Symington v. Mayo

• Decision Date: 18 March 1999
• Docket Number: No. 980207,980207
• Citation: 590 N.W.2d 450,1999 ND 48
• Parties: Katherine SYMINGTON, Plaintiff and Appellee, and Helen Gladue, Plaintiff, v. Jessica C. MAYO and Joseph J. Mayo, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 450

590 N.W.2d 450

1999 ND 48

Katherine SYMINGTON, Plaintiff and Appellee, and Helen Gladue, Plaintiff, v. Jessica C. MAYO and Joseph J. Mayo, Defendants and Appellants.

No. 980207.

Supreme Court of North Dakota.

March 18, 1999.

Eric K. Fosaaen, of Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, for plaintiffs and appellee.

Patrick R. Morley, of Morley Law Firm, Ltd., Grand Forks, for defendants and appellants.

VANDE WALLE, Chief Justice.

¶1 Jessica and Joseph Mayo appealed from a judgment, entered upon a jury verdict, awarding Katherine Symington damages for injuries she incurred in an automobile accident. The Mayos also appealed from an order denying their post-judgment motion for judgment as a matter of law or, alternatively, for a new trial. We affirm, holding the trial court did not err in refusing to set aside the jury's award of $100,000 for future economic damages.

¶2 Symington was severely injured on March 13, 1996 when her car was struck by a vehicle owned by Joseph Mayo and driven by his daughter, Jessica. Symington sued for damages. ¹ The Mayos conceded fault and tried the issue of damages. The jury returned a verdict in favor of Symington, finding damages of $585,000, including $185,000 for past medical expenses, $300,000 for past and future non-economic damages, and $100,000 for future economic damages. The parties, by stipulation, adjusted the judgment to $451,474.46, and the Mayos appealed. The only issue on appeal is whether the trial court erred in refusing to grant a new trial or set aside the award of $100,000 for future economic damages.

¶3 Prior to submission of the case to the jury, the Mayos made a motion for judgment as a matter of law on the issue of future economic damages. The court denied the motion and submitted the case to the jury. After the jury found damages and a judgment was entered, the Mayos renewed their motion on the issue of future economic damages, requesting judgment as a matter of law, under N.D.R.Civ. P. 50, or, in the alternative, a new trial under N.D.R.Civ.P. 59. The trial court denied the post-judgment motion. Symington claims the Mayos' post-judgment motion was untimely under N.D.C.C. § 32-03.2-12. We conclude the motion was properly brought under N.D.R.Civ.P. 50 and N.D.R.Civ.P. 59 and is timely.

¶4 On appeal, the Mayos argue there was insufficient evidence to support the jury's award to Symington of $100,000 for future economic damages, and the trial court erred in refusing to set aside the award, as a matter of law. The trial court's decision on a motion brought under N.D.R.Civ.P. 50 to deny or grant judgment as a matter of law is based upon whether the evidence, when viewed in the light most favorable to the party against whom the motion is made, leads to but one conclusion as to the verdict about which there can be no reasonable difference of opinion. Felco v. Doug's North Hill Bottle Shop, 1998 ND 111, p 8, 579 N.W.2d 576. In considering this motion, the trial court must apply a rigorous standard with a view toward preserving a jury verdict, and so must we in our review on appeal. Diversified Financial Systems, Inc. v. Binstock, 1998 ND 61, p 10, 575 N.W.2d 677. In determining if the evidence is sufficient to create an issue of fact, the trial court must view the evidence in the light most favorable to the non-moving party, and must accept the truth of the evidence presented by the non-moving party and the truth of all reasonable inferences from that evidence which support the verdict. Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 166 (N.D.1985). The trial court's decision on a motion for judgment as a matter of law is fully reviewable on appeal. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313, 318 (N.D.1986).

¶5 Symington was 87 years old at the time of the accident, and her life expectancy at the time of trial was 6.4 years. She sustained severe injuries in the accident, from which her treating physicians had doubts she could survive. She sustained multiple severe fractures of the pelvic region, fractured ribs, and a head injury. Following surgery, she was hospitalized for about one month. She was then transferred to a nursing home, where she was bedridden for months and received care for over one year, until she was released in June 1997.

¶6 Symington is able to ambulate with a walker, but she has a considerable limp. She testified she has substantial pain on her left side both while walking and when lying down. She also testified the pain feels like "100 needles going in through there," and she takes pain pills every day. Her physical therapist testified Symington is at great risk of falling if she attempts to move about without a walker.

¶7 Symington can no longer cook for herself, and she needs assistance in bathing, fixing her hair, and cleaning her home. Her treating doctor testified Symington cannot be expected to improve. Symington's niece, who has training as a registered nurse, testified any setback by Symington, such as a fall or harsh winter weather, would most likely require her to return to the nursing home.

¶8 The Mayos concede there is record evidence showing Symington was spending, at the time of trial, at least $49 per week for home health care, meals on wheels, and house-cleaning assistance. They concede these expenses, amortized over Symington's 6.4 year life expectancy, would support an award of future economic damages of $16,307. They assert, however, the jury's award of $100,000 for future economic damages is wholly unsupported by the record evidence and is based upon mere speculation. We disagree.

¶9 To recover future medical expenses, a plaintiff has the burden of showing substantial evidence to establish with reasonable medical certainty future medical services are necessary. Erdmann v. Thomas, 446 N.W.2d 245, 247 (N.D.1989). A jury can infer the reasonable cost of future medical expenses based upon record evidence of past medical expenses incurred by the plaintiff. Olmstead v. First Interstate Bank, 449 N.W.2d 804, 808 (N.D.1989). Furthermore, a jury can infer the necessity of future nursing care based upon record evidence showing severe injuries sustained by a plaintiff and disabilities caused by those injuries. See South v. National Railroad Passenger Corp., 290 N.W.2d 819, 842 (N.D.1980). See also Bloomquist v. Wapello County, 500 N.W.2d 1, 7-8 (Iowa 1993) (award of damages for future nursing and related expenses to employees who suffered poisoning from toxic pesticide was question for the jury).

¶10 The facts and analysis in South, 290 N.W.2d at 842, are particularly applicable to the issue of future economic damages in this case. The plaintiff in South was struck by a train and sustained substantial injuries to his left shoulder and right arm, which required him to receive assistance in dressing, combing his hair, and performing other daily activities of living. The evidence showed the plaintiff's injuries had caused him to fall on more than one occasion, and it was impossible for him to get up without assistance. His treating physician testified the injuries were permanent, and it was possible his patient would never improve. Based upon that evidence, this Court concluded the jury could have inferred with reasonable medical certainty the plaintiff would require future nursing services, justifying an award of future economic damages. South, 290 N.W.2d at 842. The record evidence in this case is similar to the evidence in South.

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