# FILED

June 4, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

SARAH BETH CLINGAN OVERSTREET, ) ) Plaintiff/Appellee, ) ) Putnam Circuit VS. ) No. J-5125 ) ) Appeal No. SHONEY’S, INC., ) 01A01-9612-CV-00566 ) Defendant/Appel

lant. )

APPEAL FROM THE CIRCUIT COURT FOR PUTNAM COUNTY

AT COOKEVILLE, TENNESSEE THE HONORABLE JOHN TURNBULL, JUDGE

For the Plaintiff/Appellee : For the Defendant /Appellant : John K. Maddin, Jr. Lawrence E.Levine Malcolm L. McCu

ne Levine Mattson Or r & Geracioti Maddin Miller & McC

une Nashville, Tennessee Nashville, Tennessee Jim H. Camp William A. Cam

eron Sparta, Tennessee Cameron & Chaffi

n Cookeville, Tennessee



## AFFIRMED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE 

## O P I N I O N-2- This appeal involves a freakish accident in which a shardfrom a broken dinner plate caused a res

taurant patron to lose

the sight in her left eye . The patron and her husband filed suit against the

waitress who

dropped the

plate and the resta

urant in the Circuit Court for Putnam C

ounty seeking damages f

or her injuries and f

or his loss of consortium. Following a

three-day trial, the jury awarded the patron $2 ,013,000. On this appeal, the restaurant takes issue with several of the tri al court ’s evidentiary rulings, the trial court’s ve rdict form, and th

e trial court’s refusal to grant a remittitur. We affirm the jud

gment.

I.

Sarah Beth Clingan Overs treet received he

r graduate nursi

ng de gree from Tennessee Technological Uni versity in Cookeville in May 1993. One month later, she went to work for C ookeville General

Hospital. Becau se of her profess ors' encouragement,

Ms. Overstreet plann

ed to pursue an advanc

ed nursing degree. She was also engaged to be married and had set an October 1993 wedding date.

On July 22, 1993, Ms. Overstreet and her fiancee decided to eat a late supper atthe Shoney ’s Restaurant on Willow Road in Cookeville. Approximately fifteen feet from where Ms. Overstreet was seated, a server, who wa s serving other customers, held an iced teapitcher in one hand an d a serving tray wit

h two ceramic dinnerplates in the other.The server plac ed the pitcher on the lid of a partially open ice bin. As the pitcher

began to fall

from the ice bin, t

he server grabbed f

or it, and in the process, the two d

inner plates fell

from her tray and

broke on the floor. A shard from one of the broken plates struck Ms. Overstreet in her left eye.

Ms. Overstreet hear

d the plates fall and imm

ediately“felt something hot in my lefteye.” At first she thought it might be a piece of food or he r contact lens, but when she saw blood on hernapkin and her white blouse, she knew she had bee n cut. The wound was ver

y painful, and Ms. Overstre et went into shock. She was treated initiallyin the emergency room at Cookeville General Hospital where it was discovered that the

shard had cut her eye

and that vitreous gel w

as protruding from the wound. Ms. Over

street was quickly

transferred to Vanderbilt University Hospital where surgeons closed the la ceration. She remained hospitalized for several days on a regimen of antibio

tics.-3- The Vanderbilt physicians feared that the retina of Ms. Overstreet’s left eye would become detached and cause blindness in that eye. When the retina eventually detached , Ms. Ov erstreet underw ent four additional su

rgeries in an attem

pt to stabilize her retina and save the sight in her left eye. The scar tissue that formed after each surgery prevented t

he retina from re

maining in

its normal positi on. The fourth surgery was an experiment al procedure in whi

ch silicon oil was inj ected directly into the eye throug h tiny incisions. Ms. O verstreet experi

enced significant pa

in and discomfortduring the five-month period when these surgeries w ere beingperformed. She also suffered psychologically as her ability to see through h er left eye gradua

lly deteriorated. As she described it, “[t]he last time that I saw anything was a little bitty pinhole of light in motion and it kept getting smaller and sma ller and then there wasn’t any more.”

In March 1994, Ms. Overstreet underwent a fifth surgical procedure to relie ve her pain and headaches and the irr itation in her eye. The physician rem oved the experimental silicon oil and scraped calcium deposits from her cornea. Today, Ms. Overstreet

is blind in her left eye. Her left eye also looks abnormal because it is red and irritated and because it is noticeably smaller than her right eye.

The injury to Ms. Over

street’s eye aff

ects not only hervision but also her life. Her loss of vision dealt a tremendous blow to her self-confidence and to her perception

of herself. Ms. Overstreet ’s psychologist diagnose d her as suffering

from post-traumatic

stress syndrome. For her

part, Ms. Over

street stated that s

he no longer likes herself

and that she

has changed from an

outgoing, strong, and

confident person to someone who does not want to leave the house. She has night mares, sleep disorders, crying spells, and poor concentration and low self-esteem.

Ms. Overstreet has continued to work as a nurse; h owever, her cli

nical skills
an d outlook for further education and profes sional advancement h ave dwindle d

. While at one time she

excelled at clinical care, she now finds it difficult to

perform
even the most basic proc edures. She has difficulty m easuring medicines or giving intravenous injections because o f her loss of depth pe

rception. Sh e also becomes fatigued when she inputs clinical information into the computer. She

now works the nights hift because it is less busy than the day shift and she has declined offer s t o transfer to more acute car

e areas because o

f her concern that

one of her errors might hurt a patient. An expert rehabil itative counselor

has determined that Ms. Overstreet-4-

is vocationally disabled

in light of the physical and emoti onal requirements o

f nursing. As a result of the injury to and disfigurement of her eye, Ms. Overstreet has changed from

an accomplished, m

otivated, and confi

dent person whose pro spects seemed endless to a p

erson who is thankful just to get through anothe r day.

In January 1994, Ms. Overstr eet and her husband f

iled a negligence action in the Circuit Court for

Putnam County against

Shoney’s and the server who dropped the dishes. Prior to tr

ial, Ms. Overst

reet's husband also v

oluntarily dism

iss ed his claims against both Shoney’s a nd the server becau se he was not married to Ms. Overstreet

when she was injured. Ms. Overstreet likewise voluntaril

y dismissed her claims against the server. Following a three-day trial in March 1996, a jury returned a verdict against Shoney’s for $2,013,000. Shoney’s perfected this appeal after the trial court denied its motion for a new trial and/or a remittitur.

II. T HE S UFFICIENCY OF M S . O VERSTREET ’ S P LEADINGS
Shoney’s first seeks to

under mine the verdict by a ttacking the suffici

ency of Ms. Overstreet’s pleadings. It asserts that i t could not be held resp onsible for the negligent acts of its server

because Ms. Over

street’s complaint did not specifically allegethe doctrine of res pondeat superior. S honey’s reasons that Ms. Ove rstreet’s decision to dismiss her claims against its server had the legal effect of undermining her claims against Shoney’s . This argument is without merit because Shoney’s stipulated that the se

rver was acting w

ithin thescope of her employm ent when Ms. Overstreet

was injured and that

any negligence on t

he part of

the server was chargeable to Shone

y’s.
A stipulation is an agr

eement between c

ounsel regarding business before the court, see State v. Ford

, 725 S.W.2d 689, 691 (Ten n. Crim. App. 1986) , which is entered into mutually and voluntarily by t he parties. See State v. Morris , 641 S.W.2d 883, 889 (Tenn. 1982). A stipulation obviates the need for evidenc

e regarding the stipulated matters. See Hunter v. Burke , 958 S.W.2d 751, 755 (Tenn. Ct. App. 1997). Although the parties may not s

tipulate to questions

of law, see Mast

Adver. & Publ'

g, Inc. v. Moyers , 865 S.W.2d 900, 902 (Tenn. 1993), sti

pulations within the

range of possibly true facts and

valid legal strateg ies are allowed. See Mast Adver. & Publ'g, Inc. v. Moyers , 865 S.W.2d at 902.-5- A stip ulation regarding an agent acting within the scope of his or h e r employment

may be based on a party’s admissi ons of fact. See Steiner-Liff Iron and Metal Co. v. Woodmont C

ountry Club , 480 S.W.2d 533, 537 (Ten n. 1972). On appeal, stipulations are b inding on the part ies and may not be alt ered. See Bearman

v. Camatsos , 215 Tenn. 231, 236, 385 S.W.2d 91, 93 (1964); First Southern Trust Co. v. Sowell , 683 S.W.2d 680, 681 (Tenn. Ct. App. 1984).

In this case, Shoney’s stipulated first at a pre-trial conference and then at trial thatits server w as acting within the scope of her employment with Shoney’s when Ms. Overstreet was injured an d that the server’s negligenc e, if any, could be attributable

to Shoney’s under the theory of respondea t superior. This issue was established by the server’s undisputed testimony and was included in the i

nstruction to the jury without objec tion from Shoney’ s. Relying on this stipulation, Ms

. Overstreet

voluntarily non-suited her c laim a gainst the server.After agreeing to stipulate this issue at trial,

Shoney’s cannot n

ow co mplain that Ms. Overstreet’s pleadings are defic

ient.

