1 Property damages were not invol

ved. 

# FILED
October 2, 1998 Cecil Crowson, Jr. Appe llate Court C lerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
LINDA ADKINS, ) CLAIBORNE CIRCUIT ) Plaintiff/Appell

ant ) NO. 03A01-9804-C V-00141 ) v. ) HON. CONRAD TROUTMAN ) JUDGE RICK KECK a

nd ) TORBETT AUTO SUPPLY, ) ) Defendants/Appellees ) AFFIRMED R. Jackson Rose, H

arrogate, for th

e Appellant. James D. Estep,

III, Tazewe

ll, for the Appell

ee, Rick Keck. David L. Hill, Knoxville, for the Appellee, Torbett Auto Supply, Inc.



### O P I N IO N INMAN, Senio

r Judge The plaintiff suffere

d an alleged whiplas

h injury on March 17, 1994 when her vehicle was struc

k from behind

by the vehicle operated by the defendant Kec

k, who was on the business of his co-defendant. The jury returned a verdic t for the plaintiff 1 for $9,340.00

and apportioned 15 percent of the fa ult to her, appare

ntly acceptingthe defendant Keck’s testimony that the

brake lights on the plaintiff’s car were inoperable. Her motion for a new tr

ial was denied, a

nd the plaintiff appe als. She presents for review these issues, which are reproduced verbatim: 1. The verdict of the jury i s a gainst the weight of the eviden ce as it is not supported by the evidence. 2. The entire amount of me dic a l bills, which wer

e filed with the Complaint and furnished to the defendant more than 90 days before2 W-2 Forms for 1991 through 1994 wer e filed i n evidence, whi

ch tended to pr

ove that i

n 1994 the plainti ff earned more t

han in 1993. She t

estif ied, when aske

d about her aver

age weekly earni

ngs, that she earned “sometimes five hundred dollar s a week,” based on production. No precis e evidence as to lost

wages was present

ed, and the j ury may have found her t estimony misl

eading. 2 the trial, should ha

ve been presented to the jury for their consideration. 3. The jury should not have bee n c harged “a sudden stop w ithout war ning will constitute negli gence if there is [ sic] no emergenc y i s shown to have justified it and is made

in disregard of the p

resence of vehicles following so

closely behind that the

operator of

this vehicle may be unable to sto p to avoid a collis ion.” 4. The jury should not have bee n charged “the oper

ator of a car behin

d itis not on the other hand under a duty to be prepared f or movements or changes which cou ld not be reasonabl y anticipated.” 5. The jury should not have bee n charged “that $2, 500.00 was the maximum on medical b ills.” 6. The jury [verdict] [si c] is flawed in tha

t it d id not provide for permanent impairm

ent even though that pro

of was unrebutted. 7. The jury verdi ct a s to lost wages is inad equate based on the uncontradicted proof presented in the case. 8. The trial Court shoul d have suggested an additur. In reviewing a judgment based on a j ury verdict we ar e not at liberty to weigh the evidence but are limited to a determ ination of whether there is material evidence to support the verdict , which requires

that we take the st

rongest legitimate view of

all the evidence in favor of the verdict, assum

e the truth of all thattends to support it, allow all reasonable inf

erences to sustain it

, and discard all to the contrary. Pullins v. Fentress Co unty Gen. Hospital, 594 S.W.2d 663 (Tenn. 1980). The plaintiff is a petit e lady, 39 years old a

t the time of the ac

cide nt. She
was referred

by her family physicia

n to Dr. J. Samue

l Marcy, an orthope

dic specialist, for treatment of a cervi cal spr ain. She was employed by a furniture
manu f acturer, and was off from w ork for four months, 2 undergoing therapy to correct cervica

l stiffness and pain.3 Dr. Marcy testified that the plaintiff ha d no significant cerv

ical spine muscle spas m but did have significant t enderness on palpatio

n, with a 15 - 20 per

cent limitation of motion. He delayed the plaintiff from returning to work sooner than she did owing to her petite size, because he

r job required that s

he pull 70 pounds
on occasion. Examin

ation revealed no neurologic defici t. He rated her

permanent impairment at five percent and described her injury as minor. Dr. Marcy’s charges for treatment of the plaintiff wer

e $330.00. His

fee for testifying by deposition

was $650.00. The verdictwas separated by the jury, whichallowed $2,500.00 for medical expenses, $3,840.00 for

lost wages, and $3,000.00 for pain and suffering. The trial judge declined a request for additur. LOST WAGES ISSUE The plaintiff ar g ues that she earned $ 500.00 per week and that she lost 17 weeks’ work. Hence,

she says, the award of $3,48 0.00 is inadequate
. She testified that“sometimes” she earned $500.00 per we ek, a nd the documentation revealed thatduring the year of the ac cident she ea rned more than during the prior year. The issue of credibility was probably more pronounced than in the ordinary case, and we cannot say that the jury’s award is not supported by material evidence.

