# FILED
October 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) ALLEN W. LAWRENCE , ) Tipton County Circuit Court ) No. 4544 Plaintiff/Appellee. ) ) VS. ) C.A. No. 02A01-9801-CV-00020 ) TOWN OF BRIGHTON , ) ) Defendant/Appe

llant, ) ) AND ) ) GLENDA CHANDLER a s Natural ) Parent and Guard

ian and Next Friend ) on Behalf of JAMES M. CHAN DLER , ) a Minor Child and Individually, in her ) own right , ) ) Plaintiff/Appellee, ) ) VS. ) ) TOWN OF BRIGHTON , ) ) Defendant/Appe

llant. )

______________________________________________________________________________ From the Circuit Court of Tipton County at Covington. Honorable Joseph H. Walker, III, Judge

John D. Burleson , Jeffery G. Foster , RAINEY, KIZER, BUTL ER, REVIERE & BELL, P.L .C., Jackson, Tennessee Attorneys f

or Defendant/Ap

pellant.
J. Houston Gordon , Covington, Tennessee Attorney fo

r Plaintiffs/Appe

llees.

OPINION FIL

ED: AFFIRMED AS M

ODIFIED AND REMA

NDED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)1 Lawrence’s complaint was filed on June 20, 1996. His death occurred thereaf ter on January 18, 1 997. When a party entitled to relief

dies while an acti

on for personal in

juries is pending, the party’s claim does not abate but becomes an action for the benefit of the deceased party’s estate. See Tenn. Code Ann. § 20-5-112 (1994). The procedural steps for substitution of parties in such cases are outlined in Rule 25 of the Tennessee Rules of Civil Procedure. See T.R.C.P. 25.01(1). Our review of the record reveals that Thelma Lawrenc e, Lawrence’s mother, was appointed as the administrator of his estate. It further reveals that counsel for L awrence and Chandler understood that Lawrence’s claim was being broug ht on behalf of his estate. It does not appear, however, that any of the steps enumerated in Rule 25 have been taken to make Lawrence’ s estate a party to this lawsuit. Bec

ause no issue has b

een raised on ap

peal with respect to substitution of parties, we make no finding regarding this matter. I. Factual and Proced

ural History

On May 22, 1996, a collision occurred between a vehicle drive n by Allen W. Lawrence and a vehicle driven by Richar d Drumwright, an employee of the Town of Brighton. Lawrence’s sister Glenda Chandler and Chandler’s three year old son Jam es M. Chandler were passengers in the Lawrence vehicle.

Following the accident, Lawrence received treatment at Tipton County Hospitalfor
a cut on his forehead. Two days later, Lawren ce was treated by Dr. Reuben Avila for neck pain, tenderness

of the abdomen, tenderness over the cut on his forehead, s catte red lacerations, a large bruise on his left shoulder, and bruising on hi s forehead and u nder his left eye . Dr. Avila recommended

that Lawrence t

ake over-the-c

ounter pain

medication. Lawrence visited Dr. Avila on two subsequent occasions for persisting headaches and n eck p ain. Dr. Avila recommended that Lawrence unde rgo outp atient physical therapy. After receiving a report from Lawrence’s mother that Lawrence was experiencing numbness in his left leg, Dr. Avila referred

Lawrence to Dr. Lance Wright, a neurologist. Dr . Wright prescri

bed various medic

ati on s for pain relief and ordered phys ical ther apy. During a subsequent visit to Dr. Avila, Lawrence complained of knee pain and decreased sensation in his left leg. Dr. Avila referred Lawrence to Dr. Jim Harkness who ordered continued physical t

herapy a nd nerve blocks to relieve Lawrence’s pain. On January 18, 1997, Lawrence died as a result of a heart attack. 1 At the time of his death, Lawrence was laid off from his job as a full time production worker or packaging operator at Coors Brewing Company.

