Tamplin v. Star Lumber & Supply Co.

824 P.2d 219, 16 Kan. App. 2d 352, 1991 Kan. App. LEXIS 1148
CourtCourt of Appeals of Kansas
DecidedDecember 31, 1991
DocketNo. 65,921
StatusPublished
Cited by4 cases

This text of 824 P.2d 219 (Tamplin v. Star Lumber & Supply Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tamplin v. Star Lumber & Supply Co., 824 P.2d 219, 16 Kan. App. 2d 352, 1991 Kan. App. LEXIS 1148 (kanctapp 1991).

Opinion

PlERRON, J.:

In a personal injury action tried to a jury, plaintiff was awarded $723,150.81, based on the negligence of defendant [353]*353Star 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 hér 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 Aim 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 [354]*354have 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).

[355]*355It 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, plaintiffs 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.

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Bluebook (online)
824 P.2d 219, 16 Kan. App. 2d 352, 1991 Kan. App. LEXIS 1148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tamplin-v-star-lumber-supply-co-kanctapp-1991.