MEDICAL EXPENSES ISSUE The p l aintiff alleged tha

t she incurred medical expenses with no it emization. She filed illegible copi

es of certain expe

nses as a collective exhibit to her
c omplaint, but offered no furt her proof therein,

or of the necessity o r reasonableness

of such expenses, ot

her than the testimon

y of Dr. Marcy con cerning his charges of $330.0

0. T.C.A. § 24-5-113(a)(1) pr ovides that the itemiz

atio n or e xhibition of the medical expenses shall be pri ma facie evidence

that they were nec

essary and4

reasonable, but this pre s umption does not apply to e xpenses in excess of $2,500.00. The trial judg e instru cted the jury that the maximum allowable expenses
were $2,500.00, apparently finding that section (b)(1) was inapplicable. Th is section provides that in addition to the proce dures described in se

ction (a)(1), if

an itemization

of or copi es of the expenses are served 9 0 days prior to trial , a rebuttable

presumption that such expenses are re asonab le is created. No itemization

or copies were s erved, a nd the plaintiff made no request for instructions regarding a presum ption applicable to a

n y amount in excess of $2,500.00. In point of fact, t he jury heard no evide nce concerning medi cal expenses other than the testim ony of Dr. Marcy; t he plaintiff testif ied that she “incurred a lot of medical expen ses andbills,” and was not further questioned about this element of her

damages. In a very real sense, the trial judge came to her
rescue when he instructed t

he jury that the awa

rd of medical expenses was limited to $2,500.00. THE INSTRUCTIONS The plaintiff complains that the jury should not have been instructed that “a sudden stop with o ut warning will cons titute negligence if

there is [sic] no emergency is shown to have justifi ed it and is made in disregard of the presence of vehicles following so closely behind that the operator of t h is vehicle may be unableto stop to avoid

a collision,” and tha

t “the operator of a

car behind it is not
on the other hand under a dutyto be prepared for movements or changes which could not be reason ably anticipated.” The plaintiff argues that no eviden ce was p resented that she created an emergenc y, and thus there was no evidentiary basis for these instructions. We cannot agree. The defendant testified thatthe plaintiff stopped suddenly, without5

warning, that the brake lights on her automobile were inoperable, and that he was unableto stop in time. At any rate, it was within the peculiar province of the jury to determine the

truth of the matter

from a prepondera

nce of all the evide

nce, and the fact that the jury a

llocated 15 percent

of the fault to the pl

aintiff bespeaks the

ir consideration of the issue.

THE ISSUE OF PERMANENT IMPAIRMENT The jury allowed no recover y for permanent impairment, and the appellant argues that this omission militates against the verdict, since the testimony of Dr. Marcy that she retaine d a five percent impairm ent was unrefuted. Dr. Marcy testified th

at the injury was a m

inor one; that it runs i

ts cours e withtreatment and exercise and re turn to work. The jur y had the benefit of observing the p l aintiff and evaluating her testimony against the depositional testimonyof Dr. Marcy, wh ose d e minimis evaluation of impair

ment should be considered in conjunction wi th all of the eviden ce. See, Clinchfield R.R. Co. v. Forbes, 417 S.W.2d 210 (Tenn. 19 66). THE ADDITUR ISSUE This Court does not have the authorityto grant an additur . T.C.A. § 20-10- 101. We review the action of the tri al court in suggesting a

n additur pursuant to Tennessee Rule of Appellate Procedure 13(d); T.C.A. § 20-10-1 01(b) (2). The standard of review

for this court is whe

ther the amount awa

rded by the

jury falls bel ow the range of reasonabl eness. Smith v. Shelton, 569 S.W.2d 421 (Te nn . 1978). We find that, in this ca se, the jury’s verdict was wi thin th e “range of reasonableness,” and therefore, t h e tri al court did not abuse i ts discretion in declining to suggest additur.6 The judgment of the trial court is affirmed in all respects, with costs assessed to the appellant.

_______________________________ William H. Inma

n, Senior Judge
CONCUR:

_______________________________ Houston M. Goddard, Presiding Judge

_______________________________ Don T. McMurra

y, Judge