Lee v. Pak

Filed 4/12/07 Lee v. Pak CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Elizabeth A. Grimes, Judge. Affirmed.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup; Law Offices of Marcus M. Baukol and Marcus M. Baukol for Defendant and Appellant.

Guzin & Steier and Lawrence N. Guzin for Plaintiff and Respondent.

* * * * * *

Defendant and appellant Nancy Pak appeals following a jury trial and judgment entered against her in the action brought by plaintiff and respondent Hyun Jung Lee (Lee). A jury awarded Lee damages in the amount of $1,032,399 for injuries she suffered after a gate on appellants premises fell on her. Appellant contends that the $672,640 award for noneconomic damages is excessive. We affirm. The award is supported by the evidence and is not so large that it indicates the jury was motivated by passion or prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

Lee and her husband Joon Heum Lee (Joon Lee) owned and operated a clothing manufacturing business as one of four tenants in a building owned by appellant.

On February 2, 2004, Lee arrived at work between 7:30 and 8:00 a.m. At some point during the morning, she left the building and walked outside toward the parking lot to retrieve her car to deliver some samples and merchandise. Usually, the parking lot gate was open. But on this occasion the gate was only a little bit open, so Lee tried to open it completely. At first, the heavy gate did not budge; she tried again because she did not see anyone nearby who could help her. When she pushed the gate, it moved a little and eventually opened.

The next thing that Lee remembered was waking up under the gate. When she first woke up, she did not feel any pain, but thought that maybe she had died. She then began screaming for help. Some of the other tenants responded. She then began to feel severe pain in her leg.

By the time Joon Lee arrived, the gate had already been lifted off of Lee. Lee looked almost dead when Joon Lee first saw her. An ambulance then took Lee to the emergency room at Martin Luther King Hospital, where Joon Lee met her. In the emergency room, Lee was cold and screaming about her pain.

Lee learned that her leg and ankle were broken. She stayed in the hospital for fours days and had surgery that kept her bedridden. The surgery involved the insertion of a rod to maintain the leg fractures in alignment. Lee received permanent scars from the surgery. After she returned home, her pain increased and she was unable to sleep or care for her family. Her in-laws moved in to care for her.

In March 2004, Lee and Joon Lee filed a complaint seeking damages for personal injury, premises liability and loss of consortium. Appellant answered, generally denying the complaints allegations and asserting several affirmative defenses.

A jury trial commenced in May 2005. At Lees request, the trial court dismissed Joon Lees loss of consortium claim with prejudice at the beginning of the trial.

With respect to liability, an engineer testified that the gate fell because it was lacking a small tab that would have prevented it from passing through the retaining structure and, further, that the absence of the tab would have been discovered through proper maintenance, including regular inspections of the gate. Other tenantsas well as appellants fathertestified that the gate had fallen over at least once before it fell on Lee.

With respect to damages, orthopedic surgeon Fred Farhad Hafezi, M.D., testified that he examined Lee on eight separate occasions to determine the scope of the injuries she sustained as a result of the gate falling on her. Dr. Hafezi first saw Lee on February 24, 2004. She still had a leg cast and complained of pain in multiple areas. Dr. Hafezi diagnosed Lee as having a shattered fracture of the leg into the ankle joint, a sprained neck, injury to the right upper cervical (neck) joints and sprained left index finger. By the time of Lees second examination in April 2004, Dr. Hafezi found that Lees neck had worsened in that her range of motion had decreased and she had lost the normal curvature of her neck and low back. The range of motion of Lees ankle and knee had also decreased. At that time he also discovered a fibroma on her right forearm, which is a growth resulting from a ruptured muscle that could be corrected by a surgical tendon graft. During the next visit in May 2004 Dr. Hafezi observed that Lees index finger appeared to be locking, which could require surgical correction. The range of motion of her ankle continued to decrease.

