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Palmer v. Jensen

May 29, 1997

PAMELA S. PALMER AND DELBART PALMER, WIFE AND HUSBAND; AND PAMELA S. PALMER, AS GUARDIAN AD LITEM FOR SHAWN MATTHEW PALMER, A MINOR, PETITIONERS,
v.
THOMAS JENSEN AND JANE DOE JENSEN, HUSBAND AND WIFE; AND TITUS-WILL FORD SALES, INC., A WASHINGTON CORPORATION, RESPONDENTS.



Appeal from Superior Court, Pierce County. 92-2-00558-7. Honorable Thomas A. Swayze Jr, Judge.

Authored by James M. Dolliver. Concurring: Barbara Durham, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Richard B. Sanders.

The opinion of the court was delivered by: Dolliver

En Banc

DOLLIVER, J.--In this personal injury action, Pamela Palmer asks us to reverse the trial court's denial of her motion for a new trial. Palmer argues the jury's verdict in an amount exactly equal to special damages is inadequate as a matter of law because the award necessarily failed to include damages for pain and suffering.

On January 30, 1990, Palmer was driving her Volkswagen Rabbit in Tacoma when the car was rear-ended by a Ford Aerostar mini-van driven by Thomas Jensen. Palmer's son Shawn, then aged three and one-half, was riding in the backseat restrained in his car seat. Palmer filed this action for personal injuries alleging general and special damages. A jury found Jensen to be negligent, but concluded Palmer was 25 percent contributorily negligent. The jury awarded Palmer and her son damages in amounts exactly equal to their special damages -- $8,414.89 and $34.00 respectively. The awards were then reduced to account for Palmer's contributory negligence.

Palmer took Shawn to the doctor on the day of the accident. Shawn's pediatrician diagnosed "Seat Belt Contusion" and did not prescribe further medical care. Ex. 8.

Palmer was examined by Dr. Lowell Finkleman the day after the accident. Dr. Finkleman diagnosed "ACUTE CERVICAL LUMBAR STRAIN OF MILD DEGREE" and prescribed physical therapy, pain medication, x-rays, and follow-up care. Clerk's Papers at 143. Palmer saw Dr. Finkleman and a physical therapist regularly until she and her family moved to Boise, Idaho, over a year later. She was treated by a doctor and physical therapist in Boise, each of whom believed her continued lower back problems were a likely result of the accident.

The total cost of Palmer's medical treatment was $8,414.89 -- the exact amount of the jury's verdict. Dr. Finkleman testified at trial that all of the special damages claimed by Palmer were reasonable and necessary. Both Dr. Finkleman and Palmer's physical therapist, Roger Russell, told the jury Palmer was experiencing pain from the accident while they were treating her. Medical records from Palmer's doctor and physical therapist in Boise state she continued to experience pain in her lower back over two years after the accident.

The defendant presented no evidence to refute these medical opinions. Instead, counsel for the defendant contended in closing argument that the evidence presented by the plaintiffs failed to prove Palmer was injured and, alternatively, that only a portion of the two and one-half year treatment was justified. The defense called only one witness -- the defendant Thomas Jensen. The defense retained an expert, Dr. Daniel Brzusek, but did not call Dr. Brzusek to testify because his testimony was not helpful to the defendant's case. The plaintiffs had wanted to call Dr. Brzusek to testify, but the court granted a defense motion to prohibit reference to the doctor.

After the jury returned its verdict, Palmer moved for a new trial, arguing the verdict was insufficient because it failed to include general damages. The trial court denied the motion and Palmer appealed. The Court of Appeals affirmed the trial court, reasoning it is not an abuse of discretion for a trial Judge to deny a new trial on the basis that the jury awarded only special damages. Palmer v. Jensen, 81 Wash. App. 148, 151-52, 913 P.2d 413 (1996).

I

After the jury returned its verdict, Palmer moved for an additur or alternatively a new trial pursuant to CR 59(a)(5), (7), (8), and (9). CR 59 allows the trial court to grant a new trial for the following causes:

(5) Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice;

(7) That there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, ...


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