Glenda Chandler was also examined at the Tipton Coun ty Hos pital following the accident. An emergency ro om physician presc

ribed muscle rela

xants and pain medication for deep2 The orders dismissing Drumwright and striking the jury demands wer e entered pursuant to the Tennessee

Governmental Tor

t Liability Act. The releva

nt provisions of this a

ct provide in pertinent part a

s follows: No claim may

be brought ag

ainst an employ

ee or judgment e

ntered agains

t an employee

for damages fo

r which the immunity

of the governme

ntal entity is removed by this chapter unless the claim is one for medical malpractice broug ht against a health care practitioner. Tenn. Code Ann. § 29-20-310(b) (Supp. 1998). The circuit courts shall have exclusive original jurisdiction over any action brought under this chapter and shall hear and decide such suits without the intervention of a jury, except as otherwise provided in § 29-20-313(b). Tenn. Code Ann. § 29-20-307 (Supp. 1998).

3 The award to the m

inor child is not an is sue on appeal. cuts on Chandler’s left arm and hand and a possible partial dislocation of her left elbow. Two days after the accident, Chandler was examined by Dr. Phillip Wright, an orthopedic sur geon, who recommended

that Chandler wear

a sling for support and a splint or supporting brace on her forearm and wrist to ease disc

omfort. During a se

cond visit with Dr. W

right, Chandler

complained of pai

n in her knees. Dr. Wright recommended physical therapy. When, during a

follow up visit, Chandler complainedthat the discomfort in her elbow and knees had worsened, Dr. W right gave her

some samples of anti-inflammatory medication. Chandler also saw Dr. Cro ckarell, a neurologist, for persisting headaches. Dr. Crockarell advised Chandler to take Advil as needed for pain.

Lawrence and Chandler each

filed a complaint against Drumwright and the Town of Brighton. By consent, Drumwright was dismissed from

both actions. Consent orders were entered in both actions granting the Town of Brighton’s motions to strike the jury demands of Lawrence and Chandler. 2

The actions of Lawrence and Chandler were consolidated for purposes of

trial. The partie s stipulated that the collision was the r

esult of negligenc

e on the part of Dr

umwright while driving a vehicle owned b y the Town of Bright

on. Thus, the sole

issue at trial was the extent of the damages suffered by Lawrence, Chandler, and Chandler’s minor son. 3 The trial judge assessed the damages of Lawr

ence and Chandle

r as follows:
Damages of Allen W. Lawrence:Medical Services $10,268.40 Travel $320.60 Loss of Earning Ca

pacity $23,000.00 Pain and Suffering $21,500.00 Loss of the Ability to Enjoy Life $17,500.00 TOTAL: $72,589.00
Damages of Glenda Chandler:

Medical Services $4,577.75 Travel $252.00 Child Care $217.00 Past Pain and Suffering $10,500.00 Future Pain and Suffering $8,900.00 Permanent Impairment-Disfigurement $28,000.00 Past and Future Loss of the Ability to Enjoy Life $17,500.00 TOTAL: $69,946.75
The Town of Brighton appeals the trial court’s ruling in both causes of action.

The issues prese

nted on appeal ar

e as follows:

I. Did the trial court err in awarding Lawrence $ 23,0 00 for loss of earning capacity? II. Is the award of

$21,500 to

Lawrence for pain and suffering excessive? III. Did the trial court err in awardingLawrence and Chandler $17,500 each for loss of ability to enjoy life? IV. Is the award

of $28,000 to Chandler for permanent impairment-disfigurement excessive? V. Are the awards to Chandler of $10,500 for past pain and suffering and $8,900 for future pain and suffering excessive?

As an initial matter, we note that the issues raised on appeal all relate t o the trial court’s assessment of the damages suffered by Lawrence and Chandler as a re

sult of the negligence of Drumwright. Under Tennessee law, there are no mathematical r

ules for computing

damages in negligence cases. See Brown v. Null, 863 S.W.2d 425, 429-30 (Tenn. App. 199 3); Smith v. Bullington, 499 S.W.2d 649, 661 ( Tenn. App. 1973); Clinchfield R.R. Co. v. Forbes, 417 S.W.2d210, 217 (Tenn. App. 19 66); Templeton v. Quarles, 374 S.W.2d 65 4, 660 (Tenn. App. 1963);