III. T HE T RIAL C OURT ’ S E VIDENTIARY R ULINGS
Shoney’s takes issue

with two of the trial cou rt’s evidentiary rul ings. First, it asserts that the trial court should not have permitt ed Ms. Overstre

et to prese nt evidence concerning her plans to pu rsue an advanced nur sing degree. Sec

ond, it argues that the trial court

erred by preventing it from

cross-examining Ms. Overstreet concerning

the results of an evaluation performed when she w as an extern at Cookeville General Hospital between her second and third years of nursing scho ol. We find no error w

ith the trial court’ s decisions on both issues

.
O ne of the t rial court’s essen tial responsibilities

is to control the flow

of evidence to the jury by

ruling on the admissibility of evidence, controlling the order of the proof, and dete

rmining the scope of e

xamination of the wi

tnesses. See Castelli

v. Lien , 910 S.W.2d 420, 425 ( Tenn. Ct. App.1995). A trial cou rt has a wide degree of latitude in making the se decisions. Se e Hunter v. Bu rke , 958 S.W.2d at 75 5; Steele v. Ft. Sanders Anesthesia G roup, Inc. , 897 S.W.2d 270, 275 (Tenn. Ct. A

pp. 1994). Accordingly, ques tions concerning the a

dmissibility of evidenc

e address themselves to the trial court’s discretion, an d the appellate courts w ill overturn the-6-

trial court’s decisions onl y on a showing of abu se of discr etion. See Otis v. CambridgeMut. Fi re Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992); Scott v. Jones Bros. Constr., Inc. , 960 S.W.2d 589, 594 (Ten n. Ct. App. 1997).
Objections to the introduction of evidence must be timely and specific. They must be made contempora

neously with the objectionab le testimony, see Burchett v. Stephens , 794 S.W.2d 745, 749 (Tenn. Ct. App. 1990); Wachovia Bank & Tr ust Co.

v. Glass , 575 S.W.2d 950, 955 (Tenn. Ct. App . 1978), and they mus t state the specific groundon which they are based. See Continental Nat’l Bank v. First Nat’l Bank , 108 Tenn. 374, 379, 68 S.W. 497, 498-99 (1902); Burton v. Farmers’ Bldg. & Loan Ass’n , 104 Tenn. 414, 418,

58 S.W. 230, 231 (1900). Therefore, they cannot be raised for the first time on appeal. See Street Ry. v . Dan , 102 Tenn. 320, 321-22, 52 S.W. 177, 178 (1899); Horner v. Graham , 64 S.W. 316, 318 (Tenn. Chan . App. 1901).

A. A DMISSION OF E VIDENCE C ONCERNING M S . O VERSTREET ’ S C AREER P LANS

Over Shoney’s’ objec tions, the trial cou rt permitted Ms. O

verstreet t o introduc e evidence regarding her plans to obtain an advanced nursing degree and to become certified as a regi stered nur se anesthetist. Sh oney’s asserts that a

dmitting this evidence was error becau se the damages flow ing from Ms. Overstreet ’s inability to
earn an advanced degree were speculative and because the admi ss ion of this testimonymust have been preju dicial in l ight of the jury’s dec ision to award Ms. Overstreet $100,000 for lost earning capa city.

1.

The purpose of tort damages in Anglo-Amer ican l aw is to compensate the wronged party for damage or injury caused by th e defendant’s condu ct. See Inland Container

Corp. v. March , 529 S.W.2d 43, 44 (Tenn. 1975); Louisville, Nashville & Great Southern R.R. v

. Guinan , 79 Tenn. 98, 103 (1883) ; Vertrees v. Ten nessee Auto Corp. , 5 Tenn. App. 140,

151 (1927). The goal o

f awarding

damages is to repai

r the wronged party’s injury or, at least, to make the wronged party whole as nearly as may be done by an award of mon ey. See Restatement (Second) o f Torts § 901, cmt. a (1979); 4 Fowler V. Harp er, et a l., The Law of Torts

§ 25.1, at 493 (2d ed.

1986) (“Harper”).-7- The party seeking damages has the burden of pr oving them

. See Inman v. Union Planters Nat’l Bank , 634 S.W.2d 270, 272 (Tenn. Ct. App. 1982). In tort cases, t he proof of

damages need not be ex act or mathematically precise. See Provident Life & Accident I

ns. Co. v. Globe

Indem. Co. , 156 Te nn. 571, 576, 3 S.W.2d 1057, 1058 (1928); Airline Constr. Inc. v. Barr , 807 S.W.2d 247, 274 (Tenn. Ct. App. 1990). Rathe

r, the proof must be

as certain as the nature of the case

permits and must enable the trie

r of fact to make a

fair and reasona

ble assessment of the damages. See Pinson & Assocs. Ins. Agency, Inc. v. Kreal , 800 S.W.2d 486, 488 (Tenn. Ct. App. 1990); Wilson v. Farmers Chem. Ass’n , 60 Tenn. App. 102, 111, 444 S.W.2d 185, 189 (1969). The amount of dama ges is not controlled by

fixed rules of law, see Blalock v. Temple , 38 Tenn. App. 463, 470, 276 S.W.2d 493 , 497 (1954), or mathematical formulas. See Brown v. Null , 863 S.W.2d 425,

429-30 (Tenn. Ct. App

. 1993). It is instead left to t he sound discreti on of the trier of fact. See Reeves v. Catignani , 157 Tenn. 173, 176, 7 S.W.2d 38, 39-40 (1928); Sholodge Franchi se Sys., Inc. v. McKibbon Bros., Inc. , 919 S.W.2d 36, 42 (Tenn. Ct. Ap p. 1995).
Damages may never be based o n mere conjecture

or speculation. See Western Sizzlin, Inc. v. Harris , 741 S.W.2d 334, 335-36 (Tenn. Ct. App. 1987); Nashland Assocs. v. Shumate , 730 S.W.2d 332, 334 (Tenn. Ct. App . 1987). Howeve r, uncertain
or speculat ive damages are pr ohibited only when the e xistence, not the am

ount, of damages is uncertain. See Jennings v. Hayes , 787 S.W.2d 1, 3 (Tenn. Ct. App. 1989); Cummins v. Brodie , 667 S.W.2d 759, 765 (Tenn. Ct. App. 1983). Evidence required to support a claim for damages need only pro ve the amount of damages with
reason able certainty. See Airline Constr. , Inc. v. Barr , 807 S.W.2d at 27

4; Redbud Coop. Corp. v. Cl

ayton , 700 S.W.2d 551, 561 (Tenn. Ct. App. 1985).

Loss or i mpairment

of future earning capacity is an eleme nt of damages in a personal injury action. See Wolfe v. Vau ghn , 177 Tenn. 678, 687, 152 S.W.2d 631, 635 (1941); Acuff v. Vinsant , 59 Tenn. App. 727, 733, 443 S.W. 2d 669, 672 (1969). Earning capacity refers

not to actual earnings,

but rather to the ea

rnings that a person is capable of making. See Southern Coach Lines v . Wilson , 31 Tenn. App. 240, 243, 214 S.W.2d 55, 56 (19

48) (earning capac

ity refers to

the loss of the power to earn);

see also Anderson v. Lit zenberg , 694 A.2d 150, 161 (Md. Ct. Spec. App. 1997); Restatement (Second) of Torts § 924(b) (1979).1 Damages for impairment of earning capacity may be awarded for either perman en t or temporary impairments. See Dingus v. Cain , 56 Tenn. App. 294, 297, 406 S.W.2d 169, 171 (1966); Southern Coach Lines v. Wilson , 31 Tenn. App. at 243, 214 S .W.2d at 56. If the impairment is temporar y, the multiplier should be the duration of the actual impairment rather than the i njure d person’s work life expectancy. -8- The extent

of an injured person’s loss of earning capacity is generally arrived atby comparing

what the person would have bee n capable of earni

ng but for the injury with what the person is capable of ea rning after the inju ry. See Hunter v. Hardnett , 405 S.E.2d 286, 2 88 (Ga. Ct. App. 1991); LaFever v. Kem lite Co. , 706 N.E.2d 441, 455 (Ill. 1998) ; Bergquist v. Mackay

Engines, Inc. , 538 N.W.2d 655, 659 (Iowa Ct. App. 1995); Wal-Mart Stores v. Cordova , 856 S.W.2d 768, 770 (Tex. Ct. App. 1 993) ; Klink v. Cappelli , 508 N.W.2d 435, 437 (Wis. Ct. App. 1993); Restatement

(Second) of Tort

s § 924 cmt. d (1979).If the injury is permanent, 1 this amount should be multiplied by th e injured person’s w

ork life expect ancy, and the result should be discou nted to its present value. See Conte v. Flo ta Mercante Del Estado , 27 7 F.2d 664, 669 (2d Cir. 1960); Athridge v. Iglesi as , 950 F. Supp. 1187, 1193 (D.D.C. 1996); Yosuf v. United States , 642 F. Supp. 432, 440 (M.D. Pa. 1986); Montgomery

Ward & Co. v. Gregg , 554 N.E.2d 1145, 1164-65 (Ind. Ct. App. 1990); Anderson v. Litzen

berg , 694 A.2d at 162.

The injured party

has the burden of prov

ing his or her impairment of earning capacity damages. See Sutton v. Over cash , 623 N.E.2d

820, 838 (Ill. Ct. App. 1993); Southwestern

Bell Tel. Co. v. Sims , 615 S.W.2d 858, 864 (Tex. Ct. App. 1981). In order to recover these damages, the injuredpersonmust first prove wi th reasonable certainty thatthe injury has or wil l impair his or her e

arning capacity. See Moattar

v. Foxhall Surgical Ass

ocs. , 694 A.2d 435, 439-40 (D.C. 1997); Barnes v. Cornett , 213 S.E.2d 703, 705 (

Ga. Ct. App. 1975); Wahwasuck v. Kansa s Power & Light Co. , 828 P.2d 923, 931 (Kan. 1992); Young v. Stewart , 399 S.E.2d

344, 346-47 (N.C.

Ct. App. 1991). Then,the injured party mus t introduce evidence

concerning the

extent of the impairment of

his or her earning capacity.

