Beard v. K-Mart Corp.

2000 UT App 285, 12 P.3d 1015, 406 Utah Adv. Rep. 3, 2000 Utah App. LEXIS 86, 2000 WL 1536088
CourtCourt of Appeals of Utah
DecidedOctober 19, 2000
Docket20000095-CA
StatusPublished
Cited by21 cases

This text of 2000 UT App 285 (Beard v. K-Mart Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beard v. K-Mart Corp., 2000 UT App 285, 12 P.3d 1015, 406 Utah Adv. Rep. 3, 2000 Utah App. LEXIS 86, 2000 WL 1536088 (Utah Ct. App. 2000).

Opinion

OPINION

BILLINGS, Judge:

[1 Defendant/appellant K-Mart Corporation (K-Mart) appeals the trial court's denial of its motion for a partial directed verdict. We reverse and remand for a new trial.

FACTS

1 2 On September 15, 1996, plaintiff/appel-lee Darlene Beard (Beard) was injured in a K-Mart store when a K-Mart employee struck her in the head with his elbow as he attempted to start a lawnmower. As she fell toward the floor, she felt a severe headache, as well as pain in her wrists, knee, and ankle. She visited her doctor the following day, complaining of head, neck, knee, and foot pain, and continued to have severe headaches, a sore neck, aching hands, and leg and foot pain. Beard saw a number of doctors and ultimately underwent a number of surgeries. Beard sued K-Mart for its employee's negligence in striking her. Three surgeries, performed on her neck and wrists by Dr. Robert Peterson, are at issue in this appeal. K-Mart asserts these surgeries are not causally connected to the accident at its store.

T3 At trial, Beard testified that her neck and wrist problems began when she was struck in the head at K-Mart. In addition, her family physician and her surgeon Dr. Peterson testified "there was a chronologic association for the. time of the incident [at K-Mart] to the time of the onset of symptoms." However, Dr. Peterson testified that he could not say to a degree of reasonable medical probability that the accident at K-Mart caused the need for either her neck or wrist surgeries.

T4 At the close of Beard's case, K-Mart moved for a partial directed verdict, arguing Beard had not presented sufficient evidence *1017 to permit the jury to find that her need for the neck and wrist surgeries was the proximate result of the injuries she had suffered at K-Mart. 1 The trial court denied K-Mart's motion, and the jury awarded Beard $431,290.22 in damages.

STANDARD OF REVIEW

T5 "When reviewing any challenge to a trial court's denial of a motion for directed verdict, we review '"the evidence and all reasonable inferences that may fairly be drawn therefrom in the light most favorable to the party moved against, and will sustain the denial if reasonable minds could disagree with the ground asserted for directing a verdict."'" Mahmood v. Ross, 1999 UT 104, ¶ 16, 990 P.2d 933 (quoting White v. Fox, 665 P.2d 1297, 1800 (Utah 1983) (quoting Cook Assocs., Inc. v. Warnick, 664 P.2d 1161, 1165 (Utah 1983))). If we conclude Beard did raise a material fact precluding judgment against her as a matter of law, we must affirm the trial court's denial of K-Mart's motion and uphold the jury's verdict. See id.

ANALYSIS

1 6 K-Mart argues Beard failed to present expert medical testimony establishing that her need for neck and wrist surgeries was caused by K-Mart's negligence. The essence of K-Mart's argument is that Beard's own testimony and the general testimony of her doctors that she did not suffer neck and wrist complaints before the injury at K-Mart is insufficient as a matter of law to allow the jury to consider whether these surgeries were a result of K-Mart's negligence. K-Mart argues that only expert medical testimony that the need for her surgeries was proximately caused by K-Mart's negligence will suffice. Thus, K-Mart argues the trial court erred in not directing a verdict in its favor and removing this evidence from the jury's consideration.

11 7 K-Mart relies on Denney v. St. Mark's Hospital, 21 Utah 2d 189, 442 P.2d 944 (1968), for the proposition that "if the expert evidence offered on the issue of medical causation is simply that a particular injury could have resulted from a particular accident, but not that it probably did, such testimony is insufficient for submission of the issue to the jury." In Denney, the plaintiff had undergone neck surgery and was having x-rays taken of her lumbar spine for unrelated treatment when a medical technician forcefully pushed her neck close to her knees, allegedly causing a feeling like an electric shock in the back of her neck. See Demney, 442 P.2d at 944-45. Two days later, she suffered a stroke. See id. More than four months later, the plaintiff told her neurologist that her neck had been forced forward during the spinal x-rays. See id. The following year, a spinal fusion was performed and a neck nerve severed to relieve pain. See id. The plaintiff alleged the x-ray technician's negligence was responsible for her ailments. See id. At trial, she testified as to the feeling in her neck when the technician pushed on it, and to continuing pain, numbness, and loss of vision after the incident. See id. Additionally, her neurologist testified that the force used by the technician could cause dise problems, but on cross-examination admitted it was a "medical probability" that her ailments were the result of the stroke. Id.

1 8 The Utah Supreme Court sustained the trial court's directed verdict in favor of the hospital. See id. at 946. The court stated:

in those cases which depend upon knowledge of the scientific effect of medicine, the results of surgery, or whether the attending physician exercised the ordinary care, skill and knowledge required of doctors in the community which he serves, must ordinarily be established by the testimony of physicians and surgeons.
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The only facts in the instant case which may be ascertained by the ordinary use of the senses of a lay witness are that the technician moved plaintiff's body, and that the back of her head hurt. No lay witness *1018 can by the ordinary use of his senses say that the complaints of the plaintiff, including the hurting in the back of her head, was caused by this claimed adjustment of her position on the x-ray table.

Id. (quoting Fredrickson v. Maw, 119 Utah 385, 387, 227 P.2d 772, 774 (1951)). The court concluded that the plaintiff's evidence did not show that her injuries were the result of the negligence of the technician. See id. at 947.

¶ 9 K-Mart also relies on Moore v. Denver & Rio Grande Western Railroad Company, 4 Utah 2d 255, 292 P.2d 849 (1956). In Moore, the plaintiff's doctor testified that "it was possible" that plaintiffs accident had caused a ruptured lumbar dise and nerve pressure. Id. at 850. The doctor estimated a five percent permanent disability "based in part on the predictability of exacerbation and remission of pain" over time. Id. The defendant moved to strike the doctor's testimony, arguing that "possibilities" were not probative, but the trial court denied the motion. Id. An instruction taking consideration of a ruptured dise from the jury on the basis that no competent evidence had been given on the matter was likewise refused by the trial court. See id.

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Bluebook (online)
2000 UT App 285, 12 P.3d 1015, 406 Utah Adv. Rep. 3, 2000 Utah App. LEXIS 86, 2000 WL 1536088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beard-v-k-mart-corp-utahctapp-2000.