October 31, 1997

Record No. 961985






Melvin R. Hughes, Jr., Judge

Present: Carrico, C.J., Compton, Stephenson, [1] Lacy,
Hassell, Keenan, and Koontz, JJ.

In this appeal of a judgment entered in a personal injury
action, we consider whether a plaintiff, who received a jury
verdict for the exact amount of her medical and other special
damages, is entitled to a new trial.

Candace L. Bowers filed her motion for judgment against
Barbara A. Sprouse, seeking compensation for injuries she
received in an automobile accident. Before trial, Sprouse
admitted liability, and the case was tried before a jury on the
issue of damages only.

The plaintiff adduced the following evidence. The plaintiff,
who was driving her car, stopped and "was just waiting for
traffic to move" when she noticed the defendant’s car. The
defendant’s car collided into the rear of the plaintiff’s car.
Upon impact, the plaintiff was "flung forward and the
seatbelt grabbed [her] and yanked [her] backwards."

The plaintiff immediately felt pain, and she was taken to a
hospital. She was treated at the hospital’s emergency room and
was released that same day. The plaintiff was treated by her
family physician two or three days after the accident, and he
referred her to Dr. John M. Simpson, an orthopedic surgeon. The
plaintiff introduced in evidence, without objection, a
"Statement of Damages" in the amount of $2,479.85. Dr.
Simpson testified that the plaintiff had experienced lower back
pain as a result of a prior accident, and that her injury was
exacerbated as a result of her accident with the defendant.

The defendant vigorously cross-examined the plaintiff about
her injuries. For example, the defendant elicited on
cross-examination that: the plaintiff had complained of lower
back pain after she was injured in a prior accident; the
plaintiff did not recall an incident in January 1989 which
required her to seek treatment from a physician for lower back
pain; the plaintiff did not recall an incident in 1990 when she
fell down some steps and injured her back; and the plaintiff did
not remember an incident in 1993 when she injured her back while
"line dancing."

The jury considered the evidence and returned a verdict in
favor of the plaintiff for the exact amount of her medical
expenses and special damages. The trial court denied the
plaintiff’s motion to set aside the verdict and entered a
judgment confirming the jury’s verdict. The plaintiff appeals.

In Rome v. Kelly Springfield Tire Co., 217 Va.
943, 234 S.E.2d 277 (1977), we considered whether a trial court
erred in failing to set aside a jury verdict which was for the
exact amount of the plaintiff’s lost wages and medical expenses.
We stated:

"The verdict of the jury fixed [the plaintiff's] damages at . . . the exact amount of [the
plaintiff's] lost wages and medical expenses to the date
of trial as shown by the uncontroverted evidence. The
trial court’s damage instruction set forth seven elements
of damage which the jury should have considered in fixing
its award. The jury’s award appears to represent only two
of those seven elements. Substantial evidence was
introduced in support of the other elements of damage
mentioned in the instruction, viz., past and
future physical pain and mental anguish, disfigurement
and deformity, past and future inconvenience, future
medical expenses, and the effect of such injuries upon
[the plaintiff's] health. The verdict is therefore
inadequate and invalid as a matter of law because it
demonstrates the jury has disregarded the instruction on
damages. Obviously, the jury has failed to take into
consideration all of the proper elements of damages to
which the plaintiff was entitled under the


Id. at 948, 234 S.E.2d 281.

Both the plaintiff and defendant cite Rome in support
of their respective positions. [2]

Essentially, the plaintiff argues that the trial court erred
by failing to set aside the jury’s verdict and award her a new
trial because, she says, the jury’s award is inadequate as a
matter of law. The plaintiff contends that Rome is
controlling because the jury awarded her the exact amount of her
damages, and the defendant did not present any testimony which
contradicted the plaintiff’s evidence of damages. The defendant
responds that the plaintiff’s evidence of special damages was
contested throughout the trial, that a reasonable jury could have
believed that the plaintiff exaggerated the extent of her
injuries, and that it was highly unlikely that the plaintiff’s
injuries resulted from a minor traffic accident.

We are of opinion that the jury’s verdict for the exact amount
of the plaintiff’s medical and special damages is inadequate as a
matter of law. The jury’s verdict for the exact amount of the
plaintiff’s medical expenses and special damages indicates that
although the jury found the plaintiff was injured and had
incurred special damages, the jury, for whatever reason, failed
to compensate her for any other items of damage. Certainly, at a
minimum, this plaintiff experienced pain, suffering, and
inconvenience as a result of the defendant’s negligence and was
entitled to compensation for these elements of damage. [3]

Therefore, we hold that a jury award in a personal injury
action which compensates a plaintiff for the exact amount of the
plaintiff’s medical expenses and other special damages is
inadequate as a matter of law, irrespective of whether those
damages were controverted.

Accordingly, we will reverse the judgment of the trial court
and award the plaintiff a new trial on the issue of damages only.

Reversed and remanded.

JUSTICE LACY, dissenting.

I dissent from both the rule adopted and the result reached by
the majority.