During Lees June 2004 examination, Dr. Hafezi observed that Lees fractured leg was not healing properly and opined that Lee would have permanent numbness on the outside of her left leg. In August 2004 Lee received cortisone injections in her neck and ankle, and Dr. Hafezi performed a remedial procedure designed to stretch those areas. He also observed that her index finger had worsened. By October 2004, Dr. Hafezi saw improvement in virtually all aspects of Lees condition. However, he opined that Lee had begun to suffer from early arthritis as a result of her injuries. Dr. Hafezi also opined with a hundred percent certainty that Lee would require ankle surgery to both shave down her cartilage and remove the surgically-inserted rod and screws, but further opined that the surgery would not result in permanent improvement and that Lee would eventually require a total ankle replacement. In December 2004, Dr. Hafezi observed significant atrophy of Lees right shoulder wing muscles, opined that there was a 70 percent chance that Lee would require surgery to relieve the nerve compression causing the atrophy and noted that surgery would result in only partial improvement of her condition.

During the last examination in April 2005, Dr. Hafezi found that Lees left ankle remained unstable; that her knee remained painful and unbalanced, and would require surgical correction and likely replacement; and that nerve pressure remained around her neck likely requiring surgical correction. Dr. Hafezi gave estimates of the cost of probable future surgeries which totaled over $275,000. Finally, Dr. Hafezi opined that Lee would suffer from a number of permanent injuriesi.e., conditions that could not be remedied through surgeryincluding [w]eakness and loss of sensation of the left leg; the arthritis of the left ankle; the drooping of the right shoulder, with weakness and some loss of muscle; the dysfunction of the right shoulder, and being able to throw, do heavy things, lift overhead, pull and push. According to Dr. Hafezi, Lees permanent injuries further included weakness in the knee when Lee may attempt to jump or run, and pain in Lees knee, ankle, shoulder and neck.

Lee testified that her pain seemed to be getting worse, not better. Both of her legs and her neck hurt constantly, and she often had headaches. She had tried some pain relievers, but suffered from stomachaches as a result. Lee further testified that she had neither cooked nor cleaned since receiving her injuries. Lee and Joon Lee both testified that before suffering the injuries Lee was a sweet mother to their two children and very involved in the childrens school and the community. Lees previous activities included participating in sports, coaching her daughters basketball team and serving as the PTA president of her childrens school and as the president of her churchs volunteer organization. Since her injuries, Lee could not do anything with or for the children, which made Lee feel angry and the children feel sad. Since the accident, Lees children have felt nervous and miserable around her and fear that any showing of physical affection will cause Lee pain. Lee no longer cared about community activities. She lacked energy, smoked a lot, had nightmares, complained about her pain and no longer had sexual relations with her husband because of her pain.

Lees treating psychologist similarly testified that Lee said she was in a great deal of pain because of her injuries and that she did not feel like she wanted to go on with her life. Lee also told her that she was afraid, depressed, confused, sad and upset about what had happened to her. Lee continued to have nightmares and other sleep problems, as well as difficulty walking.

At the conclusion of the five-day trial, the jury returned a verdict finding that appellant was negligent and that her negligence was a substantial factor in causing Lees injuries. The jury awarded Lee $59,159 for past economic loss, $300,600 for future economic loss, $72,640 for past noneconomic loss and $600,000 for future noneconomic loss, for a total award of $1,032,399.

In June 2005, the trial court entered judgment in accordance with the verdict. Appellant thereafter moved for a new trial on several grounds, including excessive damages. In support of her excessive damages argument, appellant submitted a compilation of California jury verdicts from the past two and one-half years from cases involving soft tissue and shoulder injuries and broken legs. The compilation showed an average damages award of $58,714.80 for those injuries.

The trial court denied the motion, ruling that [t]he jury verdict was supported by the evidence at trial, and it was not excessive in light of the uncontradicted evidence. This appeal followed.

DISCUSSION

Appellants only challenge to the judgment concerns the noneconomic damages award. She contends that it is not supported by substantial evidence and that it is contrary to jury awards in comparable cases.

The standard of review governing a claim of excessive damages is well established. The amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506507; accord, Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078; see also Neumann v. Bishop (1976) 59 Cal.App.3d 451, 491 [To say that a verdict has been influenced by passion and prejudice is but another way of saying that the verdict exceeds any amount justified by the evidence].) In assessing a claim that the jurys award of damages is excessive, we do not reassess the credibility of witnesses or reweigh the evidence. To the contrary, we consider the evidence in the light most favorable to the judgment, accepting every reasonable inference and resolving all conflicts in its favor. [Citation.] (Westphal v. Wal-Mart Stores, Inc., supra, at p. 1078.) There are no fixed or absolute standards by which an appellate court can measure in monetary terms the extent of the damages suffered by a plaintiff as a result of the wrongful act of the defendant. The duty of an appellate court is to uphold the jury and trial judge whenever possible. (Seffert v. Los Angeles Transit Lines, supra, at p. 508.)