The proof concerning im pairment of earni

ng capacity is, to som

e extent, spec ulative and imprecise. See Marress v. Carolina Direct Furniture, Inc. , 785 S.W.2d 121, 123 (Tenn. Ct . App. 1989); see also Altman v. Alpha O bstetrics & Gynecology, P.C. , 679 N.Y.S.2d 642, 643-44 (N.Y. App. Div. 1998); Shivers v. Riney , 695 P.2d 951, 955 (Or . Ct. App. 1985); Border Apparel-E ast, Inc. v. Gu

adian , 868 S.W.2d 894, 89 7 (Tex. C t. App. 1993); 4 Harper, § 25.8, at 553; 2 Stuart M.-9-

Speiser, et al., The American Law of Torts § 8:27, at 625 (1985) (“S pe iser”). However, this imprecision is not grounds for excluding the evidence. See Turrietta

v. Wyche , 212 P.2d 1041, 1047-48 (N.M. 1949); Kaczkowski v. Bolubasz , 421 A.2d 1027, 1037 (Pa. 1980).

The courts have found com petent and admissible

any evidence which

tends to prove the injured person’s present earning ca pacity and the probability of its increase
or decrease in the future. See Martinez v. J ordan , 553 P.2d 12 39, 1240 (Ariz. Ct. App. 1976); Anderson v. Litzen berg , 694 A.2d at 162; Turrietta v. Wyc he , 212 P.2d at1047; Wilson v. B.F. Goodrich Co. , 627 P.2d 1280, 128 2 (Or. Ct. App. 1981). Thus, the courts have routinel y a dmitted evidence con cerning numerous fa

ctors, including the injured person’s age, health, inte lligence, capaci

ty and ability to work, experience, training, record of employment,and future avenues of emp loyment. See Marressv. Carolina Direct Furniture, Inc. , 785 S.W.2d at 123-24; Clinchfield R.R.

v. Forbes , 57 Tenn. App. 174, 184-85, 417 S.W .2d 210, 21 5 (1966); see also Kwapien v. Starr , 400 N.W.2d 179, 184 ( Minn. Ct. App. 19 87); Allers v. Willis , 643 P.2d 592, 595 (Mont. 198 2); Schae fer v. McCreary , 345 N.W.2d 821, 824 (Neb. 1984); 4 Harper, § 25.8, at 550; 2 Spei ser, § 8:27, at 631- 32.
Impairment

of earning capac ity is not necessarily measured by an injured person’s employment or

salary at the time of th e injury. See Schaefer v. M cCreary , 345 N.W.2d

at 824. It is not uncommon for an injured person to assert that an injury has caused him or her to abandon plans to change employment, to obtain additional education or tr aining, or tootherwise advance their career. In the face of such an assertion, the trier of fact must disting uish between persons with only vague hopes of entering a new pro

fession and those wit

h the demonstrated a

bility and intent to do
so. See Jacob A. Stein,

2 Personal Injury Damages § 6:15, at 6-55 ( Gerald W. Boston, ed., 3d ed. 1997). Often, making thi s distinction depe nds on the steps the person has actually t

aken to accomplish his

or her educational or career goals.

Studen ts ar e among the class of injured persons for w hom educational and
career plans are relevan

tin determining impai

rment of earning capaci

ty. A majority of courts have concluded that a student or trainee has the right to have a jury consider h is or her education, training, and propose d occupation or care

er in calculating damages for impaired earning c apacity. Thus, a student may present evidence of his
or her educational ac

complishmentsand plans and of the earning potent

ial of persons2 The courts have reac hed similar con clusions with regard to promising athletes whose careers

were cut short. See Clinchfield R.R. v. Forbes , 57 Tenn. App. at 185, 417 S.W.2d at 215; Connolly v. Pre-mixed Concrete Co. , 319 P.2d 343, 345-46 (Cal. 1957); Horton v. McCrary , 620 So. 2d 918, 931 (La. Ct. App. 1993), rev'd on other grounds , 635 So.2d 199 (La. 1994). -10- e ngaged in the profession or career the student intends to pursue, as long as th e evidence is not wildly

speculative. See Dickens v. United States , 545 F.2d 886, 892- 93 (5th Cir. 1977) (a

medical stude

nt aspiring to be a surgeon was pe rmitted to present evidence of his aca demic succ ess, his medical tr aining, and his clea

r intent and aptitude); Whittle v. Schemm , 402 F. Supp. 1294, 1299-1300 (E.D. Pa. 1975) (a first-year junior college student

was perm itted to present evide nce of his plans to become an architect); Bowens v. Patte rson , 716 So. 2d 69, 87-88 (La. Ct. App.

1998) (ahigh school student was permitted to present evidence of plans to attend coll

ege and graduate with a degree in computer science); Lee v. USAA C

as. Ins. Co. , 540 So. 2d 1083, 1091-92 (La. Ct.App. 1989) (a high sc hool student was permitt

ed to present evidence o f plans to attend college and ha ve a career in ban

king); Kenton v. Hyatt HotelsCorp. , 693 S .W.2d 83, 92-94 (Mo. 1985) (a second-year law student was permitted to present evidence concerning her plans to graduate from law school and have a legal career). 2

2.

Far from being speculat

ive, Ms. Overst

reet’s evidence c

oncerni ng th e impairment

of her earning capacity is compellin g. She demonstrated with a reasonable

degree of certai

nty that the injury to he

r eye is permanent and thatit has affectedher ability to advance in the nursing profession. Ms. Overstreet, her husband, her nursing profess ors, a nd her rehabilitative counselor testified at trial concerning

her plans to pursue an advanced nu

r sing degree. This evidence establish ed that prior to her inju ry, Ms. Overstr

eet had the academ

ic preparation, ability, and perseverence to a ttain an advanced nur

sing degree and a

more advanced level of specializ

ation.

She graduated from high

school with honors and earned baccalaureate degrees from Tennessee Te chnol ogical University in both psychology and nursing . Ms. Overstreet’s professors described her as diligent and committed and as an exceptional student who was an excell

ent candidate for a

n a dvanc ed degree and who had unlimited oppo rtunities in nursing. Fr om this proof, a jur

y could reasonably con

clude3 Ms. Overstreet was earning $33,000 per year when she was injured.

4 Certifiednurse

anesthetists earnapproximately $66,000 per year, a nd nurses with gra

duate degrees earn between $40,000 and $50,000 per year. -11- thatMs. Overstreet

had the motivation, a

ptitude, and

inclination to pursuing further nursing training that w

ould have enhanced he

r earning capacit

y.
Shoney’s places great significance on the fact that Ms.Overstreet had not yet applied to a graduate nursing program when she w

as injured and argue s th a t her failure to do so renders her plans to pursue a graduate nursing degr ee speculative

at best. We disagree. A

n injured party is

not required to be enr

olled in an educational
or training program in o

rder to testify about

his or her future educatio nal plans. See Whittle v. Schemm , 402 F. Supp. at 1 299-1300. Ms. Over street satisfacto

rily explained why she did not apply to a graduate nursing program i mmediately upon receiving her baccalaurea

te degree from T

ennessee Technolog

ical University. She presented uncontradicted evide nce that it was com

mon, and even recommend ed, that
nu rses o btain at least one ye ar of practical c

linical experience

before entering a graduate nursing p rogram.

Ms. Overstreet’s work life expectancy was at least another thirty years when she was injured. She testified that her injury has made it difficult for her to perform routinenu rsing tasks, suc h as measuring medic ines and giving intrave

nous injections. Thus, her ey e injury has not only curtailed her plans to obtain a masters degree i n nursing or to become a cer tified registered

nurse anest

hetist or neonatal nurse practitionerbut has also impaired her ability

to continue to work as a registered nurse. In light of Ms. Overstreet’s work life expectancy, the evidence of her salary whe n she
was injured, 3 and thesalaries of nurses with graduate degr

ees and certified registered
nurse anesthetists, 4 the fact that the ju ry awarded Ms. O

verstreet $1 0 0,000 for impairment of her earning capacity is consistent with the evidence.

B. T HE A DMISSION OF THE 1992 E XTERN E VALUATION F ORM

The second evidence ques tion involves the admiss

ion and use of a ho spit al personnel change notice form containing an evalua

tio n of Ms. Overstreet’s performance as an extern in 1992.Shoney’s insists that the trial court’s act ions concerning

the admission and

weight of the docume

nt were prejudici

al in two ways.-12-

First, it argues that the initial deci sion concerning the form’s admissibility prevented it from effectively cross-examining Ms. Overstreet. Second, it argues that the later admission

of the form was und

ermined by the trial

court’s cautiona

ry inst ructions concerning the form . We find both clai ms without merit.

1.

Ms. Ov erstreet participate d in a ten-week ext

ern program at Cook

eville General Hospital foll owing her third year of nursing school. T

he purpose of the programwas to provide nursin g students with additional clinical experience. Each extern was assigned to wor k with another nurse

at the hospital. Ms. Overstreet was assigned to a nurse w

orking on the night shift.

Fo llowing the completion of the summer extern prog

ram, the hospi

tal routinel y completed a “personnel change notice” form for ea ch extern to indicate that their externshipwas completed. F or employees leaving the employment of the hospital -- as these externs wer

e -- the form req

uired the employee’ s superviso r and othe r management

personnel to rate the departing employee’s performance and t o indicate whether the employee was eligi

ble to be rehired.The form also contained signature lines for the employee’s s up ervisor, the department head, and the hospital administrator. Departing employe es did not receive a copy of this form; however, a copy was placed in their hospital personnel file.