France v. Newman, 248 S.W.2d 392, 396 (Te nn. App. 1952). The

amount to be awar

ded in such
cases is primarily within the discretion of the trier of fact. See Brown, 863 S .W.2d at 43 0(citing Lunn v. Ealy, 141 S.W.2d 893, 894 ( Tenn. 1940); Shell Oil Co. v. Blanks , 330 S.W.2d 569, 573 (Tenn. App. 1959)). Accordingly, we may not substitute our judgment for the judgment of the trial court regarding the am

ount of damages un

less there has be

en an abuse

of discretion. See Dixie Feed & Seed Co. v. Byrd, 376 S.W.2d 745, 754 (Tenn. App. 1963). Consistent with these principles, our review in the instant case

is de novo on the record, accompanied by a presumption of correctness of the findings of the court below . Thus, we may only reverse the trial court’s findings if they are contrary to the preponderance of the evidence. See T.R.A .P. 13(d); Smith, 499 S.W.2d at 661(discussing Tenn. Code Ann. § 27-303 (Supp. 1977), whichhas been incorporated into T.R.A.P. 13(d)).

II. Award to Lawrence for Loss of Earning Capa city

In an action for

personal injury in

Tennessee, a pla

intiff may recove

r damages for los s of earning capacity. See Marress v. Carolina Direct Furniture, Inc., 785 S.W.2d 121, 123 (Tenn. App. 1989); Clinchfield R.R. Co., 417 S.W.2d at 215; Southern Coach Lines, Inc. v. Wilson, 214 S.W.2d 55, 56 (Tenn. App. 1948). Damages for l ost earning c apacity are measured not by the amount of the plaintiff’ s lost wages but by th e extent of impair

ment to the plaintiff’s a

bility to earn
a living. See Terminex Int’l Co. Ltd. Partnership v. Tennessee Ins. Guar. Ass’n, 845 S.W.2d 772, 777 (Tenn. App. 1992); Dingus v. Cain, 406 S.W.2d 169, 171 ( Tenn. App. 1966); Clinchfield R.R. Co., 417 S.W.2d at 215; Dixie Feed & Seed Co., 376 S.W.2d at 749; Southern Coach Lines, Inc., 214 S.W.2d at 56. Thus, a plaintiff may recover damages for lost earning capacity even where the plaintiff was unemployed at the time of the injury. See Southern Coach Lines, Inc., 214 S.W.2d at 57. In determining the extent of a plaintiff’s loss of earning capacity,

it is pr oper to take into consideration plaintiff’s age, and in l ik e manner, attention may be br ought t o his health, character, capacity, ability to work, intell

i gence, skill, talents, experience, training, and industry. In addition, it is pro per to consider pl

aintiff’s habits,

a nd other personal qualities. Other matters to be considered are plaintiff’s surroundings,

record of employment, an d stati on in life, his expectancy of

life, his occupat

ion, business

or profession, the effectof the injury thereon, the value of his services, avenues of occupation open to him, and the physical ca pacity of plaintiff to perf orm his work at the time he was injured and thereafter.

Marra ss, 785 S.W.2d at 123-2 4; Clinchfield R.R. Co., 417 S.W.2d at 215; 25 C.J.S. Dama ges § 87(b) (1966). The role of the trier of fact is to consider all evidence re garding these

and other relevant factors, giving proper weight to each item of proof as it deems appropriate. See Clinchfield R.R. Co., 417 S.W.2d at 215.

In the instant case, Lawrence had been employed by Coors Brewing Compa ny as a full time production worker or packaging operator since May 13, 1985. Lawrence was laid off from this position on October 9, 1995, some seven months prior to the accident. Coors recalled a group of employees that would have included Lawrence on May 27, 1997. Lawrence had died, however,
on January 18, 1997. Had he beenliving, Lawrence’s wage after being recalled would have been $17.25 per hour.

