Opinion
No. 3-623 / 02-1858
Filed October 29, 2003
Appeal from the Iowa District Court for Polk County, Richard G. Blane, II, Judge.
McGregor appeals the district court's damage award. REVERSED AND REMANDED.
Jeanne Johnson, Des Moines, for appellant.
Kermit Anderson of Finley, Alt, Smith, Scharnberg, Craig, Hilmes Gaffney, P.C., for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Kenneth McGregor, Sr. sued Hy-Vee, Inc. He claimed a store employee intentionally shoved a shopping cart into him, causing an injury to his right knee. A jury awarded McGregor damages of $1602.10, the exact amount of his past medical expenses. McGregor filed post-trial motions, claiming the jury's failure to also award damages for pain and suffering rendered the verdict inadequate and inconsistent with the evidence and mandated a new trial on damages. The district court denied the motions and this appeal followed.
Hy-Vee countered with a motion for judgment notwithstanding the verdict which is not at issue here.
A district court "may grant an aggrieved party a new trial when the jury awards excessive or inadequate damages or when the verdict is not sustained by sufficient evidence, or is contrary to law." Fisher v. Davis, 601 N.W.2d 54, 57 (Iowa 1999); see also Iowa R.Civ.P. 1.1004(4), (6). Our review of the court's ruling is for an abuse of discretion. Fisher, 601 N.W.2d. at 5.
In denying McGregor's motions, the district court stated:
This Court cannot find that the verdict is inconsistent with the law, the issues and the evidence. The jury could well have determined that Defendant's employee pushed the shopping cart into Plaintiff, that it was reasonable for Plaintiff to seek medical attention to see if any harm had been done, but that any problem was simply his arthritis, which pre-existed the incident and was not aggravated by the battery. Thus, the jury could have reasoned that the only damages Plaintiff was entitled to receive were his medical expenses for investigating whether he suffered any injuries related to the incident. In this way, the jury could have determined under these facts that Plaintiff was not entitled to pain and suffering damages.
We agree that the facts concerning who struck whom were highly contested. However, it was undisputed that McGregor experienced pain following the incident in the store. An emergency room physician noted his knee was "very painful with palpation over the medial aspect." She sent him home with instructions to use a knee immobilizer and a prescription pain killer. McGregor was later seen by an orthopedic surgeon who opined that he still had "catching and popping" in the knees. The surgeon suggested that "[d]irect blow injuries to the anterior aspect of the knee can occasionally cause symptoms for several months if not up to one year or more." McGregor's family physician testified that the store incident "caused pain and injury." He stated it was "possible to probable" that "the strike on the knee caused permanent damage or exacerbated or made worse osteoarthritis . . . ."
Given this undisputed evidence of pain following the shopping cart incident and the jury's award of $1602.10 which, to the penny, mirrored McGregor's medical expense itemization, we conclude the jury did not consideror include damages for pain and suffering. Therefore, the award did not "fairly and reasonably compensate an injured party for the injury sustained." Householder v. Town of Clayton, 221 N.W.2d 488, 493 (Iowa 1974). See also Fisher, 601 N.W.2d at 59 (concluding "it was illogical for the jury to award Fisher medical expenses to treat her neck injury and pain and then allow nothing for her pain and suffering."); Cowan v. Flannery, 461 N.W.2d 155, 160 (Iowa 1990) (stating ("[i]t is illogical to award past and future medical expense incurred to relieve headache, neck and back pain and then allow nothing for such physical and mental pain and suffering."). We reverse and remand for a new trial on damages only. See Witte v. Vogt, 443 N.W.2d 715, 716 (Iowa 1989) (noting remand for retrial on damages only was appropriate where jury verdict against defendant suggested he was totally at fault).