Tamplin v. Star Lumber & Supply Co.

• Decision Date: 31 December 1991
• Docket Number: No. 65921,65921
• Citation: 824 P.2d 219,16 Kan.App.2d 352
• Parties: Ann Marie TAMPLIN, Thomas Tamplin, and Susan Tamplin, Appellees, v. STAR LUMBER & SUPPLY COMPANY, Appellant.
• Court: Kansas Court of Appeals

Page 219

824 P.2d 219

16 Kan.App.2d 352

Ann Marie TAMPLIN, Thomas Tamplin, and Susan Tamplin, Appellees, v. STAR LUMBER & SUPPLY COMPANY, Appellant.

No. 65921.

Court of Appeals of Kansas.

Dec. 31, 1991.

Review Granted March 10, 1992.

Syllabus by the Court

1. Misconduct by a juror in making an unauthorized inspection of the scene of an accident does not require a mistrial if the juror merely observed what was the undisputed layout of the scene as it was testified to at the trial. This is especially true if the juror does not report his or her findings to the rest of the jury.

2. Under the facts of this case, counsel's request to the jury not to award more than $250,000 for pain and suffering did not constitute an improper reference to the statutory cap on pain and suffering awards.

3. It is necessary to raise a contemporaneous objection to a reference to a statutory cap on damages to preserve the issue for appeal.

4. The jury may consider, as an element of mental anguish only, the worry a person may suffer due to concern over the possibility of a medical condition arising from an injury, even if the future condition is only a reasonable possibility and not a probability.

5. The jury may consider the impact inflation may have on the future cost of medications necessary to treat a medical condition arising out of an injury. Expert testimony is not necessary to establish the impact of inflation.

Jay F. Fowler, Stephen M. Kerwick, and Susan H. Tilton, of Foulston & Siefkin, Wichita, for appellant.

Randall E. Fisher, of Michaud, Hutton & Bradshaw, Wichita, for appellees.

Before REES, P.J., and DAVIS and PIERRON, JJ.

PIERRON, Judge:

In a personal injury action tried to a jury, plaintiff was awarded $723,150.81, based on the negligence of defendant Star Lumber & Supply Company, Inc. (Star Lumber). Star Lumber appeals the trial court's denial of its motion for a new trial.

Ann Marie Tamplin was six years old at the time she was injured and nine when the case was tried. Ann's parents had gone to a Star Lumber store to look at Formica for a dining room table. While there, a roll of vinyl flooring fell, striking Ann on the head and knocking her to the cement floor. The roll was approximately 6 feet long and weighed about 150 pounds. Star Lumber stored its rolls of vinyl flooring by standing them on one end next to a wall.

The injuries to the victim caused her to bleed through her mouth, nose, and ears: she also vomited blood. Testimony indicated that the pool of blood and water around Ann was probably 5-6 feet in diameter. When Ann was brought into the emergency room, she was initially considered to be in a life-threatening condition, but her condition stabilized. Her skull was fractured in three places, and her eardrum was perforated. After Ann was released from the hospital, later tests determined that her pituitary gland was injured.

As a result of her pituitary gland injury, Ann has a permanent condition known as diabetes insipidus. This is not the more commonly known form of diabetes which is treated with insulin. Ann's condition causes her to urinate quite frequently. She must take a medicine, DDAVP, twice a day to regulate this. Were Ann ever without her medicine and unable to drink the large quantities of water she would require as a result of the frequent urination, she would die.

The medicine is a liquid form which Ann must inhale through her nose or have her parents assist her by blowing the medicine up her nose. Testimony indicated that it embarrasses Ann to take her medicine in front of her friends. Testimony was admitted that when the dosage of medicine needs to be adjusted, Ann does not sleep well because she must get up to go to the bathroom and get a drink frequently. As a result of these restless nights, she will sometimes be found sleeping when other children are out playing. Other testimony indicated Ann was, overall, a normal, active child.

The product label that comes with the DDAVP states that the medicine must be kept refrigerated. As a result, Ann's parents have to make special arrangements on trips to keep the medicine refrigerated and Ann has had to forego activities like Brownie camp because of her medicine. However, defendant's expert testified that the caution regarding refrigeration may be safely ignored.