There was ample testimon y upon which the tri

a l judge could have made a determin ation regarding the physical capabilities of Lawrence as they existed both prior to and following the accident. According to Lawrence’s m edical records , he had a history of high blood pressure and migraines but had no other physical problems prior to the accident. Lawrence’s mother testified that, pr ior to hi s injuries, Lawrence engaged in a variety of activities, including the following: raising dogs, running and playing with children, cooking, cleaning, shopping, taking care of the yard, and lifting weights. She further testified that, after the a

ccident, Lawre

nce was unable to engage in these

activities because of pain. Lawrence’s brother confirmed his mothe

r’s statements regarding Lawrence’s ab

ility to do yardwork, go shopping, and wrestle with children and added that “[a]fter the accident, yo

u took a person tha

t was a bull

withthe strength of an

ox and you made him down to a mouse with no strength at all. ” He further ad ded that Lawrenc

e was no longer ab

le to drive when they would go t o Memphis on shopping

trips. Finally, a fa

mily friend te st ified that, before the accident, Lawrence was a “pretty stout man” that led a “pretty physical life.” He added that, after the accident, Lawrence was not as physical and had a lack of stamina.

T he Town of Brighton takes the position that, because no expert testimony wa spresented

specifically addressing the issue of lost earningcapacity, the trial court should have found that Lawrence did not sustain such a loss. While

expert testimony is often helpful in determining the extent of

a plaintiff’s loss of earning capacity, it is not a prerequisite to recovery. See Marress, 785 S.W.2d at 124 (finding that lay testimony regarding plaintiff’s ordinary pursuits before and after accident was sufficient to show that plaintiff sustained a loss of earning capacity). The Town of Brighton further argues

that Lawrence i

s notentitled to recover for lost earning capacity because he didnot sustain a perma

nent impairment.

We hav e previously state d, however, that t

he principle underlying recovery for lost earning capacity is the same whether the impairment is permanent or only temporary. See Dingus, 406 S.W.2d at 171; Southern Coach Lines, Inc., 214 S.W.2d at 56.

The undisputed testimony in the instantcase reveals th at Lawrence wa

s physically unable to engage in many of the acti vities that he enjoy

ed prior his injurie

s. Based on this

testimony, it appears likely that, had Lawrence been employed following the accide nt, his phy sical injuries would have at least impa

ired his work per

formance. The t

ria l judge concluded that Lawrence suffered a $23,000 loss of earning capacity. We find that the evidence does not preponde rate against thi s conclusion. Thus, we uphold the trial court’s ruling with respect to Lawrence’s lost earning capacity.

III. Award to Lawrence for Pain and Suffering

The trial judge awar

ded Lawrence $

21,500 as compensa

ti on fo r his pain and suffering. The Town of Brighto n contends that, be

cause Lawrenc

e’s injuries hea

led over time, this amount is excessive.

There is a substantial amo unt o f evidence in the record regarding the pain experienced by Lawrence during the eight months that he lived following the accident. In the days immediately after the accident, Lawrence experienced tenderness of his abdomen and forehead and felt pain from various cuts and bruises. He also suffered from neck pain and burning sensations in his left leg and hip. His neck and leg would hurt when he tried to remove big pots and pans from the oven. He

also felt pain in his leg when he attempted to pick up or play with children. The pain in his left leg was
so intense that he was no longer able to sleep in a bed because he might roll over onto his leftside.Finally, Lawrence developed pain in his left knee and experienced numbness in his left thigh.

In light of the aforementioned proof, we find t hat a judgm ent in the amount of $21,500 for Lawrence’s pain and suffering is neither excessive nor contrary t o th e preponderance of the evidence. Accordingly, we uphold the trial court’s ruling with respect to the damages awarded to Lawrence for pain and suffering.

IV. Awards to Lawrence and Chandler for Loss of Ability to Enjoy Life

The trial court awar

ded $17,500 to both L

awrence and Cha

ndler for loss

of the ability to enjoy life. The Town of Brighton first contends that damages for loss of enjoyment of life are not recoverable

in personal in

jury cases under Tennessee law. Alternatively, the Town of Brighton argues that, even if this

type of damages is recognized in Tennessee, the awards granted by the trial court to both Lawrence and Chandler were excessive.

In support of its argument, the Town of Brighton relies princ ipally on the case of Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938 (Tenn. 1994). In Spencer , the Tennessee Supreme Court held that hedon ic damage s are not recove rable under Ten

nessee’s wrongf

ul death statute. See id. at 943-44. The Spencer court understood the phrase “hedonic damages” to refer to “the value of the plea

sure, the satisfa

ction or the utility

that human beings derive from life, separ ate and apart from labor or earnings value of life.” Id. at 939. Under this d efinition, “hedon

ic damages”
are similar to damages for loss of enjoyment of life. Nevertheless, we find that, because the holding in Spencer relied on statutor y interpretation,

it is limited in scope t

o wrongful death actions and thus is not directly applicable to the case at bar.