On September 14, 1992, the hospital generated a personnel change notice form for Ms. Overstreet’s externs hip wh ich had been completed on July 31, 1 992. The supervisor

of nursing signed the form on September 14, 1992 even before

the blanks for Ms. Overstreet’s performance ratings had been filled in. These

blanks were not filled in by the nurse workin g directly with Ms.Overstreet, but r at her by a nurse manager who was working on t

he orthopaedic floor

during the day shift and who had
neverworked with Ms. O verstreet. The

nurse manager late

r candidly

conceded that she had no direct knowledge of Ms. Overstreet’s performance and that she had based her comments on informa

tion supplied by other s. On the form, Ms. Overstreet’s attendance was rated “above avera ge;" the q uality of her work and her general efficiency were rated as “average;” and her dependability and initiative were rated as “below average.” The nurse manager also checked the box i

ndicating that Ms. Overstreet

was eligible to be rehired. The form was later sign ed by the hospital5 The stipulation does not appear in the r ecord. Theoretically, one party could have

understoodthat the stipulation extended only

to the authenticity

of the documents, while the other could have assumed that

the s tipulation covered both authentication and admissibility. In the absenceof evidence to th e con trary, we have c

oncluded that the s

tipulation extends

to both authenticity

and admissibility be

cause Ms. Overst

reet h as not taken issue with Shoney’s characterization of the issue.

6 Specifically, the trial court stated: And I want to

ex plain for the rec

ord the reason tha

t I have exclude

d this exhibit. It’s the type of informatio n that begs cross-

examination. It ind

icates on it -13- administrator

and reviewedby the hospital’s human resources dire ctor. The human
resources director wrote “questionable rehire” on the form to remind

her to inquire into the two below average ratings should Ms. Overstreet decide later to seek employment

at the hospital. Thereafter, the form w a s placed in Ms. Overstreet’s personnel file.
Shoney’s obtained a copy of the contents of Ms. Ove

rst reet’ s hospital personnel file during pretria l discovery. The

file contained not onl

y the 1992 extern evaluation

but also later evalu

ations performed a

fter Ms. Overst

reet went to work

for the hospital as a

nurse . The parties ap

parently stipulated p

rior to trial that th

ese records were admissible a s business records under

Tenn. R. Evid. 803(6). 5 One of the attorneys representing S honey’s cross-exam ined Ms. Overstre

et extensively concerning

the hospital’s evaluations of her performance after she accepted full time employment

with the hospital. M s. Overstreet id entified these p ost-evaluation form s, and the trial court a

dmitted them into evide

nce without objectio

n.
Shoney's counsel then turned his attention to the evaluation of Ms. Overstreet’s performance as an extern in 1992.Ms. Overstreet testified that she di

d not remember being evaluated during her externship and that she could not identify the September 1992 evaluation form because she had never seen it before. Following an off-therecord bench conference , the attorney cha nged the direction

of his cross-examinat

ion and began questioning Ms. Overstreet about her plans for raisi

ng a family. The crossexamination concluded a few questions later.

The tria l court dismissed the jury for the day following Ms. Overstreet’s testimony. In the jury’s absence, the trial court stated for the record what had transpired during the bench co nference. The trial court explained that the personnel changenotice form could be marked for identif

ication but that the f

orm could not be introduced into eviden

ce through Ms. Ove

rstreet because s

he could not

identify it. 6below-average initiative, questio

nable rehire, below-average dependability. It does notindicate that she

participated in

the evaluation to any extent. She could not identify it. And even though it may be a part of the Cookeville General Hospital record, it’s hearsay within hearsay. It’s not only hearsay within hearsay, b ut i t’s opinion within hearsay. And it would be my judgmen t that it would - - to permit this personnel change notice to be introduced to the jury without cross-examination, with out allowing the other side to know the source of it, to face the person who made the evaluation, would be unfair and undue prejudice far out weighing any rele vance it might have to this case. -14- Atthat point, one

of Shoney’s attorne

ys stated for the rec

ord that he objected t

o the trial court’s refusal to permit him to cross-examine Ms. Overstree t using the form. He asserted that the formwas admissible as a business record and t

hat it was relevan

t “to the major issue in thi s case, the degre e of her [Ms. Overstreet’s] depression before and after this partic ular accident.”
Shoney’s later called thre

e witnesses who

were involved in the

preparation and custody of the excluded form. Each witness identified the document and explained their role in its prepara

tion. However, each witness also conceded that they were not personally

familiar with Ms. Overstreet ’s performance a s an extern and that t

he information

concerning her performance was obtained from others. At this juncture, the trial co urt admitted the form into evidenc e and permitted the witnesses to be examined and cross-examine d concerning the conte

nts of the form. H

owever, the trial court also gave the j ury a cautionary inst ruction concerning it

s consideration of the information on

the form. Shoney’ s did not attempt to re call and cross-examine Ms. Overstreet about the form after it was admitted into evidence.

2.
Lawyers and judges regard cross-examination as an essential safeguard of the accuracy and completeness of tes timony. See 1 McCormick on Evidence § 19, at 78 (John W. Strong ed.,

4th Practitioner’ s ed. 1992). It enables the trier-of-fa ct to assess
awitness’s demeanor, sincerity, and ability to perceive, recall, or narr ate past events. See Neil P. Cohen, et al., Tennessee Law of Evidence § 607.3, at 338 (3d ed. 1995). Its purposeis to adduce from a w itness any information that may clarify, qua

lify, or undercut a witness’s testim

ony on direct examina

tion, impair its ef

fective ness, or affect the inferences the tri er-of-fact might draw. See Ro berto Aron, et al., CrossExamination

of Witnesses § 2.06 (1989) (quoting Professor Anthony G. Amsterdam).-15- Lawyers should be accorded w ide latitude in

cross-examining w

itnesses. See Crunk v. Gro oms , 60 Tenn. App. 611, 620, 450 S.W. 2d 15, 20 (1969); Union Traction Co. v. Todd, 16 Tenn. App. 200, 208, 64 S.W.2d

26, 30 (1933). However, despiteits salutary purpose, c ross-examination is subject to reasonabl e limitations to prevent obstruction of the ord

erly progress of a t

rial. These lim

itations are left t

o the trial court’s discretion

. See Edwards v. Stat e , 221 Tenn. 60, 66, 424 S .W.2d 783, 786 (1968); Austin v. City of M emphis , 684 S.W .2d 6 24, 631 (Tenn. Ct. App. 1984); Wagner v. Niv e n , 46 Tenn. App. 581, 598, 332 S.W. 2d 511, 519 (1959). T hus, the trial court may use its disc retion to prevent law

yer misconduct, see Tenn. R. Evid. 611(a), to avoid unfair prejud ice, confusion, or wast e of time, see Tenn. R. Evid. 403, and to ensure compl iance with other appl icable rules of evide nce and procedure.

The fact that these dec

isions are charac

teriz ed a s discretionary re flects a recognition

that they involv e a choice among accepta ble alternatives. See Card v. Tennessee Civil

Serv. Comm’n , 981 S.W.2d 665, 666 (Ten n. Ct. App. 1998). It also ind icat es that the appellate c ourts will not interf

ere with a trial c

ourt’s decision simply because

the trial court did

not choose the alternative that the appellate court would have chosen. See BIF v. Ser vice Constr. Co. , No. 87-136-II, 1988 WL 72409, at * 6 (Tenn. Ct. App. July 1 3, 1988) (No Tenn. R. App. P. 11 a pplication filed)

. Discretionary decis ions are not entirely immune from appellate scrutiny but are subjected to less rigorous ap pellate scrutiny. See Martin B. Louis, Al locating Adjudicative Decision Maki ng A uthority Between the Trial and Appellate Level: A Unified View of the Scope of

Review, the Jud

ge/Jury Question, and Procedura l Discretion , 64 N.C.L. Rev. 993, 1045-46 (1986); Maurice R o senberg, Judicial Dis cr etion of the Trial Court, Viewed From Above , 22 Syracuse L.Rev. 635, 667 (1971). Discretionary decisions must take a pplicable law into account and

must be consistent

with the facts before th e court. See Ballard v. Her zke , 924 S.W.2d 652, 661 (Tenn. 1996) (hold

ing that th e trial court must gi ve due consideration t

o the applicable

law and facts).Thus, the appe llate cou rts will set aside a trial court’s discretionary decision o nly wh en the decision is base d on a misapplication of

the controllinglegal principles o r on a clearly erroneou s assessment of the ev idence. See Alside Supply Ctr. v. Smith Heritage Siding Co. , No. 03A01-9797- CH-00069, 1997 WL 414982, at * 1 (Tenn. Ct. App. July 25, 1997) (No Tenn. R . App. P. 11 application filed) (

citing Cooter & Gell

v. Hartmarx Corp. , 496 U.S. 384, 405, 110 S. Ct. 2447, 2461 (1990) ); see also James, Cooke & Hobson, Inc. v. Lake Havasu-16-

Plumbing& Fire Protection , 868 P.2d 329, 332 n. 4 (Ariz. Ct. A pp. 1993); Canalez

v. Bob’s Appliance Serv. Ctr., Inc. , 9 72 P.2d 2 95, 302 (Haw. 199 9); Emmons v. Purser , 973 S.W.2d 696, 699 (Tex. Ct. App. 1998); Shiel v. Ryu , 506 S.E.2d 77, 82 (W. Va. 1998).

