1 Mrs. Stiffler suffers from rheumatoid art hritis and has

had both knees and hips replaced. In 1990, Mrs. Stiffler had her right hip jo int remo ved as w ell.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON June 20, 2001 Session VANN R. STIFFLER, ET AL 

### . v. THE KROGER COMPANY Direct Appeal from the Circuit Court for Shelby County No. 76434 T.D. George H. Brown, Jr., Judge

No. W2000-02200-COA-R3-CV - Filed August 16, 2001

This is a premise liability action arising from an incident wherein Mrs. Stiffler was struck in the back by shopping carts, knocked to the floor, and sustained injuries as a result of thefall. At trial, the jury awarded Mrs. Stiffler $75,000 and awarded $5,000 to Mr. Stiffler on his loss of consortiu

m claim. Kroger file d a mot ion to set aside the verdict, for a new trial, or, alternatively, for remittitur. The trial court denie

d Kroger’s motio

n, and this appeal

ensued. We affir

m. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed;

and Remanded
D AVID R. F ARMER , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S. and A LAN E. H IGHERS , J., joined. Betty Ann Milligan and Mildred L. Sabbatini, Memphis, Tennessee, for the appellan t, The Kroger Company.
R. Linley Richter, Jr., Memphis, Tennessee, for the appellees, Vann R. Stiffler and Donald

Stiffler. OPINION
On the afternoon of

June 10, 1995, Vann Sti ffler (Mrs. Stiff

ler) and her husb

and, Don ald Stiffler (Mr. Stiffler) went

to Kroger to

do their weekly

grocery shopping. Mr. Stif

fler helped Mrs. Stiffler out of the car and then went ahead of Mrs. Stiffler into the store to do their

banking. Mrs. Stiffler, who was using two crutches due to her existing medical condition, 1 entered the store, stopped, and made a half turn to her left to see where Mr. Stiffler was in line at the bank. As Mrs. Stiffler looked toward the bank, she was bumped in the back by a store employee

who was guiding shopping carts into the store. She was then struck in the back by the shopping carts which caused-2-

Mrs. Stiffler to fall fa

ce first to the g

round. She was una

ble to break her fall o

r catch herself

as she hit the floor. An ambulance wa s summoned, and Mrs.

Stiffler was tran

sported to Baptist

Hospital East where she remained fo r approximately six hours. As a result

of the fall, the sk

in on Mrs. Stiffler’s left hand peeled back, and she had a laceration ab

ove her right e

yebrow. She

also suffered from tenderness and

muscle spasms in her neck, a mild concussion, and multiple, severe contusions of the facial area, both elbows, both hands, and both knees. Mrs. Stiffler was temporarily disabled a s a result of her injuries incurred in the fall from June 10, 1995 to August 24, 1995. She ha s permanent scars on her left hand and over her right ey ebrow. Approximately

one to two months after being released from the trea tment of her traum

a doctor, Mrs. Stiffler began to develop headaches which would last anywhere

from a few hours

to all day. These headaches continued for approximately two years after her fall. The Stifflers brought an action against The Kroger Company

(Kroger) based on the theories of premise liabil

ity and loss of consortium. This matter was tried before a jury, and at the trial’s conclusion, the jury

awarded Mrs. Stiffler a verdict of $75,000 and Mr. Stiffler a verdict of $5,000 for his loss of cons ortium claim. Kroger filed a motion to set aside the verdict, for a new trial, or alternatively, for remittitur. The trial court denied Kroger’ s motion, and this appeal followed. Kroger presents the following issues, as we perceive them, for this court’s review : 1. Whether

the damages awarded by the jury were

so excessive as to in

dicate caprice, passion, andprej udi ce on part of t he j ury, and whether the damages awarded were above the range of reasonableness of verdicts which a f air and impartial jury could have returned.
2. Whether

the trial court erred in failing to grant Kroger’s motion to set aside the verdict, for a new trial, or alternatively, for remittitur. 3. Whether the trial court erred in failing to grant remittitur.
On appeal, where an assignment of erro r rela tes to the excessiveness of a jury verdict, our duty is to review the proo f o f damage. I f we find the dama

ges to be excessiv

e, it is our duty

to reducethem, but, when the trial judge h as approved the v

erdict, our review is to determine if there is any material

evidence to

support the award. As this court stated in Overstreet v. Shoney’s, Inc. , 4 S.W.3d 694, 718 (Tenn. Ct. App. 1999)(internal citations omitted), when a trial court app

roves a jury

verdict, appella

te courts may only review the reco rd to determine whether it contains material evidence to support the j ury’ s verdict. Appellate courts do not re wei gh the evidence and consider where the preponderance

lies. Instead, they determine whether ther e is any material evidence to support the verd

ict, and, if there

is, they must a

ffirm the judgme

nt.-3-

See also Tenn. R. App. P. 13(d). We will suggest a remittitur when the verdict appears excessive, considering the nature and extent of the injuries, suffering, expense, dim inu tio n of earn ing c apac ity, andthe amount of damages aw arded in similar cases. See Long v. Mattingly , 817 S.W.2d 325 (Tenn. Ct. App. 1991).
In the instant case, Mrs. Stiffler suffered, inter alia , multiple, severe contusions, lacerations on her f ace and left hand, and a mild concussion. She was designated by her trauma doctor to be temporarily

disabled from June 10, 1995 to August 24, 1995. As a result of her fa ll, she incurred medical expenses of $3,110.08. During the time Mrs. Stiffler was disabled, Mr. Stiffler had to take careof the household as well as hold down his job as a con struction supervisor. Although we determine the jury’s award to be on the high-end of the rang e of reasonableness, we do not find it to be the result of

passion, prejudice, or

caprice. Because the trial judge approved the verdict, and because we do not find the jury ’s award to be the result of passion, prejud

ice, or caprice

, we must affirm the award of $75,000 to Mrs. Stiffler and $5,000 to Mr. Stiffler. As we have found that the jury award was rea

sonable, we also

find that the trial court did not err in failing to grant Kroger’s motion for a new trial or in failing to grant Kroger a remittitur. Accordingly, we hereby

affirm the jury award in all respects. Costs on appeal are ta xed to the appellant, The Kroger Company, and its surety , for which execution may issue if necessary

.

___________________________________ DAVID R. FARMER, JUDGE