Davis v. Graviss

672 S.W.2d 928, 50 A.L.R. 4th 1, 1984 Ky. LEXIS 241
CourtKentucky Supreme Court
DecidedMay 31, 1984
StatusPublished
Cited by84 cases

This text of 672 S.W.2d 928 (Davis v. Graviss) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Graviss, 672 S.W.2d 928, 50 A.L.R. 4th 1, 1984 Ky. LEXIS 241 (Ky. 1984).

Opinions

LEIBSON, Justice.

The issue is whether the Court of Appeals erred in setting aside the verdict in this case as excessive. From our review of the record we conclude that the evidence was sufficient to support the jury’s verdict and that the Court of Appeals’ standard for review was inappropriate. We reverse the Court of Appeals and affirm the verdict and judgment of the trial court.

It is difficult to summarize the evidence because there are two versions, both documented by the record depending upon how one views it. One view was expressed in the appellant’s brief and accepted by the jury and the trial court. A second view was expressed in the appellee’s brief and accepted by the Court of Appeals. As an appellate court reviewing the evidence to decide whether the verdict should be set aside as excessive, “our task is ... only to determine what are the most favorable conclusions the jury was authorized to draw.”

L & N Railroad Co. v. Mattingly, Ky., 339 S.W.2d 155, 160 (1960). Beatrice Foods Co. v. Chatham, Ky., 371 S.W.2d 17 (1963) states the rule thusly:

“(T)his court will not invade the jury’s province to weigh conflicting evidence, judge the credibility of witnesses and draw the ultimate conclusion.” 317 S.W.2d at 19.

Appellant’s claim arises out of a motor vehicle collision on December 1, 1978, in Jefferson County. It was an intersection collision between the car she was driving and appellee who approached from the opposite direction and made a left turn in front of her. She was taken injured from the scene and hospitalized for four (4) days. She was treated for a broken nose, dislodged teeth, contusions of the mouth, dizziness, disorientation and concussion. Subsequently following episodes of drainage of a clear, watery fluid from her nose, she was diagnosed as suffering from a basilar skull fracture or other injury causing leakage of cerebral spinal fluid through the cribriform plate.

A number of different doctors testified in the case, including two neurosurgeons, an ear, nose and throat specialist, a clinical psychologist, and a vocational expert. Their testimony establishes with reasonable probability1 that as a result of the accident plaintiff has a permanent defect in the base of her skull which will result in episodes of cerebral spinal fluid leakage of indeterminate frequency. This condition creates a potential for future complications from infection including meningitis, brain abscess or other neurological problems. In short, the injury is potentially devastating. One neurosurgeon has advised the appellant to undertake surgery as a preventive measure and one has advised such surgery is too difficult and dangerous, involving risks of death, blindness, paralysis, speech disturbances or seizures.

Appellee argues that the appellant is not entitled to compensation for the danger of [930]*930future complications, no matter how fearful the prospect, unless it can be shown that such complications will probably occur. While conceding the proof establishes the likelihood of future episodes of leakage of cerebral spinal fluid, appellee argues that proof of catastrophic complications is speculative. On the other side, appellant contends that the evidence is sufficient to establish the likelihood of such consequences, and further, that regardless of whether future devastating complications are a probability or a possibility, the increased likelihood of such complications is a certainty and is compensable in and of itself.

The Court of Appeals agreed with the appellee’s position. It decided to set aside the award because “Litten’s experts could only say she probably had spinal fluid leakage and she possibly could suffer further complications.” (Emphasis original) Court of Appeals, Slip Opinion, p. 6.

A duly qualified doctor of psychology, after appropriate testing, testified that as a direct result of the injury appellant suffers significant emotional and psychological damage. Realistically, she fears both the dangers of surgery and the likelihood of future serious illness should she not undertake surgery. Further, she so fears serious consequences from a reinjury to her nose that it frustrates her ability to conduct normal activities.

A duly qualified vocational guidance expert examined and tested the appellant as to future employability and impairment of earning capacity and concluded that she had experienced an “occupational loss” of approximately forty (40) percent.

The jury returned a verdict of $390,000. The trial court overruled the motion for new trial, which included appellee’s claim that the award should be set aside as excessive, and entered judgment on the verdict.2 Approximately $224,500 of the award was for mental and physical suffering, past and future, and $157,500 was for permanent impairment of earning power. The evidence underpinning most of this substantial award of general damages is the evidence of a permanent injury in the base of the skull causing episodes of cerebral spinal leakage, the potential for catastrophic complications, and the mental suffering . and impairment of normal living that attends her condition.

Thus the threshold question is the appellant’s right to compensation for an injury causing an increased risk of future harm and for mental suffering and impairment of earning power resulting from the fear caused by the increased risk of future harm. The psychologist testified that “her fears are reasonably understandable and are real,” and that “she will continually get worse, and there will be more anxiety and depression.” The vocational guidance specialist testified as to “occupational impairment” as a direct result of her fear, anxiety and depression. The question is whether damages of this nature are compensable as appellant contends or speculative as ap-pellee contends.

In Wilson v. Redken Laboratories, Inc., Ky., 562 S.W.2d 633 (1978), we reversed an opinion by the Court of Appeals setting aside a jury verdict of $30,000 for permanent damage to the plaintiff’s hair, a condition causing no physical pain and cosmetic in nature, stating:

“The uncontradicted evidence plainly demonstrates that Louise Wilson had a traumatic experience, and suffered humiliation and distress, which are phases of mental anguish.” 562 S.W.2d at 635.

In Murray v. Lawson, Ky., 441 S.W.2d 136 (1969), we affirmed the relevancy of evidence as proof of damages that the plaintiff had suffered a disabling “phobic reaction” to an injury from which she was otherwise fully recovered. Her doctor testified that he treated her for “anxiety neurosis” and a psychiatrist “testified that such phobic reaction is medically recognized and accepted as a psychiatric condition.” (Emphasis added). 441 S.W.2d at 137.

[931]*931In Deutsch v. Shein, Ky., 597 S.W.2d 141 (1980), we recognized plaintiff’s right to damages for mental suffering following a therapeutic abortion which she underwent voluntarily out of fear of future consequences to her unborn child.

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Bluebook (online)
672 S.W.2d 928, 50 A.L.R. 4th 1, 1984 Ky. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-graviss-ky-1984.