When reviewing a trial

court’s discretiona

ry decision, appell

ate courts should begin with the presumption that the decisi on is correct and should r eview the evidence in the light most favorable to the decision. See In re Conservato rship of Scharles , 285 Cal. Rptr. 325, 329 (Ct. App. 1991); Citicorp Mortgage, Inc. v. Burgos , 629 A.2d 410, 412 (Conn. 1993); Onwuteaka v. Gil l , 908 S.W.2d 276,

280 (Tex. Ct. App. 1995). Appellate courts s hould permit

a trial court’s discretionary decisio n to standif reasonable judicial minds can differ c oncerning its propriety. See In re Ma rriage of Breuer , 630 N.E.2d 1245, 1247 (Ill. Ct. Ap

p. 1994); Fusaro v. Firs t Fam ily Mortgage Corp. , 897 P.2d 123, 132 (K an. 1995); T.D.J. Dev. Corp. v. Conservation

Comm’n of N. Andover , 629 N.E .2d 32 8, 331-32 (Mass. C t. App. 1994); Phillips v. De ihm , 541 N.W.2d 566, 571 ( Mich. Ct. App. 1995); Bridge v. Karl’s, Inc. , 538 N.W.2d 521, 523 (S.D. 19 95).

3.
Shoney’s asserts that the

trial court erre

d by preventing it from

introducing the 1992 personnel change notice form during its cross-exa

mination of Ms. Ove

rstreet. Itargues thatthe trial court’s de cision improperly

“shifted the burden” to Shoney’s to lay the foundation for admission of the exhibi t. This argument o

verlooks the distinction

between the admiss

ibil it y of documents and the a dmissibility of the contents of documents

.

Tennessee has long recognized the “English rule” which permits the scope of cross-examin a tion to exceed the scope o f the witness’s direct examination. See Sands

v. Southern Ry. , 108 Tenn. 1, 9, 64 S.W. 478, 480 ( 1901); Ray v. Hutchison , 17 Tenn. App. 477, 483, 68 S.W. 2d 948, 952 (1933 ). Thus, l itigants may prove el ements of their own case during the c

ross-examination of

their opponent’s witn esses. These common-law precedentsare now embodied in Tenn. R. Evid.611(b) which states , in part, that “[a] witness may be cross-examined on any matter rele

vant to any issue in the case.”-17- Cross-examination is not, howeve r, a “universal so

lvent” that someho

w render s all evidence admissib le. See IIIA John H. Wigmore, Evidence § 878, at 648 (Chadbourne

rev. 1970). Substa

ntive evidence intro

duced during cross-e

xamination must comply with the same requiremen ts a s evidence introduced during direct examination. Thus, litigants seeking to admit business records into evidence during cross-examination

of a witnessmust satisfy the authe ntication requirem

ents of Tenn. R. Evid. 901 and the fou ndation requiremen ts of Tenn. R. Evid. 403 & 80 3(6). If the business record contains hea rsay statements, t

he litigant seeki

ng to introduce the record must also demonstrate that the statements in the record are l ikewise admissible. See Kanipes v. Nort h Am. Phillips E

lecs. Cor p . , 825 S.W.2d 426,

428 (Tenn. Ct. App. 1991); Butler v. Ballard , 696 S.W.2d 533,

536 (Tenn. Ct. A

pp . 1985).

The source of Shoney’s d iscontent with the

trial court’s ruli

ng is its belief that the parties’ pre-trial stipulation rendered the contents of Ms. Overstreet’s personnel file admissible. In the absence of proof concerning its

terms, we have c

onstrued the stipulation

to extend to two thresho

ld requirements

only. First, the parties agreed that the copies of the documents taken from Ms. Overstreet’s hospital personnel file were true and accurate copies of the documents actu ally in Ms. Ov erstreet’ s file. This agreement

satisfied the authe

ntication requirem

ents in Tenn. R. Evid. 901. Second, the parties agreed that the documents in Ms. Overstreet’s personnel file were records of a regularly conduct ed business activ ity. This agreement sa tisfied the

foundation requirements

for the “business re

cor ds” ex ception to the hearsay rule in Tenn. R. Evid. 803(6).

We find n o indication in the appellate record that the parties stipulated that every record in Ms. Overstreet’s hospital personnel file was relevant or that every hearsay statement or opinio n contai ned in these business r ecords would be admissible. Thus, when challenged, Shoney’s had the burde

n of demonstrating that particular hearsay statements contained in the records in Ms. Overstreet’s personnel file were admissible.

Shoney’s had not ca rried this burden wh en it attempted to introduce the opinions concerning Ms. Overstreet’s performance as an externduring its cross-examinat

ion of Ms. Overstr

eet.
Shoney’s intended to accomplish two things by cross-exami ning Ms. Overstreet

concerning the 1992 pe

rsonnel c hange notice form.First, it desired to-18-

place evidence before the jury that Ms. Overstreet ’s superiors found he r initiative and dependability

to be “below average ” prior to the accid ent. Second, it desired to undermine

Ms. Overstreet ’s credibility and f avorable appraisa

l of her own initiati

ve by proving that her co-workers’ opini ons of her performance

in 1992 differed fr

om her own. Both these pur

poses were proper

, but they hinged on S honey’s ability to demonstrate

that the statements

of opinion concerning Ms. Overstreet’s performance in 199 2 wer e admissible. Unf ortunately for Shone

y’s, Ms. Overst

reet could not provide the necessar

y foundation for this st

rategy to be success

ful.

Ms. Overstreet

did not refer to the 1992 form during her directexamination and did not useit to refresh her memory at any point durin g her testimony. She played
no role in preparing

the form and could not even remember being evaluated duri

ng her 1992 externship. She could not identify the 1992 form when c

onfronted with it during cr oss -examination. Li kewise, she could n

ot identify the person

or persons who evaluated her or whose notations appeared on the form.

Trial courts should not permi t a witness to be cross-examine d concerning the contents of a document unless the document has already been admitted into evidence
or unless the document w

ill be introduced into e

vidence before the

conclusion of the cross-examination. See Sharman v. Skagg s Cos. , 602 P.2d 833, 837 (Ar iz. Ct. App. 1979); State v. Green , 372 A.2d 133, 136 (Conn. 1976); Henson v. Veter an’s Cab Co. , 185 N.W.2d 383, 38 8 (Mich. 1971); State v. Hale , 371 S.W.2d 249, 254 (M o. 1963); Logan v. Grady , 482 S.W.2d 313, 320 (Tex. Ct. App. 1972); see also 81 Am. Jur. 2d Witnesses § 829, at 680 (1992 ); 98 C.J.S. Witnesses § 391, p. 163 (1957). Any other rule would ef

fectively prevent t

he other parties,

including the party w

ho called the witness, from examining the w itness concerning the

contents of the document.

This record contains tw

o independent

ly suffi cient reasons for up holding the trial court’s decision to limit Shoney’s cross-examination of Ms. Overstreet based upon the contents of the

1992 personnel change

notice form. First, Ms. Overstreet’s
answers to questio n s concerning the 1992 f orm conclusively dem

onstrate that the document and the opinions in the document were beyond Ms. Overstreet’s personal knowledge. Accordingly, she c ould not have provide

d the prop er foundation for admitting the document into evidence. Second, the lack of evidence concerning who performed the evaluation, how the evaluation was performe d, and the basis for the-19-

evaluation

p rovided t

he trial court with sufficient basis to question the document’s tr ustworthinessunder Tenn. R. E vid. 803(6) and to conc

lude that permit

ting th e introduction

of the document throug

h Ms. Overstree

t would unfairly

prejudice Ms. Overstreet

and would otherwise

confuse the issues an

d mislead the jury unde

r Tenn. R. Evid. 403. Accordingly, we find that the trial court pro perly dec lined to permit Shoney’s to introduce

the 1992 form during Ms . Overstreet’s cross-examination.

C. T HE L IMITING I NSTRUCTIONS

The trial court event

u ally permitted Shoney’s to introduce Ms. Overstreet’s 1992 personnel change notice form after Shoney’s called three witnesses who played
arole in the prepara

tion of the form. H

owever, each w

itness conceded th

a t the opinions in t he form concerning Ms. Overstreet’s performance as an extern were formed by others and that they had no personal knowledge that would have enabled them to form their own op inion regarding Ms. Overs treet’s initiative during the
summer of 1992. Following th

ese witnesses’ te stimony, the trial c ourt instructed the jury that: Members of the jury, I have admitted Exhibit 23.I would

remind you that any opinion

exp ressed on that form is to be received under the

same standards that

I told you about expertopinion before. In other wor ds, if the opinion that might be expressed on that f orm is not ba

cked up by evidence, then you w

ould ignore it. Shoney’s now argues that these inst ruc tions seriously and inap propriately undermined the value

of the exhibit.

None of the witnesses who testified concerning the 1992 evaluation form were qualified as experts in human be havior, including mot

ivation or initiative. Thus,

they
were testifying as lay persons when they were asked about Ms. Overstreet’s ini tiative d uring her 1992 externship. As lay persons, they co uld only give an opinion concerning

Ms. Overstreet ’s initiative if thei r opinion was “rationally ba

sed” on their
own perceptions. See Tenn. R. Evid.701(a)(1). Thus , their opinions conc erning Ms. Overstreet’s initiative must have b een based on

their personal knowledge. See Tenn. R. Evid. 602; see also In re Estate of Elam , 738 S.W.2d 169, 172 (Tenn. 1987); Bills

v. Lindsay , 909 S.W.2d 434, 439 (Tenn. Ct. A

pp. 1993) (hol ding th at lay opinions concerning

the soundness of a per son’s mind must be base d on conversations,-20-

appearances,and conduct); Edwards v. State , 540 S.W.2d 641, 648 (Tenn. 1976) (lay opinions concerning a person’s sanity must be based on personal observation); McCandless

v. Oak Constructors, Inc. , 546 S.W.2d 592, 598 (Tenn. Ct. A

pp. 1976) (lay opinions concerning a p erson’s intoxication must be based on person al observation).

