case from day one that Syd's owned part of the staircase. Neither one of them know how much. They both testified to that.

Prior to her fall, Smith lived in the second floor apartment for approximately twelve years, and was an employee of Syd's Bar. There, she waited on tables, cooked food, tended bar, performed janitorial work, and kept the business' books. On occasion, Smith would sweep and mop the second floor hallway, keep the lights on and operating in that hallway, and respond to tenant complaints.

On July 21, 1987, Smith filed her Complaint for Damages, which alleged that the defendants were negligent because: (1) the hallway was "improperly lit"; (2) the hallway was "improperly maintained"; and (3) there were obstacles in the hallway, such as "worn carpet."

At the conclusion of trial, the jury returned a verdict for Smith, and determined the total amount of damages she was entitled to recover, without regard to fault, was $75,000.00. The jury then apportioned fault as follows: (1) Smith--50%; (2) Syd's--40%; and (3) Deering--10%. Therefore, the trial court entered judgment against Syd's for $30,000.00, and against Deering for $7,500.00.

Other facts will be added as needed.

Discussion
I

Smith first argues that the damages she was awarded were so small and inadequate that they "could not have been based upon the law and the evidence in the case and could only have been arrived at by the consideration of improper factors." Smith argues that the trial court should have granted her "Motion for Additur, or in the Alternative, for New Trial on the Issue of Damages." We disagree.

The trial court cannot properly vary the jury's award and enter judgment for a different amount unless it finds, as a matter of law, that the damages awarded were excessive or inadequate. State v. Bircher (1983), Ind.App., 446 N.E.2d 607, 610. In addition, "[w]here the evidence on damages is variable or conflicting, and the jury's award is within the range of the evidence, entry of judgment modifying the jury's award is an invasion of the jury's province and consequently erroneous." Coffel v. Perry (1983), Ind.App., 452 N.E.2d 1066, 1068.

The jury returned a verdict for Smith, and determined the total amount of damages she was entitled to recover, without regard to fault, was $75,000.00. However, the judgment was reduced to $37,500.00 because the jury determined that Smith was 50% at fault. Also, the evidence at trial indicated that the damages she incurred were at least $6,060.00. Under these circumstances, the trial court properly refused to grant additur. The damages were within the range of evidence at trial.

Moreover, even if the damages were inadequate, the trial court properly refused to grant a new trial limited to that issue. It is improper to grant a new trial as to damages where the issue of liability "is hotly contested and the evidence and inferences are conflicting and might have supported a verdict either for the plaintiff or the defendant." State v. Tabler (1978), 178 Ind.App. 31, 381 N.E.2d 502, 505, trans. denied. In other words, a new trial limited to damages is proper only when the evidence of liability is so clear that there is no issue on that point for a second jury to retry. Id.; State v. Kallembach (1983), Ind.App., 452 N.E.2d 1027, 1029.

In the present case, the issue of liability is not clear. This is evidenced by the fact that the jury apportioned 50% fault to Smith. Further, the facts at trial indicated that Smith had prior knowledge of the obstacles in the hallway, as well as the alleged "improper lighting." Simply stated, the trial court did not err in refusing to grant a new trial limited to damages.

II

Smith next argues the trial court erred in withdrawing the evidence of her medical expenses in excess of $6,060.00. We agree.

At trial, Smith's counsel introduced Plaintiff's Exhibit 9, which set forth Smith's medical expenses of $32,436.80. Defendants objected to the exhibit on the grounds that Smith had not presented medical testimony establishing that the expenses were "reasonable and necessary." But they had no objection to the extent Exhibit 9 was an accounting of the medical expenses incurred by Smith. The trial court then admitted the exhibit into evidence "just as a summary of her testimony on what she was charged." Smith later provided more detailed testimony about her injuries and the costs of treatment.

Near the end of trial, Defendants moved to have Exhibit 9 withdrawn from evidence, as follows:

Your Honor, we would move that Plaintiff's exhibit nine, at this time, be withdrawn from evidence. And that's an exhibit that shows the medical totaling $32,436.80. It was tendered in [sic] the basis that the witness said she had incurred these expenses, subject to offering reasonable and necessary evidence. The only evidence that came in was a [Dr.] Beghin's [sic] $6,060.00 amount. That is before the Jury. The rest there has been no evidence of reasonableness or necessity and we would ask therefore that this be withdrawn.

In ruling on this motion, the trial court stated:

The law in Indiana requires medical expert medical [sic] testimony unreasonableness [sic], and I don't find in this case. [Y]ou do have Dr. Beghin's [sic] testimony in his deposition of the reasonableness, he was asked that about the $6,060.00, so I will have to sustain the objection and Plaintiff's exhibit 9 at this time will be withdrawn.

The proper measure of damages for medical services is the reasonable and fair value of medical expenses necessarily incurred by the plaintiff. Herrick v. Sayler (N.D.Ind.1958), 160 F.Supp. 25, 29; Kampo Transit, Inc. v. Powers (1965), 138 Ind.App. 141, 211 N.E.2d 781, 793. The law has been discussed as follows:

[T]he law of Indiana will allow a plaintiff in a personal injury action to recover neither the actual amount of medical bills charged to him nor the amount of medical bills paid by him, but rather, the reasonable and fair value of medical expenses necessarily incurred by him.

Herrick, 160 F.Supp. at 28. Therefore, the plaintiff may recover the reasonable value of the medical services rendered to him because of the injury, provided the services were necessary. 22 Am.Jur.2d Damages Sec. 198; Kenwood Tire Co. v. Speckman (1931), 92 Ind.App. 419, 176 N.E. 29, 31.

The question here is whether Smith sufficiently established both prongs of the "reasonable and necessary" test with respect to the medical expenses set forth in Exhibit 9. If so, the jury should have been allowed to consider all of the medical expenses, or $32,436.80. Under these circumstances, the trial court's withdrawal of the exhibit from the jury's consideration in determining damages would be reversible error warranting a new trial.

In Indiana, the few cases which are instructive here include Summers v. Tarney (1890), 123 Ind. 560, 24 N.E. 678, Brosnan v. Sweetser (1891), 127 Ind. 1, 26 N.E. 555, Herrick v. Sayler (N.D.Ind.1958), 160 F.Supp. 25, and Chemco Transport, Inc. v. Conn (1987), Ind.App., 506 N.E.2d 1111, modified, Ind., 527 N.E.2d 179 (1988). Contrary to the assertions of Syd's and Deering, none of these cases state that expert medical testimony is required to satisfy the "reasonable and necessary" test. In addition, the trial court incorrectly stated the law on this matter in Indiana.

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