I. The Rule

For over half a century, assertions that the amount of a jury
verdict in a personal injury case is inadequate as a matter of
law have been subject to the following principle:

[T]he verdict of a jury in personal injury cases will
not be set aside as inadequate or excessive unless it is
made to appear that the jury has been actuated by
prejudice, partiality or corruption, or that it has been
misled by some mistaken view of the merits of the case.

. . . .

Each case must be considered on its own merits and in
view of the peculiar facts of that case.


Glass v. David Pender Grocery Co., 174 Va. 196, 201, 5
S.E.2d 478, 480-81 (1939). This general principle has been
applied to cases like the instant case in which the amounts of
the jury verdict and of the special damages were identical or
very close. In those cases, the plaintiff argued that the verdict
was inadequate as a matter of law because the size of the verdict
showed that the jury ignored the court’s instruction to consider
all the elements of recovery, specifically pain, suffering, and

In Bradner v. Mitchell, 234 Va. 483, 362 S.E.2d 718
(1987), the seminal case on this aspect of inadequate jury
verdicts, the Court compared cases in which the jury verdicts
were held inadequate as a matter of law, Glass v. David Pender
Grocery Co.
, supra; DeWald v. King, 233 Va.
140, 354 S.E.2d 60 (1987); and Rome v. Kelly Springfield,
217 Va. 943, 234 S.E.2d 277 (1977), with cases in which the jury
verdicts were not set aside as inadequate, May v. Leach,
220 Va. 472, 260 S.E.2d 456 (1979); Brown v. Huddleston,
213 Va. 146, 191 S.E.2d 234 (1972); and Doe v. West, 222
Va. 440, 281 S.E.2d 850 (1981). The Court in Bradner
announced that the distinction between the two lines of cases,
"lies in the differing quality of the plaintiff’s evidence
of special damages." 234 Va. at 487, 362 S.E.2d at 720. Bradner
concluded that verdicts should be set aside as inadequate as a
matter of law, not because of the proximity between the amount of
the verdict and the special damages claimed, but because the
plaintiff’s evidence of special damages was uncontroverted and
complete, and, therefore, could not rationally be ignored or
disregarded by the fact finder. The rationale for this rule, as
explained in Bradner, was that such uncontroverted
evidence became a fixed part of the recovery amount and, if the
remaining amount of the award was insufficient to compensate the
victim for other elements of damage also established by the
evidence, such as pain and suffering, the verdict amount was of
necessity inadequate. Id.

Bradner went on to instruct that jury verdicts should
not be set aside as inadequate where the plaintiffs’ evidence of
special damages was "controverted, doubtful as to nature and
extent, or subject to substantial question whether attributable
to the defendant’s wrong or to some other cause." Id.,
362 S.E.2d at 720-21. The Court reasoned that in such cases the
the fact finder could conclude that the plaintiff was entitled to
less than the amount claimed as special damages and, thus, the
amount of the special damages cannot become a fixed part of the
recovery amount. Because the trial court cannot determine what
amount was awarded for other proven damages, such as pain and
suffering, the verdict cannot be held to be inadequate as a
matter of law. Id. at 487-88, 362 S.E.2d at 721.

Today, the majority discards this body of jurisprudence for a per
se rule. As stated by the majority, jury verdicts which
are identical to the amount claimed by the plaintiff as special
damages are inadequate as a matter of law, "irrespective of
whether those damages were controverted." [4] The
majority adopts this new rule without reference to, or rationale
for departing from, the principles established in our prior
cases. Nor does the majority indicate why the rationale of Bradner
underlying its focus on the quality of the evidence is not
applicable in these circumstances, or what rationale compels the
adoption of the new rule.

Perhaps the majority relies on a common sense belief that a
jury verdict in an amount identical to the amount of the special
damages means in all cases that the jury agreed that the
defendant caused injury to the plaintiff, but is only willing to
give the plaintiff the amount needed to cover his or her
out-of-pocket expenses. Thus, under the majority’s common sense
interpretation, the jury improperly compromised the verdict,
ignoring the plaintiff’s pain, suffering, and other
non-quantified damages.

Common sense tells me, however, that when there is evidence
controverting the cause of the injuries, the extent of the
injuries, or otherwise challenging the special damages, the
failure to award more than the special damage amount does not
mean that the jury ignored general damage evidence such as pain
and suffering. Rather, it means that the evidence raised
questions in the minds of the members of the jury as to whether
all the injuries claimed were caused by the defendant’s acts or
whether the injuries were as severe as the plaintiff claimed. In
such a case, even though the verdict is exactly equal to the
special damages, the amount was intended to cover both the
compensable special damages and general damages. In other words,
the existence of controverting evidence is the key to whether the
jury acted properly or produced a verdict based on an erroneous
understanding of the law or the instructions. In my opinion,
common sense does not provide any persuasive basis for adopting
the majority’s per se rule.