Tenn. R. Evid. 701 requires lay witnesses to explain the basis for their personal knowledge

of the facts that f

orm thebasis of their opin ion. See Neil P. Cohen et al., Tennessee Law of Evidence § 701.3 (3d ed. Supp. 1998). Thus, lay opinions that are based on facts or circumstances not in evidence must be r ej ected. See Pierce v. Pierce , 174 Tenn. 508, 510, 127 S.W. 2d 791, 792 (1939). In our view, the trial court would have been justified i

n excluding Exhibit 23 because none of the witnesses had personal knowledge of the fa ctual basis for the o

pinion Exhibit 23 c ontain ed concerning

Ms. Overstreet’s initiative. However, the trial cour t decided to admit Exhibit 23 with a lim iting instructio n. The limiting instruc tion was consistent w

ith Pie rc e v. Pierce , and, therefor e, we decline to f

ind that the trial cou

rt abused its discretion by giving this instruction contemp oran eously with the admis sion of the exhibit.

IV. T HE V ERDICT F ORM
Shoney’s also takes issue wit h the proc edure dev ised by the trial cour t to facilitate the jury’s consideration of Ms. Overstreet’s damage claims. I t asserts that the trial court infringed on its right to a gener al verdict by providing

the jury with a “verdictform” that separately itemized each of Ms. Overstreet’s damage claims. It also asserts that the ver

dict form prompted t

he jury to award duplicate, overlapping damages for the same injury. We find no r eversible error i

n the preparation

and use of the verdict form in this case.

A.

Prior to the conclusion of the

trial, the trial court provided counse l with drafts of its proposed jury instructions and with a form the court planned to provide the jury to aid in its deliberati

ons. While Shoney’s did no t object tothe proposed instructi ons, itobjected strenuously

to the proposed verdict form which itemized each of the types7 The version of the trial court’s instructions in the transcript refersto “incom e damages,”

while the trial court’s written instructions in the technical record refer to “economic damages.” -21- of damages sought by

Ms. Overstreet. The sole basis for the object

ion was that the verdictform required the jury to render a ser

ies of special verd

icts even though Shoney’s had requested a gene ral verdict in acc

ordance with

Tenn. R. Civ. P. 49.03. The trial court responde

d that it intended to ask

the jury toreturn a general verdict and that the verdict for m was intended to be

only a “gu ide” for the jury’s deliberations.

The trial court’s instr

uctions contained dire

ctions regarding the

process for calculating

the damages if the jury decided that Ms. Overstreet was entitled to recover from Shoney’s. These instructions, for the most part, tracked the Tennessee Pattern Jury Instructions. Ref

erring first to “non-economic damages,” the trial court instructed the jury to

determine

the reasonable compensation for any physical pain and suffering, disf

ig urement, perman

ent impairment and loss of capacity for

the enjoyment of lif

e suffered by the plaintiff and of wh

ich her inj ury was the legal cause, and for pain and suffer

ing and loss of capaci

ty for the enjoyment

of life in the past a

nd those which more l ikely than not will be experienced in the future from the same cause. Then, referring to “econo mic damages,” 7 the trial court stated that the jury

shouldalso consider what, if any, income dam

ages were or will be suffered. These include: No. 1 is the reasonable v alue of medi cal ca re, ser v ices and supplies reasonab ly required and actu

ally given in the treatment

of the plaintiff and

the present cash value of similar

servi ces reasonably expe cted to be required in

the future in the

treatment of the pl

aintiff; and Second, the value of earnin g capacity loss

in the past and that will be reason

ably expected to

be lost in the future as a result of the inju ry in question . . .

* * *
You are not permitt

ed to award a party sp

eculative damages which mea ns compensation for loss or harm which, although

possible, is conjectural or not r easonably certain. However, if you determine that a party is entitled to recover, you should compensate for loss or harmwhich has been suffered and in addition, for loss or harm which is reasonably expecte

d, more probably th

an not, to be suffered in the [future] as a legal result of the injury i n question.-22- Followingthese instructions, the trial court tur

ned to the verdict for

m and the procedure for reporting

the verdict. The verdict form the court provided the jury was as follows:

We, the jury, pres ent the followi

ng answers

to the questions submitted by the Court:
1. Was the defendant Shoney’s Inc. guilty of negligence which was the legal caus e of the injury to the plaintiff? Yes_____ No_____
If the answer to

Question One is “No”, simply sign the verdict form, and you [do] not need to fill out Question Two since you will have f

ound the issues in favor of the defendant.
2. If so, set

forth the amount of damages, if any, you find h ave been proven by a preponderance of the evidence in each of the fo llowing categories:

a. NON-ECONOMIC DAMAGES:
1. Physical pain and suffering - past $___

__ _ 2. Physical pain and suffering - future $_

__ __ _ 3. Permanent impairment and/or disfigurement $

____ _ _ 4. Loss of capacity for the enjoyment of life - past $__

__ _ _ 5. Loss of capaci

ty for the enjo

yment of life - f

uture $_

____ _ b. ECONOMIC DAMAGES
1. Medical care ser

vices to date $_

__ __ _ 2. Future medical care services $

____ _ _ 3. Value of earning capacity lost - past $__

__ _ _ 4. Value of earni

ng capacity los

t - future $_

____ _ TOTAL $______ Date: __________

____________________ JURY FOREPERSON
After providing the jury with the form, the trial court explained that “ in reporting your verdic

t, it is not necessary t hat you break your v erdict down into the individual elements of damages, but you must report your award, if a ny, in a single sum.” Then the

trial court explained that the purpose of the verdict form was

“to aid you [the jurors] in your delibe rations.” It also

explained that if the jury decided that Shoney’s negligence

caused Ms. Overs

treet’s injuries,

it must setforth the

amount of damages,

if any, you find have been proven by a preponderance of the evidence in ea ch of the followingcategories. And then I have the categories listed as I did in the charge: Physica l pain and suffering in the past. Physical pain and suf fering in the future. Pe

rmanent impairment

and/or disfigureme

nt. Loss of capacity f

or the enjoyment

of life in the past. Loss of capac ity f or the enjoyment of life in the future. Andthen the income [economic] damages: Medical care for se rvices to date. Fu

ture medical car

e services. Valueof earning capaci

ty lost in the past. V

alue of earning capacity lost in the future.8 Shoney’s has not ra ised this issue on ap

peal, and there

fore, we have n

ot addressed it. -23- Then you will total any figures that you havefound on any of those items. And th

en you’ll date the

form and the jury foreperson

will sign it. When you report your verdict, any figure you award would be the total of all th e damages for the s

um of any figures for elements of

damages that you

have calculated. That is the total fi

gure if any.

After deliberating for app roximately two and one-half hours, the jury returned a general verdict

against Shoney’s for

$2,013,000. Notw

ithstanding the reques

t by counsel for

Shoney’s to review the verdict form, the trial court placed the form under seal, stating that "in the event it becomes appropriate to open it at some future time, we’ll do t hat.” Among the post-trial motions Shoney’s filed was a motion fo r permission

to examine the

verdict form. A

fter reviewing th

e verdict form, Shoney’s pointed out

thatthe jury’s informal calculations on the back of the verdict form were $200,000 less than the

damage calculations thathad been filled in on t he front of the form. 8 The trial court denied the post-trial motions, approved the jury’s verdict, and rendered a judgment

accordingly.

B. S HONEY ’ S D EMAND FOR A G ENERAL V ERDICT
Shoney’s a rgumen t that the trial cour t’s verdict form un

dermined its right to
ageneral verdict is fla wed for two reasons. First, Shoney’s had no right to a general verdictwhen this case wa s tried. Second,

the trial court’s ve

rdict form, which was the funct ional equivalent to specia l interrogatories,

did not prevent the jur

y from returning a genera

l verdict.

A general verdict is

nothing more than a

composite decision of the jury based
on the jury’s determi

nationof the facts and its ap plication of the la w, as charged by the trial court, to the fact s. See Law rence A. Pivnick, Tennessee Circuit C ourt Practice § 26-3 (1998). It is a unit ary finding by the

jury on all the issues between the parties including damages. See Hulshof v. Noran da Aluminum, Inc. , 835 S.W.2d 411, 420 (Mo. Ct. App.1992); Grumman Credit Corp. v. Rivair Flying Serv., Inc. , 845 P.2d 182, 185 (Okla. 1992

); Owens v. McBride , 694 P.2d 590, 593 (Utah 1984).9 Tenn. R. Civ. P. 49.03 was repealed effective July 1, 1997. See Order, Tenn. Decisions LVIV , LVIII
- LIX (Tenn. Mar. 12, 1997); Sen. Res. of Apr. 21, 1997, Sen. Res, No . 24, 1997 Tenn. Pub. Acts 1323; House Res. of Apr. 28, 1997, House Res. No. 47, 1997 Tenn. Pub. Acts 1487. -24- The amount of damages is expressed as a total sum. See ITT TerryphoneCorp. v. TriState Steel Drum, Inc. , 344 S.E.2d 686, 691 (Ga. Ct. Ap p. 1986).

When this case was tried, T enn. R. Civ. P. 49.03 9 preserved a litiga nt’s right to demand a general verdict “whenever

such right is given by the Constitution of the S tate of Tennessee.” However, ten years earlier, the Tennessee Supreme Cour t removed the substance of this rule , rendering it a hol low shell. The Court held that civil litigants do not have a constitutional right to have all the i ssues decided by the jury at one time through a general ve rdict. See Ennix v. Clay , 703 S.W.2d 137, 139 (Tenn. 1986). Rule 49.03 onl y protected the right

to a general verdict

if that right

was constitutionally

mandated. Since general verd ic ts, such as the one Shoney's requested, a r e no longer constitutionally mandated, Rule 49.03 was meaningless at the time of trial.

