Bowers v. Sprouse

Present: Carrico, C.J., Compton, Stephenson, 1 Lacy,
Hassell, Keenan, and Koontz, JJ.

CANDACE L. BOWERS
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 961985 October 31, 1997

BARBARA A. SPROUSE

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge

In this appeal of a judgment entered in a personal

injury action, we consider whether a plaintiff, who received

a jury verdict for the exact amount of her medical and other

special damages, is entitled to a new trial.
Candace L. Bowers filed her motion for judgment against

Barbara A. Sprouse, seeking compensation for injuries she

received in an automobile accident. Before trial, Sprouse

admitted liability, and the case was tried before a jury on

the issue of damages only.

The plaintiff adduced the following evidence. The

plaintiff, who was driving her car, stopped and "was just

waiting for traffic to move" when she noticed the

defendant's car. The defendant's car collided into the rear

of the plaintiff's car. Upon impact, the plaintiff was

"flung forward and the seatbelt grabbed [her] and yanked

[her] backwards."

The plaintiff immediately felt pain, and she was taken

to a hospital. She was treated at the hospital's emergency

1
Justice Stephenson participated in the hearing and
decision of this case prior to the effective date of his
retirement on July 1, 1997.
room and was released that same day. The plaintiff was

treated by her family physician two or three days after the

accident, and he referred her to Dr. John M. Simpson, an

orthopedic surgeon. The plaintiff introduced in evidence,

without objection, a "Statement of Damages" in the amount of

$2,479.85. Dr. Simpson testified that the plaintiff had

experienced lower back pain as a result of a prior accident,

and that her injury was exacerbated as a result of her

accident with the defendant.
The defendant vigorously cross-examined the plaintiff

about her injuries. For example, the defendant elicited on

cross-examination that: the plaintiff had complained of

lower back pain after she was injured in a prior accident;

the plaintiff did not recall an incident in January 1989

which required her to seek treatment from a physician for

lower back pain; the plaintiff did not recall an incident in

1990 when she fell down some steps and injured her back; and

the plaintiff did not remember an incident in 1993 when she

injured her back while "line dancing."

The jury considered the evidence and returned a verdict

in favor of the plaintiff for the exact amount of her

medical expenses and special damages. The trial court

denied the plaintiff's motion to set aside the verdict and

entered a judgment confirming the jury's verdict. The

plaintiff appeals.

In Rome v. Kelly Springfield Tire Co., 217 Va. 943, 234
S.E.2d 277 (1977), we considered whether a trial court erred
in failing to set aside a jury verdict which was for the

exact amount of the plaintiff's lost wages and medical

expenses. We stated:
"The verdict of the jury fixed [the plaintiff's]
damages at . . . the exact amount of [the
plaintiff's] lost wages and medical expenses to
the date of trial as shown by the uncontroverted
evidence. The trial court's damage instruction
set forth seven elements of damage which the jury
should have considered in fixing its award. The
jury's award appears to represent only two of
those seven elements. Substantial evidence was
introduced in support of the other elements of
damage mentioned in the instruction, viz., past
and future physical pain and mental anguish,
disfigurement and deformity, past and future
inconvenience, future medical expenses, and the
effect of such injuries upon [the plaintiff's]
health. The verdict is therefore inadequate and
invalid as a matter of law because it demonstrates
the jury has disregarded the instruction on
damages. Obviously, the jury has failed to take
into consideration all of the proper elements of
damages to which the plaintiff was entitled under
the evidence."

Id. at 948, 234 S.E.2d 281.

Both the plaintiff and defendant cite Rome in support

of their respective positions. 2 Essentially, the plaintiff

argues that the trial court erred by failing to set aside

the jury's verdict and award her a new trial because, she

says, the jury's award is inadequate as a matter of law.

The plaintiff contends that Rome is controlling because the
jury awarded her the exact amount of her damages, and the

2
The plaintiff and the defendant cite other authorities
which, they say, support their respective positions.
Because of our view of this case, we decline to undertake an
exhaustive discussion of those authorities. Moreover, we
have discussed most of those authorities in DeWald v. King,
233 Va. 140, 354 S.E.2d 60 (1987).
defendant did not present any testimony which contradicted

the plaintiff's evidence of damages. The defendant responds

that the plaintiff's evidence of special damages was

contested throughout the trial, that a reasonable jury could

have believed that the plaintiff exaggerated the extent of

her injuries, and that it was highly unlikely that the

plaintiff's injuries resulted from a minor traffic accident.