One of plaintiff's expert witnesses testified that there is a very slight chance that when it is time for Ann to go through puberty, her pituitary gland will not produce the necessary chemical to trigger sexual maturation. This testimony was admitted, and the jury was instructed that this possibility was too remote and speculative for money damages to be awarded. The jury was instructed to consider such testimony "only as it may bear on the mental anguish, if any, suffered by Ann Marie Tamplin because of the slight possibility that she may not develop normally."

The jury found that Ann's parents were 5% at fault and that Star Lumber was 95% at fault. It awarded $761,211.38 in damages. The trial court entered judgment for the plaintiff in the amount of $723,150.81. Star Lumber timely appeals, asserting that the trial was not fair and it should be granted a new trial. Additional facts will be brought out as necessary.

The first issue on appeal is whether a new trial should have been granted due to alleged juror misconduct.

It has been held that it is within the sound discretion of the trial court to grant or deny a motion for new trial based on juror misconduct. Unless it appears that the trial court has abused this discretion, the refusal to grant a new trial will not be disturbed. Pike v. Roe, 213 Kan. 389, 392, 516 P.2d 972 (1973).

"Our rule has always been that it is for the trial court to determine, in the first instance, whether misconduct on the part of the jury has resulted in prejudice to a litigant, and that its judgment thereon will not be overturned unless abuse of discretion is manifest....

"The rationale of the rule is obvious. The trial court is situated far more advantageously to judge whether a verdict stems from misconduct than is this court, on appeal. Not only does the trial judge personally see and hear each witness but he is in a position to observe the conduct of and interrelationship existing between litigant, counsel and jury, and can intuitively sense the atmosphere in which the proceedings are being conducted. The trial court can thus call to its assistance experiences, observations and occurrences which are denied to us." Furstenberg v. Wesley Medical Center, 200 Kan. 277, 285-86, 436 P.2d 369 (1968).

It is undisputed that one juror in this case, during the trial, went to the Star Lumber store in question to see how the rolls of vinyl flooring were stored. In defending against a motion for new trial, plaintiff's counsel told the court:

"Mr. Gass had testified that they had taken remedial steps to constrain the rolls of linoleum, and I guess, from what [the juror] told me, she was curious to see if they really did that. They did, and that's what she saw, and she saw nothing more than what was already in evidence at that point."

Apparently, this juror was overheard telling another juror that she had gone to the floor covering store to see how the vinyl was stored. At this point the juror was interrupted by the presiding juror and told not to discuss this any further, and the incident was reported to the court. The court brought the jury in from deliberations, questioned the presiding juror as to whether any discussion had taken place about this juror's investigation, learned that it had not been discussed, and admonished the jury not to discuss the juror's visit to the floor covering store and not to allow the visit to influence its deliberations.

Counsel have stipulated that the results of the juror's investigation at the defendant's store were not discussed by the jury. When the jury resumed its deliberations, both the plaintiff and the defendant moved for a mistrial, on which the court reserved ruling.

In its motion for a new trial and on appeal, the defendant expressed concern that although the results of the investigation were not discussed, the offending juror advocated a finding of 100% fault against Star Lumber and higher damages than were eventually awarded. Defendant contends that the rest of the jurors knew that this juror knew something they did not know and that they gave great weight to the fact she was against Star Lumber. The defendant argues that the jury was prejudiced as a result.

The plaintiff points out that the offending juror was not the only juror who advocated a higher percentage of fault and damages than were eventually awarded. Additionally, plaintiff argues in her brief that it is not clear that the other jurors knew who the offending juror was. This would draw into question defendant's contention that even though the results of the improper investigation were not made known to the other jurors, they knew who had made the investigation and gave more credence to the offending juror's opinion during deliberations.

Plaintiff is correct in pointing out that the record does not make clear whether the jury knew who the offending juror was. She was never admonished by name by the court. Defendant did file an affidavit of one juror (not the presiding juror) which indicates that during deliberations a juror announced she had gone to the floor covering store, that she was prevented from discussing her findings, and that she continued to participate in deliberations and "adamantly advocated a finding of 100% liability against the defendant for the highest amount of damages suggested by any juror." This affidavit was prepared by the defendant's counsel and mailed to the juror, who signed and returned it. This affidavit indicates that at least this juror knew who the offending juror was.

Should this misconduct result in a new trial? "It is not the misconduct of jurors alone which necessitates a new trial but...