Th e second flaw in Shone y’s “general verdi

ct” argument is that

it overlo ok s the prerogative of the trial court to requi re thejury to answer special interrogatories
even when one of the par ties has requested a gener al verdict. See Ladd v. Honda Motor Co. , 939 S.W.2d 83, 105 (Tenn. Ct. App. 1996). A number of states, either

by statuteor judicial decision, now require or permit the use of itemizeddamage verdicts similarto the verdict formused in this case. See, e.g., Perry v. Allen , 720 So.2d 614, 614-15 (Fla. Dist. Ct

. App. 1998); Shirley v. Smith , 933 P.2d 651, 655 (Kan. 1997); Tedeschi v. Burlington North ern R.R. , 668 N.E.2d 138, 140 (Ill . Ct. App. 1996). Contrary to the assertions in Shoney’ s brief, we find nothing in McIntyre v. Balentine , 833 S.W.2d 52 (Tenn . 1992) calling into question th e use of itemized verdict forms to aid the jury in calcu

lating da m ages. Reporting a verdict in this manner, when preceded by proper instructions on damages, actually facilitates the trial court’s ability to perform its role

as the thirteenth jur

or, as well as the

appellate court’s

ability to review the verdict for consistency and conformance with the evidence.

C. D UPLICATIVE D AMAGES-25- Sh oney ’s also insists that the itemization of damages on the verdict form permitted the jury to award du plicative damages.

Specifically, i

t asserts that the damages for pain and suffer ing, disfigurement,

and loss of capacit

y to en joy life overlap. Ms. Overstreet responds that Shoney’s should not be permitted to raise this issue on appeal because it did not take issue with the trial court’s jury instructions on damages.

We will first consider

whether Tenn. R. App. P. 36(a) pr events Shoney’s fro

m raising this issue on appeal. It would have been betterpractice had Shoney’s taken issue with the tr

ial co urt’s damage instru ctions or requested a

dditional instructions concerning

the components of e ach el ement of damage an d a complete instruc

tion patterned after T.P.I. 3 - Civil 14.01. However, we have deter mined thatnot raising these matters with the t

rial court does not pr

event Sh oney’s from challe

nging the verdictform. The verdict form , more so than the

instructions themselves, emphasizes the jury’s prerogative to assign a separate monetary loss for each type of damages requested by Ms. Overstreet. Thus, notwithstanding the trial court’s use of the term “if any” in its instructions and the verdict form, the verdict form is more conducive to duplicate, overlapping damage awards if the different measures of damages listed
on the form actually o

verlap. We have determined, howe ver, that the diff

erent
measures of damages sought by Ms. Overstreet repr

esent separate and

distinct losses.

Itwill be helpful at the outsetto define each of th e non-economic damages that the jury awarded –

pain and suffering, perm

anent impairment a

nd/or disfigurement, and loss of enjoyment of life – both past and future.

Although conceptuall

y they all
can be encompassed wit

hin the ge neral rubric of pa in and suffering, e

ach of these types of damages are separate an d distinct losse s to the victim. See Thomps on v. National R.R. Passenger Corp. , 621 F.2d 814, 824 (6 th Cir. 1980). The

drafters of the Tennessee Pattern Jury Instructions hav e reached a similar concl usion. See T.P.I. 3 - Civil 14.10 through 14.17.

Painand suffering

encompasses the physical and mental discomfor t caused by an injury. See Rufino v. United States , 829 F.2d 354, 359 n.8 (2nd Cir.

1987); Kirk-26-

v. Washington State Univ. , 746 P.2d 285, 292 (W ash. 1987). It inc

ludes the “wide array of mental and emotional responses” that accompany the pain, characterized as suffering, See McDougald v. Garber , 504 N.Y.S. 2d 383, 385 (N.Y. Sup. Ct. 1986);
s uch as angu ish, distress, fear, hum iliation, grief, sham e, or worry. See Charles T. McCormick, Damages § 88, at 315 (1935). The extreme disc omfort caused by lying in a hospital bed in a leg traction device w

ith holes punched in one’ s limbs is an example of the pain and suffering for which damages may be awarded. See Owen v. Locke , 650 S.W.2d 51, 52 (Tenn. Ct. Ap p. 1983).

A permanent

injury differs from pain and suffering in thatit is an injury from which the plaintiff cannot com pletely recover. See Jordan v. Bero , 210 S.E.2d 618, 630 (W. Va. 1974). It prevents a person from l iving his or her life in comfort by adding inconvenience or loss of physical vigor. See Wheeler v. B ennett , 849 S.W.2d 952, 955 (Ark. 1993). Disfigurement is a specific type of pe

rmanent inj ury that impairs a plaintiff’s beau ty, symmetry, or appeara nce. See Rapp v. Kenne dy , 242 N.E.2d 11, 13 (Ill. App. Ct. 1968). Permanent injury may relate to earning capacity, pain, impairment of physical function or loss of the

use of a body part, see Yates v. Bradley , 396 S.W.2d 735, 738 (Mo. Ct. App. 1 965), or to a mental or

psychological impairment. See Kerr v. Magic Chef, Inc. , 793 S.W.2d 927, 929 (Tenn. 1990); International Yarn Corp. v. Casson , 541 S.W.2d 150, 152 (Tenn. 1976).
Damages for loss of enjoyment of life compensate the i njure d person for the limitation s place d on his or her ability to enjoy the pleasures and amenities of life. See Thompson v. Nationa l R.R. Passenger Corp. , 621 F.2d at 824; Martin v. Southern Ry. , 225 Tenn. 77, 80- 81, 463 S.W.2d 690, 691 (1971) (approving an award for the “intangible

elements of damage

such as pain, su

ffer ing, inconvenience,

and deprivation

of the normal enjoym

ents of life”); Mariner v. Marsden , 610 P.2d 6, 12 (Wyo. 1980). This type of damage relates to daily lif

e activities that ar

e common to most people. S e e, e.g. , Nemmers v. United States , 681 F. Supp. 567, 575 (C.D. Ill. 1988) (goingon a first date, be coming a parent,

reading, debating p

olitics); Dyer v. United States , 551 F. Supp. 1266, 1281 (W.D. Mich . 1982) (sense of ta ste); Sweeney

v. Car/Puter Int’l Co rp. , 521 F. Supp. 276, 288 (D.S.C. 19 81) (recreationa l or family activities). It can also com pensate a victim for the loss of uncommon individual pursuits or talents. Se e e.g. , Distr ict of Columbia v. W oodbury , 136 U.S. 450, 459 (1890) (contributing artic les to professio

nal journals); McAlister v. C arl , 197 A.2d 140, 145 (Md. 1964) (inability to continue in a particular career); Kirk v. Washington-27-

State Univ. , 746 P.2d

at 292-93 (ballet). The p olicy underlying the aw

ard of loss of enjoyment

damages is of making the victim whole in the o

nly way a court can – with
an equiv alen t in money for each los s suffered. See Thompson v. Natio nal R.R. Passenger Corp. , 621 F.2d at 824

.

Ms. Overstreet received

$150,000 for past pain and suf fering, $100,000 fo

r future pain and suffering, $1,250,000 for perm anent im

pa irment and/or disfigurement, $150 ,000 for past loss of enjoyment of li

fe, and $100,000

for future loss of enjoyment of life. After considering the evidence presented at trial, we hav e determined that it s

upports each eleme

nt of the jury’s awa

rd of damages.

Ms. Overstreet suff

ered a painful injur

y to her left eye, underwent five inva sive surgical procedures involving hospital stays, and suffered mental anguish, inc luding the uncertainty of not know ing whether she

would ever see out of

her left eye agai

n. She was required to w

ear an unatt

ractive e ye shield and to suffe r through the embarr a ssment

of having strangers stare at her disfigured eye. When the surgical attempts to re-attach her retina failed, sh e had to accept

thatshe would never see

out of her left eye and that she had suffered a permanent, career-ending disability. Her eye remains red, inf

lamed, and

sensitive, and she

will always be af

raid of losing the sight in her right eye and becoming com pletely blind.

Ms. Overstreet’s pe

r manent injuries incl

ude the loss of vision an d the accompanying

disfigurement, a voc ational disability, a nd the profound impact

the injury has had on her psychological he alth. Her injury t

ranslates to a twe

nty-five percent impairment to her v

isual system and a tw

enty-four percent

impairment

to her body as a whole. She

has lost vision in her left eye, and her left eye is now disfigured because it is noticeably smal

l er than t he right eye and is constantly inflamed. Her effo rt s to use a scleral shell to minimize the cosmetic disfigurement have been unsuccessful. Ms. Overstreet testified that the shell never got comfortable, t

hat it felt like it was scraping her eye, and that whenshe removed it with a stopper it f elt like “it was going to suction my eye out.” Instead, she al ways wears glasses, which protect her right e

ye from injury.

Ms. Overstreet’s inj ury has also c hanged her personali ty significantly. T

he psychological effects of the accident have affected all areas of Ms. Overstreet’s life and have fundamenta

l ly changed her self-

perception. Prior

to her injury, Ms.-28-

Overstreet

was self-assure

d, motivated, and e

nthusiastic; now, she

is fearful

and withdrawn and has no self-confide nce. The deterioratio n of her psychological

health
was noted by her husband, h er nursing professor

s, and her physicia

ns, all of whom testified to her feelings of despair and powerlessnes s. Oneof her physicians, w ho prescribed anti-depressants f or Ms. Overstreet, testified that she has a low threshold for self-destructing a

nd lacks self-confi

dence since the injur

y. While Ms. Overstreet’s psychologist testified that she was no longer s uicidal, h e could not predictan end to her

treatment for post

-traumatic stres s disorder, anxiety attacks, and depression.

A rehabilitative counselor who evaluate d Ms. Overstree

t concluded that he r injury had caused a vocatio na l disability because of the physical and emotional requirements

of nursing. Ms. Overstreet’s loss of depth perception m akes it difficult for her to measure me

dicines and to give intrave nous injections, both of which are necessary tasks of her job. Her potential to advance in her career has been hindered, and it is unlikely she will be able to reach her prior career goals.