We are of opinion that the jury's verdict for the exact

amount of the plaintiff's medical and special damages is

inadequate as a matter of law. The jury's verdict for the

exact amount of the plaintiff's medical expenses and special

damages indicates that although the jury found the plaintiff

was injured and had incurred special damages, the jury, for

whatever reason, failed to compensate her for any other

items of damage. Certainly, at a minimum, this plaintiff

experienced pain, suffering, and inconvenience as a result

of the defendant's negligence and was entitled to
3
compensation for these elements of damage.
3
The jury was instructed as follows:

"INSTRUCTION NO. 7

You must find your verdict for the plaintiff,
and in determining the damages to which she is
entitled, you may consider any of the following
which you believe by the greater weight of the
evidence was caused by the negligence of the
defendant:

(1) any bodily injuries she sustained and
their effect on her health according to their
degree and probable duration;

(2) any physical pain and mental anguish she
suffered in the past;
 Therefore, we hold that a jury award in a personal

injury action which compensates a plaintiff for the exact

amount of the plaintiff's medical expenses and other special

damages is inadequate as a matter of law, irrespective of

whether those damages were controverted.

Accordingly, we will reverse the judgment of the trial

court and award the plaintiff a new trial on the issue of

damages only.
Reversed and remanded.

JUSTICE LACY, dissenting.

I dissent from both the rule adopted and the result

reached by the majority.

I. The Rule

For over half a century, assertions that the amount of

a jury verdict in a personal injury case is inadequate as a

matter of law have been subject to the following principle:
[T]he verdict of a jury in personal injury cases
will not be set aside as inadequate or excessive
unless it is made to appear that the jury has been
actuated by prejudice, partiality or corruption,

(3) any disfigurement or deformity and any
associated humiliation or embarrassment;

(4) any inconvenience caused in the past;

(5) any medical expenses incurred in the
past;

(6) any earnings she lost because she was
unable to work at her calling;

Your verdict should be for such sum as will
fully and fairly compensate the plaintiff for the
damages sustained as a result of the defendant's
negligence."
 or that it has been misled by some mistaken view
of the merits of the case.
. . . .
Each case must be considered on its own merits and
in view of the peculiar facts of that case.

Glass v. David Pender Grocery Co., 174 Va. 196, 201, 5

S.E.2d 478, 480-81 (1939). This general principle has been

applied to cases like the instant case in which the amounts

of the jury verdict and of the special damages were

identical or very close. In those cases, the plaintiff

argued that the verdict was inadequate as a matter of law

because the size of the verdict showed that the jury ignored

the court's instruction to consider all the elements of

recovery, specifically pain, suffering, and inconvenience.
In Bradner v. Mitchell, 234 Va. 483, 362 S.E.2d 718

(1987), the seminal case on this aspect of inadequate jury

verdicts, the Court compared cases in which the jury

verdicts were held inadequate as a matter of law, Glass v.

David Pender Grocery Co., supra; DeWald v. King, 233 Va.

140, 354 S.E.2d 60 (1987); and Rome v. Kelly Springfield,
217 Va. 943, 234 S.E.2d 277 (1977), with cases in which the

jury verdicts were not set aside as inadequate, May v.

Leach, 220 Va. 472, 260 S.E.2d 456 (1979); Brown v.

Huddleston, 213 Va. 146, 191 S.E.2d 234 (1972); and Doe v.

West, 222 Va. 440, 281 S.E.2d 850 (1981). The Court in

Bradner announced that the distinction between the two lines

of cases, "lies in the differing quality of the plaintiff's

evidence of special damages." 234 Va. at 487, 362 S.E.2d at

720. Bradner concluded that verdicts should be set aside as
inadequate as a matter of law, not because of the proximity

between the amount of the verdict and the special damages

claimed, but because the plaintiff's evidence of special

damages was uncontroverted and complete, and, therefore,

could not rationally be ignored or disregarded by the fact

finder. The rationale for this rule, as explained in

Bradner, was that such uncontroverted evidence became a

fixed part of the recovery amount and, if the remaining

amount of the award was insufficient to compensate the

victim for other elements of damage also established by the

evidence, such as pain and suffering, the verdict amount was

of necessity inadequate. Id.