Applying these principles here, we see no basis to disturb the jurys noneconomic damages award. The law does not prescribe a definite standard or method to calculate compensation for pain and suffering; the jury merely is required to award an amount it finds reasonable in light of the evidence. (Westphal v. Wal-Mart Stores, Inc., supra, 68 Cal.App.4th at p. 1080.) Though appellant argues that the award is unsupported because there was no evidence that Lee required prescription pain medication or that she was incapacitated, this argument ignores the evidence of the injuries she actually sustained. Uncontradicted evidence established that Lees life was permanently altered by the injuries she sustained as a result of the gate falling on her. From a physical standpoint, Lee would likely require several future surgeries and, even then, continue to suffer permanent weakness of and pain in her knee, ankle, shoulder and neck. Emotionally, Lees relationship with her family had deteriorated and Lee had been unable to involve herself in any of the multiple activities she had enjoyed prior to suffering injury.

These circumstances are akin to those in Fontaine v. National R.R. Passenger Corp. (1997) 54 Cal.App.4th 1519, where the court rejected the defendants argument that a $1.5 million noneconomic damages award was the result of passion or prejudice. There, the plaintiff suffered a shattered wrist bone; underwent five surgeries to repair it; sustained permanent injuries in that she became unable to fully extend or raise her wrist or make a fist; lost the ability to enjoy certain activities, including sailing and playing musical instruments; and remained in constant pain. (Id. at p. 1532.) In view of this evidence, which the court summarized as five surgeries, permanent disability, inability to perform routine tasks without assistance, and constant pain, the court affirmed the noneconomic damages award. (Ibid.)

The uncontradicted evidence here likewise established that Lee had already had surgery and would likely require future surgeries, suffered permanent disabilities, was unable to perform routine tasks such as cooking and cleaning, and was in constant pain. Given this evidence, we cannot say, as a matter of law, that [the $672,640 award] is so high that it shocks the conscience and gives rise to the presumption that it was the result of passion or prejudice on the part of the jurors. (Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d at p. 509; accord, Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 596 [noneconomic damage award of $1 million for emotional distress the plaintiff suffered as a result of workplace harassment not excessive where the award does not shock the conscience or suggest the jury was anything other than objective in considering the evidence].) Substantial evidence supported the noneconomic damages award.

Our conclusion disposes of appellants related claim that the verdict exceeds the range of noneconomic damages awards in comparable cases. The court in Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d 498 explained the limited utility of considering comparable awards: While the appellate court should consider the amounts awarded in prior cases for similar injuries, obviously, each case must be decided on its own facts and circumstances. Such examination demonstrates that such awards vary greatly. [Citation.] Injuries are seldom identical and the amount of pain and suffering involved in similar physical injuries varies widely. These factors must be considered. [Citations.] Basically, the question that should be decided by the appellate courts is whether or not the verdict is so out of line with reason that it shocks the conscience and necessarily implies that the verdict must have been the result of passion and prejudice. (Id. at p. 508; see also Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65, fn. 12 [For a reviewing court to upset a jurys factual determination on the basis of what other juries awarded to other plaintiffs for other injuries in other cases based upon different evidence would constitute a serious invasion into the realm of factfinding].)

Appellant contends that the noneconomic damages award here is out of line with the jury awards reflected in the 40 comparable cases she submitted in support of her motion for a new trial. As indicated by the highlighted search terms appearing in those cases, appellant compiled jury verdicts for soft tissue and shoulder injuries and broken leg[s]. The verdicts in those cases ranged from $112 to $1,072,474. After reviewing the cases, the trial court denied the motion for a new trial on the ground that the uncontradicted evidence supported the jury verdict and it was therefore not excessive. Appellant makes no effort to demonstrate how the trial court abused its discretion in reaching this conclusion. (See City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871872 [denial of a new trial motion brought on the ground of excessive damages is reviewed for an abuse of discretion].) Indeed, none of the cases submitted by appellant involved circumstances comparable to the uncontradicted evidence that Lee presented concerning the dramatic change in her relationships, lifestyle and abilities caused by the injuries she sustained as a result of appellants negligence. The comparable jury verdicts relied on by appellant afford no basis for reversal of the noneconomic damages award. (Cf. Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 407 [grant of a new trial reversed where the trial judges personal opinion based on the ranges of awards in other cases does not show the jury should have clearly reached a different verdict in this case and is therefore an irrelevant consideration, not a lawful basis, for granting the new trial order].)