The ev idence also supports the award for loss of enjoyment of life. Whil e wearingher eye shield,Ms. Overstreet couldnot swim or wash he r own hair, and she
was forced to avoid

heavy lifting and driv

ing. Ms. Overstreet testi

fied that she cannot do much of her hou sework without assi stance and that she no longer enjoys socializing

or even leaving the h ouse. She is constantly af raid that something w

ill happen to her right eye and t hat she will be left

totally blind. She m

ust avoid lawnmowers or anything else that could throw projectiles, and she no longer swims because the chlorine and salt water hurt her eye. Sometim

es she burns herself

when she cooks and she testified that she will not risk going rafting, canoeing, or playin g tennis. Mr. Overstreet testified that his wife no longer w

ants to go out and that she bumps into people becaus e she doesn’t see the m coming on her left s ide. He als o observed that she is nervous a round glass objects and that she hates going to work because she cannot t

olerate the stress

.

In light of this evidence , we find no e vidence of duplicative damages . Ms. Overstreet

has clearly suffe

red past and future damages of pain and s uffering, permanent

disfigurement and impairment, and loss of enjoymen t o f life as a direct result of the injury and loss of vision in her left eye.-29- V. T HE D ENIAL OF A N EW T RIAL AND R EMITTITUR
Shoney’s asserts that the tr ia l judge d id not properly perform its function as thirteenth juror because it

failed to weigh the evidence independently. Shone y’s also contends that the

evidence preponder

ates against the jur

y’s award of

$1,250,000 in damages for Ms. Overstreet’s permanent impairment and/or disfigurement and that the trial court erre

d by declining to suggest a remittitur of

that damage award. We do not agree.

A.

T HE T RIAL C OURT ’ S D UTY AS T HIRTEENTH J UROR
Shoney’s insists that the

trial court’s comments at the hearing on the post-trial motions demonstrate that the trial courtwas inappropriately deferential to the jury’s verdictand that it did not independently evaluate the evidence. It bases thisassertion
on comments such as “pr oof that would

justify a jury in believing,” “the jury had an adequate basis,” and “the

jury could have

concluded.” While these comments reveal the trial court’s respect for the jury’s concl usion, they do not indicate that the trial court abrogated its responsibility as thirteenth juror.

The thirteen th juror rule requires the trial court to weigh the evidence independently, to determine the iss ues, and to decide whether the verdict is supported by t he evidence. See Ladd v. Honda M otor Co. , 939 S.W.2d at 10 5; Loeffler v. Kjellgren , 884 S. W.2d 463, 468-69 (Tenn. Ct. App. 1994). Although we may considerany comments made by a trial judge during

ahearing on the motion for new trial, see Ridings v. Norf

olk S. Ry. , 894 S.W.2d 281, 289 (Ten n. Ct. App. 1994), we must, in the final analysis , determine whe ther the trial cour

t properly review

ed the evidence and agreed or disagreed with the verdict. Se e Ladd v. Honda Mot or Co. , 939 S.W.2d at 104; Herbert v. Braze ale , 902 S.W.2d 933, 936 (Tenn. Ct. App. 1995). We cannot

review the accuracy of the trial court’s determination as thirteenth juror. See State v. Moats , 906 S.W.2d 431, 435 (Ten n. 1995).

Atthe hearing for the motion for new trial, the trial court stated that “[s]ince the time of this trial, I have re viewed the verdict

in my own mind and rev iewed the evidence of damages with relationship to the verdict on several different o ccasions.”-30-

The trial court added th

at it believed that th

e non-economic dama

ges far exceeded the economic damages in the case and that the injury had had a significant impac t on Ms. Overstreet. After considerin g all the elements

of damages, the trial court concluded thatit did not disagree w

ith the $2,013,000 verdict and that each element of damages
was supporte d by t he evidence and was within the range of reasonableness. After considering

the record as a w

hole, we have conc

luded that the

trial court compet

ently performed its role as thirteenth juror.

B.

T HE T RIAL C OURT ’ S R EFUSAL TO S UGGEST A R EMITTITUR
Shoney’s also contends that the trial judge should have suggested a remittitur. Itasserts that a $1,250,000 award for permanent disfigurement or impairm e nt is excessive be cause Ms. O verstreet suffer ed a loss of vision in only one eye and because the disfigurement of her left eye was minimal. We respectfully disagree. Like the trial court, we are impre sse d by the evidence of th e profound impact this injury has had on Ms. O

verstreet.
Acting as the thirteenth juror, the trial courtmay set aside a jury ’s verdict and
or der a new trial. See Hardesty v. Se rvice Merchandise Co. , 953 S.W.2 d 678, 68 1 (Te nn. Ct . App. 1997). Wh en the trial court f

inds that the amount of

the verdict is excessive or inadequate, it m

ay suggest a remittit

ur or an additur

in lieu of granting
anew trial. See Tenn. Code Ann. § 20-10-102 (1994); Hardesty v. Service Merchandise

Co., Inc. , 953 S.W.2d at 68 1. This procedure avoids the necessity o

f conducting a new trial with i ts added expense and de

lay. See Foster v. Am

con Int’l, Inc. , 621 S.W.2d 142, 147 (Tenn. 1981).

However, when a

trial court approves ajury verdict, appe llate courts may only review the recor

d to determine whethe

r it contains material evidence to support the jury’s verdict. See Tenn. R. App. P. 13(d); Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822, 823 (Tenn. 1994

); Whitaker v. Harm

on , 879 S.W.2d 865,

867 (Tenn. Ct. Ap p. 1994). Appellate courts d o not reweigh the evi

dence and consider w

here the preponderance lies. Instead, they determine whether there is any material evidence to support the verdict,

and, if there is,

they must

affirm the

judgment. See Reynolds v. Ozark Motor Li

nes, Inc., 887 S.W.2d at 823; Pullen v. Textron, Inc. , 845 S.W.2d 777, 780 (Tenn. Ct. App. 19 92).-31- The jury bears primar

y r esponsi bility for awarding damages in a personal injury action, followed closely by the trial c our t in its role as thirt eenth juror. See Coffey v. Fayette Tubul

ar Products , 929 S.W.2d 326, 328 (Ten n. 1996 ); Sholodge Franchise Sys., Inc. v. McKibbon Bros., Inc. , 919 S.W.2d 36, 41 (Tenn. Ct. A

pp . 1995). When a trial court approves a verdict awarding damages in a personal injury action, our review is subje ct to the rul e that if there is any material evidence to support the jury’s award,

it should not be

disturbed. See Hunter v. Burke , 958 S.W.2d 751, 757 (Tenn. Ct. App. 1997).

We have concluded that there is material evidence to support the jury’s award of $1,250,000 for perm

anent impairment a

nd disfigurement. S honey’s h as underestimated the significance of Ms. Overstreet ’s psychol og ical impairment a nd has minimized the effect

of her physical disf

igurement. Althou

gh this type of injury may not impact every person in such a profound way, in Ms.

Overstreet’s ca

se, the effects have bee

n far-reaching.

A former nursing instructor, who once evaluated Ms. Overstreet as a committed, exceptional, and pos itive stud en t, testified that she had lost these qualities since the injury. She observed that Ms . Overstreet no l onger bubbles with ent

husiasm and is now convinced that her career is over. Ms. Overstreet’s psychological problems have manifested themse lves in mistakes at w

ork, indecision

about whether she can adequately per

form her job, a sixty-pound weight ga in, and a lossof interest in daily activities. Ms. Overstreet continues to suff er from po st-traumatic stress syndrome, anxiety a

ttacks, and depres sion, even though she is no longer suicidal.

The timing of the accide nt intensified the psyc

hologi ca l impact of Ms. Overstreet’s injuries. It occurred just as Ms. Overstreet was ready to begin her new
career and her married life. She was about to realize her career goals. A

lthoughMs. Overstreet

c ontinues to have the intellectual ability and qualifications to pursue a graduate degree, she no longe

r has the confidence

and emotional stability that postgraduate nursing education would require. She testifi ed that she had wanted to pursue her master’s degree after a year of practical experience, but that she has now abandoned these plans because she doubts her abilities.
Along with the loss of vision, the disfigurement to Ms.

Overstreet’s le

ft eye is substantial. Because her

left eye is red, inflamed,

and smaller than her

right eye, the-32-

injury detracts from the

sym metry and be auty of Ms. Overst reet’s face. T

he eye appears as if

it is half-closed an

d it is obvious from even a

cursory glance that

her eye has been injured. T

his permanent disfig

urement to her appe

arance will conti

nue to negatively

affect Ms. Overstreet’s self-image for the rest of her life. The perm

anent impairment

a l so encompasses Ms. O verstreet’s vocat

ional disability. She

will be li mited in her career ch

oices and in the opportu

nity for advanceme

nt in her chose n vocation, because of both the lo ss of vision and the psych ological damage fr

om the injury.

In summary, we have concluded that the record contains material evidenc e to support the jury’s decision t o award Ms. Ove

rstreet $1,250,000

for permanent

injury and disfigurement. A

ccordingly, we do n

ot find that the trial courterred by declining either to set this awar d aside or to sugge st a remittitur.

VI.

We affirm the judgme

nt awarding Ms. O

verstreet $2,013, 000 in damages and remand the case to the

trial court for w

hatever further p

roceedings may be required. We tax the costs of this appeal to Shoney’s, Inc. and its surety for whic h execution, if necessary, may issue.

_____________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________ BEN H. CANTRELL, JUDGE

_________________________________ WILLIAM B. CAIN, JUDGE