Bradner went on to instruct that jury verdicts should

not be set aside as inadequate where the plaintiffs'

evidence of special damages was "controverted, doubtful as

to nature and extent, or subject to substantial question

whether attributable to the defendant's wrong or to some

other cause." Id., 362 S.E.2d at 720-21. The Court

reasoned that in such cases the the fact finder could

conclude that the plaintiff was entitled to less than the

amount claimed as special damages and, thus, the amount of

the special damages cannot become a fixed part of the

recovery amount. Because the trial court cannot determine

what amount was awarded for other proven damages, such as

pain and suffering, the verdict cannot be held to be

inadequate as a matter of law. Id. at 487-88, 362 S.E.2d at

721.
 Today, the majority discards this body of jurisprudence

for a per se rule. As stated by the majority, jury verdicts

which are identical to the amount claimed by the plaintiff

as special damages are inadequate as a matter of law,

"irrespective of whether those damages were controverted." 4

The majority adopts this new rule without reference to, or

rationale for departing from, the principles established in

our prior cases. Nor does the majority indicate why the

rationale of Bradner underlying its focus on the quality of
the evidence is not applicable in these circumstances, or

what rationale compels the adoption of the new rule.

Perhaps the majority relies on a common sense belief

that a jury verdict in an amount identical to the amount of

the special damages means in all cases that the jury agreed

that the defendant caused injury to the plaintiff, but is

only willing to give the plaintiff the amount needed to

cover his or her out-of-pocket expenses. Thus, under the

majority's common sense interpretation, the jury improperly

compromised the verdict, ignoring the plaintiff's pain,

suffering, and other non-quantified damages.

Common sense tells me, however, that when there is

evidence controverting the cause of the injuries, the extent

of the injuries, or otherwise challenging the special

damages, the failure to award more than the special damage

4
I assume that the majority intends that its new rule
also requires that both special and general damages were
proven by the plaintiff.
amount does not mean that the jury ignored general damage

evidence such as pain and suffering. Rather, it means that

the evidence raised questions in the minds of the members of

the jury as to whether all the injuries claimed were caused

by the defendant's acts or whether the injuries were as

severe as the plaintiff claimed. In such a case, even

though the verdict is exactly equal to the special damages,

the amount was intended to cover both the compensable

special damages and general damages. In other words, the

existence of controverting evidence is the key to whether

the jury acted properly or produced a verdict based on an

erroneous understanding of the law or the instructions. In

my opinion, common sense does not provide any persuasive

basis for adopting the majority's per se rule.
Perhaps the majority's rationale for establishing a

"bright line" rule is that it will resolve confusion and

produce consistency in these cases. Again, I do not find

this rationale persuasive. First, neither the trial courts

nor the practicing bar are confused as to the principles to

be applied in considering challenges to jury verdicts under

these circumstances. As set out above, the relevant

principles have been operating for over 50 years and, for at

least the last decade, the existence of controverting

evidence has unequivocally been the touchstone in

determining whether a jury verdict is inadequate in these

cases. As so often happens in the practice of law, the

difficulty is not in identifying the applicable legal
principle, but in applying that principle to the facts at

hand. Trial courts daily evaluate the evidence in ruling on

motions and are uniquely positioned to make those rulings.

For that reason, on appellate review we afford those

decisions significant deference. See Smithey v. Sinclair

Refining Co., 203 Va. 142, 148, 122 S.E.2d 872, 877 (1961).

Thus, I do not think the adoption of the majority's rule

can be justified because of confusion over the proper

principles to be applied or any perceived inadequacy in the

ability of trial courts to make these determinations.
As for consistency, every personal injury case is

unique, both in its circumstances and in the evidence

produced by both sides to support competing interpretations

of the facts. Under our legal system, the desired

consistency is in properly applying the correct principles,

not in the results attained. Thus, the goal of eliminating

confusion and seeking consistency in results, in my opinion,

does not justify the action of the majority today.