The Town of Brighton argues that the holding in Spencer was extended to other types of actions in the case of Miller v. Niblack, 942 S.W.2d 533 (Tenn. App. 1996). In Miller, we held that a mother and her

nonmarital child could not recover hedonic damages against a laboratory that negligently

performed a paternity test on the child’s putative father. See id. at 542. Unlike the court in Spencer , however, we understood the plaintiff’s request for “hedonic damages” to be essentially
a claim for loss of the parent-child relationship. See id. at 542 n.6. Miller , then, is not a true “lossof

enjoyment of life” case. Thus, we find that the holding of Miller is inapplicable to the case at bar.

Tennessee courts have historically recognized loss of enjoyment of life as a distinct category of damages in

personal injury cases. See Thompson v. National R.R. Passenger Corp., 621 F.2d 814, 842 (6th Cir. 1980)(applying Tennessee law in personal injury action). In the recent
c ase of Livingston v. Upper Cumberland Human Resource Agency, No. 01-A-01-9609-CV-00391, 1997 WL 107059 (Tenn. App. Mar. 12, 1997), we upheld a damage award for loss of enjoyment of life where, as a result of the plaintiff’s injuri

es, he could no long

er engage in ath

letic activities to

the
sameextent

as before his accident. See id. at *2. In Martin v. Southern Ry. Co., 463 S.W.2d 690 (Tenn. 1971), the court upheld a jury award in a personal injury action after assuming that a portion of the award was for intangible damages including “deprivation of the normal enjoyments of life.” Id. at 691. Finally, in Dixie Feed & Seed Co. v. Byrd, 376 S.W.2d 745 (Tenn. App. 1963), also an act ion for personal injuries, the court stated that it did not know the value that the jury may have placed on intangible elements of damage such as “deprivation of the enjoyment of the normal activities of life.” Id. at 753.

Based on the above authority, we find that damages for loss of enjoyment of life are recoverable

in personal injury cases under Tennessee law. We now consider whether the awards for loss of enjoyment of life to Lawrence and Chandler in the instant case are excessive.

Following the accident, La wrence could no

t engage in

a number of activities without experiencing increased pain. He could no longer raise or care for his dogs. Similarly, he was not able to cook or help his mother with normal household chores. Lawrence c ould not play with children as he had in the past. He could no longer e ngage i n exercises such as lifting weights, running, and jumping. He could not help his brother with yard work or drive a car to Memphis when he and his brother we

nt shopping togethe

r. Finally, he expe

rienced diffic

ulties sleeping an

d, because lying in bed was uncomfortable, was forced to sleep in a recliner.

The trial court was presented with ample evidence upon which it could have found that Lawrence experienc ed a signific ant loss in the abilit y to enjoy life as a

result of the acc

ident. We cannot find that the evidence preponderates aga inst the tri al court’s ruling w ith respect toLawrence’s loss of enjoyment of life. Further,

we do not find that,

under the circum

stances of this case, an award of $17,500 for the loss incurred by Lawrence is excessive.

Our review of the rec ord r eveals that Chandler’s activities were also somewhat limited as a result of

the accident. According to Chandler, it was “a good two months” following the accident

before she was able to go about her normal activities again. Specifically, Chandler had difficulty lifting and otherwise taking care of her two children for approximately one to two weeks. She also was unable to sleep on her right side without waking up wi th a headache. Fi

nally, there is
someevidence indicating that she would turn down invitations to “go do s omet hing” with her brother because she wa

s in pain. The rec

ord also indicate

s, however, that t

hese li mitations on Chandler’s activities lasted only for a brief period of time. Chandler eventually regained a full range of motion in her finge

rs, wrist, and for

earm. Although she

still is not able

to fully straighten out her left elbow, Chandler s

tated that she is no

w able to perform all of the activities using her left arm and knees that she was able to perform prior to the accident.