Nor do the two appellate decisions relied on by appellant provide any basis for reversal. In Mondine v. Sarlin (1938) 11 Cal.2d 593, the plaintiff suffered severe burns on the right half of his body as a result of the defendants negligence. The appellate court reduced the jurys $20,000 noneconomic damages award to $10,000 on the basis that it is apparent that practically the only permanent injury which respondent has sustained is the disfigurement of the right side of his body and the partial impairment of the use of his right hand. There is no medical testimony that the burns he received had any permanent deleterious effect upon his health or will produce serious consequences in the future. (Id. at p. 600.) The court reasoned that these circumstances raised a presumption that the award was the result of passion or prejudice and not a fair consideration of the facts concerning the injuries that the plaintiff suffered. (Ibid.) In Torres v. Southern Pacific Co. (1968) 260 Cal.App.2d 757, the jury awarded $60,500 to the plaintiff for shoulder injuries he suffered during a workplace accident. The trial court granted a new trial on the ground of excessive damages, reasoning that the award was the result of passion or prejudice because it was unsupported by the evidence. (Id. at pp. 763765.) After reviewing the evidenceand specifically the absence of evidence supporting a noneconomic damages awardthe appellate court concluded that the trial judge in the exercise of judicial discretion properly held that the award of $60,500 was contrary to the weight of the evidence and was excessive. (Id. at p. 764.)

As aptly stated in Buswell v. City & County of San Francisco (1948) 89 Cal.App.2d 123, 131: While a comparison of verdicts upheld in other cases is of value, it is not conclusive in view of the change in the value of the dollar and the difficulty of finding comparable injuries. Indeed, the cases cited by appellant are only superficially similar to the matter before us to the extent they involve plaintiffs suffering personal injuries requiring remedial surgery. Unlike here, neither of these cases involved evidence that the plaintiffs injuries had a negative impact on their emotional state, community involvement or familial relationships. Moreover, as noted earlier, when we examine verdicts in other cases in order to determine whether the award here was excessive, we find that the facts supporting the $1.5 million noneconomic damages award in Fontaine v. National R.R. Passenger Corp., supra, 54 Cal.App.4th at page 1532 provide an accurate basis for comparison. (See also Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 332, 346347 [noneconomic damage award of $850,000 for injuries sustained in an automobile accidentreduced by the plaintiffs 40 percent contributory negligence to $510,000held not excessive where the evidence showed that the plaintiff had been unable to work and would suffer permanent disabilities as a result of the accident].)

Finally, the recent case of Buell-Wilson v. Ford Motor Co. (2006) 141 Cal.App.4th 525, cited by appellant in her reply brief, provides no assistance to her. There, the jury awarded $105 million in noneconomic damages to the plaintiff. On a motion for new trial, the trial court reduced the award to $65 million and the appellate court further reduced the award to $18 million on the grounds it was unsupported by the evidence and the record demonstrated that it was the result of passion or prejudice. According to the evidence, the plaintiff wife and mother had become a paraplegic, suffered from constant pain and required constant care from her husband. (Id. at p. 549.) The court was not persuaded that the award of out of line when compared with other cases, but rather, determined that the most important factor showing the award was excessive was evidence indicating that the jury had acted out of improper emotions by awarding noneconomic damages of more than 13 times what the plaintiffs counsel had sought. (Id. at pp. 552553.) Here, in sharp contrast, the jury awarded less than one third of the over $2 million in noneconomic damages that Lees counsel requested during closing argument. The record thus fails to indicate that the jury did anything other than reasonably consider the evidence before it.

On the basis of the uncontradicted evidence that Lee presented concerning her injuries and their deleterious effects on her life, we cannot conclude that the $672,640 noneconomic damages award shocks the conscience and suggests passion or prejudice on the part of the jury.

DISPOSITION

The judgment is affirmed. Respondent is awarded her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

DOI TODD

We concur:

_______________________, J.

ASHMANN-GERST

_______________________, J.

CHAVEZ

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