A third rationale for the majority's rule could be to

facilitate the disposition of these cases. In other words,

a per se or bright line rule would make trying these cases
more efficient. Assuming juries will be instructed that

they may not return a verdict in the exact amount of the

plaintiff's special damages, the rule would eliminate

putting the parties to the time and expense of litigating

whether the verdict was inadequate and calling a new jury to

relitigate the damage issue in circumstances where the trial
court determined post trial that the verdict was inadequate.

However, if the rule is justified based on facilitating the

process surrounding claims of inadequate jury verdicts, the

practical effect of the rule in this regard is severely

limited.

Even if juries are instructed that they may not return

a verdict in the exact amount of the special damages, as I

believe they must be, juries will continue to return

verdicts in amounts close to the amount of special damages.

The rule announced by the majority, by its terms, will not

apply to these close, but not identical, jury verdicts, and

trial courts will continue to resolve claims of inadequate

verdicts by applying the traditional principles as set out

in Bradner.
In summary, I cannot agree to adopt a per se or bright

line rule which has no jurisprudential foundation, stated or

perceived, is not needed to resolve confusion or
5
inconsistency, and will have limited application.
II. The Result

I also dissent from the result reached in this case.

5
Apparently, the majority's new rule is unique. While
many states follow the principle of Bradner, that
uncontroverted evidence of proven special damages becomes a
fixed part of the verdict, none appears to have adopted a
rule that a verdict equal to the special damages is per se
inadequate "irrespective" of whether there was controverting
evidence, as the majority does today. See generally Todd R.
Smyth, Annotation, Validity of Verdict Awarding Medical
Expenses to Personal Injury Plaintiff, but Failing to Award
Damages for Pain and Suffering, 55 A.L.R. 4th 186, §§ 1-4
(1987 & Supp. 1997).
First, I believe the principles of Bradner control the

analysis of the case. Furthermore, the trial court

exercises its discretion in determining whether the amount

of a jury verdict is inadequate as a matter of law. Philip

Morris Inc. v. Emerson, 235 Va. 380, 413, 368 S.E.2d 268,

286 (1988). On appeal, the judgment of the trial court is

reversed only upon a determination that the trial court

abused its discretion. Johnson v. Smith, 241 Va. 396, 400,

403 S.E.2d 685, 687 (1991). Applying these principles, I

would affirm.
As recognized by the majority, the record shows that

the defendant aggressively cross-examined the plaintiff's

witnesses in order to challenge the plaintiff's assertion

that all of her injuries resulted from the rear-end

collision. In addition to the evidence recited in the

majority opinion, the defendant introduced the original

treatment notes of plaintiff's physician which indicated

that she had suffered a back injury in a previous accident

involving a truck, that the injury had not been completely

resolved, and that the instant collision aggravated that

injury. The defendant also introduced evidence to show that

the force of the collision was minimal, that there was no

discernable damage to plaintiff's car, and that no medical

treatment was undertaken at the scene of the collision.

Finally, the plaintiff admitted that, subsequent to the

collision, she was a passenger in an all-terrain vehicle

which flipped over. This evidence can only be considered as
evidence controverting the plaintiff's claim that all her

injuries were caused by the rear-end collision.

The trial judge, in refusing to set aside the verdict

as inadequate, stated that the jury could have concluded

that, in the plaintiff's fall from the all-terrain vehicle,

she could have hurt other parts of her body, including the

injury involved in this case, and thus, the jury "could have

not attributed all the damages to this accident and

attributed the rest to pain and suffering."
The trial court, following the instruction of Bradner,

reviewed the evidence in the case to determine whether the

plaintiff's evidence of special damages was uncontroverted

and determined that it was not. Thus, the trial court

concluded that the amount of special damages had not become

a fixed part of the recovery. Accordingly, the trial court

held that the verdict was not inadequate as a matter of law.

Based on this record, I cannot conclude that the trial

court abused its discretion in denying the plaintiff's

motion to set aside the jury verdict as inadequate and,

therefore, I would affirm the judgment of the trial court.