The trial court awarded damages to Chandler for loss of enjoyment of life in an amount equal to those awarded to Lawrence for the same type of damages. We agree that Chandler didexperience some loss of enjoyment of life as a result of her injuries. Fro m our review of the record, however, we

do not find that her damages are even remotely comparable to those suffered by Lawrence. Accordingly, we conclude that the preponderance of the evidence is contrary to the trial court’s implicit finding thatChandler suff ered a loss of enj oyment of life equ al to the loss suffered by Lawrence. In light of this conclusion, we have determined that the preponderance of the evi dence doe s not support an award to Chandler of $17,500 for her loss of enjoyment of life. Accordingly, we modify the trial court’s judgment to award her the sum of $10,000.

V. Award to Chandler for P ermanent Impairment-D isfigurement

Chandler was also awarded $28,000 in damages as compensation for the permanent injuries that she suffered as a result of the accident. The most significant of these injuries appears to be a permanent te

n degree loss

of range of motion in Chandler’s left elbow. Dr. Wright estimated that a ten degree loss

of motion of the elb

ow is equivalent to

a one percent impairment of the entireperson. The trial judge observed th at Chandler is not a

ble to completely stra

ighten out her lef

t arm, leaving it in a permanently crooked position.

In additio n to he r elbow injury, Chandler has permanent

scarring on her wrist, arm, left leg, and right knee as a result of the accident. These

scars were also observed by the trial judge.

Chandler testified that she has regained use of her left arm and is now able to use the
arm in the same manner as before the accident. The Town of Brighton contends that, because the injury to Chandler’s elbow does not limit her activities, she has not suffered an impairmen t si gnificant

enough to justify an award of $28,000. We find, however, that even if the damage t o Chandler’s elbow and the scars onvarious parts of her body do not limit her physical activities, they nevertheless

constitute a significant impairment to her appearance. The trial judge assessed the damages for

Chandler’s permanent impairment-disfigurement at $28,000. We cannot find that the preponderance

of the evidence is contrary to this assessment. Thus, we upho ld the trial court’s ruling regarding the amount of damages for Chandler’s injuries.
V. Award to Chandler for P ain and Suffering
Finally, the trial court awarded Chandler a total of $19,400 for past and futur e pain and sufferin g. While glass was being removed from Chandler’s hands and arms, Chandler experienced so

much pain that she began screaming. She experience d muscle strain an

d tightness in her shoulder. Chandler also suffered dull headaches and tenderness each time she tried to sleep
on her le ft side. For a period of time aft er the accident

, Chandler’s knee

s ached on a daily

basis. Chandler described this pa

in as a sensati

on of pins a

nd needles in her knees. Chandler’s brother testified that whe

n Chandler’s knee

s would pop, she would “do a big moan.” Although the injury to Chandler’s knees has been successfully treated with medication, she conti nues to have aching pains in her elbow and wrist approximately twice a week. Additionally, Chandler continues to take over-the-counter medications to relieve her occasional headache pain.

Based on our review of t he aforemention

ed testi mon y, we agree that Chandler is entitled to compensation fo r the pain and suff

ering that she exp

erienced and wi

ll c ontinue to experience as

a result of the accident. The trial court awarded Chandler $10,500 for past pain andsuffering and $8,900 for future pain and suffering. The evidence in the instant case does not

pre ponderate

against the amount

of these awards . Accordingly, we uphold the trial co

urt’ s assessment of damages for Chandler’s pain and suffering.

VI. Conclusion
We find that the trial court did not err in awarding $23,000 to Lawrencefor loss of earning capacity or

in awarding $17,500 to Lawrence for loss of ability to enjoy life. We further find that the $21,500 award to Lawrence for pain and suff ering, the $28,000 award to Chandler for per manent

impairment-disfigurement, and the $19,400 award to Chandler for pain and suffer in g
were not excessive. The judgment of the trial court in favor of Chandler of $17,500 for loss of ability to enjoy life is modified to a judgment in the amount of $10,000.

The judgment of t he trial court is affirmed as modified and remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to the Town of Brighton, for which execution may issue if necessary.

____________________________________ FARMER, J.

______________________________ HIGHERS, J. (Concu

rs)

______________________________ LILLARD, J. (Conc

urs)