Perhaps the majority’s rationale for establishing a
"bright line" rule is that it will resolve confusion
and produce consistency in these cases. Again, I do not find this
rationale persuasive. First, neither the trial courts nor the
practicing bar are confused as to the principles to be applied in
considering challenges to jury verdicts under these
circumstances. As set out above, the relevant principles have
been operating for over 50 years and, for at least the last
decade, the existence of controverting evidence has unequivocally
been the touchstone in determining whether a jury verdict is
inadequate in these cases. As so often happens in the practice of
law, the difficulty is not in identifying the applicable legal
principle, but in applying that principle to the facts at hand.
Trial courts daily evaluate the evidence in ruling on motions and
are uniquely positioned to make those rulings. For that reason,
on appellate review we afford those decisions significant
deference. See Smithey v. Sinclair Refining Co.,
203 Va. 142, 148, 122 S.E.2d 872, 877 (1961). Thus, I do not
think the adoption of the majority’s rule can be justified
because of confusion over the proper principles to be applied or
any perceived inadequacy in the ability of trial courts to make
these determinations.

As for consistency, every personal injury case is unique, both
in its circumstances and in the evidence produced by both sides
to support competing interpretations of the facts. Under our
legal system, the desired consistency is in properly applying the
correct principles, not in the results attained. Thus, the goal
of eliminating confusion and seeking consistency in results, in
my opinion, does not justify the action of the majority today.

A third rationale for the majority’s rule could be to
facilitate the disposition of these cases. In other words, a per
se or bright line rule would make trying these cases more
efficient. Assuming juries will be instructed that they may not
return a verdict in the exact amount of the plaintiff’s special
damages, the rule would eliminate putting the parties to the time
and expense of litigating whether the verdict was inadequate and
calling a new jury to relitigate the damage issue in
circumstances where the trial court determined post trial that
the verdict was inadequate. However, if the rule is justified
based on facilitating the process surrounding claims of
inadequate jury verdicts, the practical effect of the rule in
this regard is severely limited.

Even if juries are instructed that they may not return a
verdict in the exact amount of the special damages, as I believe
they must be, juries will continue to return verdicts in amounts
close to the amount of special damages. The rule announced by the
majority, by its terms, will not apply to these close, but not
identical, jury verdicts, and trial courts will continue to
resolve claims of inadequate verdicts by applying the traditional
principles as set out in Bradner.

In summary, I cannot agree to adopt a per se or
bright line rule which has no jurisprudential foundation, stated
or perceived, is not needed to resolve confusion or
inconsistency, and will have limited application. [5]

II. The Result

I also dissent from the result reached in this case. First, I
believe the principles of Bradner control the analysis of
the case. Furthermore, the trial court exercises its discretion
in determining whether the amount of a jury verdict is inadequate
as a matter of law. Philip Morris Inc. v. Emerson, 235 Va.
380, 413, 368 S.E.2d 268, 286 (1988). On appeal, the judgment of
the trial court is reversed only upon a determination that the
trial court abused its discretion. Johnson v. Smith, 241
Va. 396, 400, 403 S.E.2d 685, 687 (1991). Applying these
principles, I would affirm.

As recognized by the majority, the record shows that the
defendant aggressively cross-examined the plaintiff’s witnesses
in order to challenge the plaintiff’s assertion that all of her
injuries resulted from the rear-end collision. In addition to the
evidence recited in the majority opinion, the defendant
introduced the original treatment notes of plaintiff’s physician
which indicated that she had suffered a back injury in a previous
accident involving a truck, that the injury had not been
completely resolved, and that the instant collision aggravated
that injury. The defendant also introduced evidence to show that
the force of the collision was minimal, that there was no
discernable damage to plaintiff’s car, and that no medical
treatment was undertaken at the scene of the collision. Finally,
the plaintiff admitted that, subsequent to the collision, she was
a passenger in an all-terrain vehicle which flipped over. This
evidence can only be considered as evidence controverting the
plaintiff’s claim that all her injuries were caused by the
rear-end collision.

The trial judge, in refusing to set aside the verdict as
inadequate, stated that the jury could have concluded that, in
the plaintiff’s fall from the all-terrain vehicle, she could have
hurt other parts of her body, including the injury involved in
this case, and thus, the jury "could have not attributed all
the damages to this accident and attributed the rest to pain and

The trial court, following the instruction of Bradner,
reviewed the evidence in the case to determine whether the
plaintiff’s evidence of special damages was uncontroverted and
determined that it was not. Thus, the trial court concluded that
the amount of special damages had not become a fixed part of the
recovery. Accordingly, the trial court held that the verdict was
not inadequate as a matter of law. Based on this record, I cannot
conclude that the trial court abused its discretion in denying
the plaintiff’s motion to set aside the jury verdict as
inadequate and, therefore, I would affirm the judgment of the
trial court.



[1] Justice Stephenson participated
in the hearing and decision of this case prior to the effective
date of his retirement on July 1, 1997.

[2] The plaintiff and the defendant
cite other authorities which, they say, support their respective
positions. Because of our view of this case, we decline to
undertake an exhaustive discussion of those authorities.
Moreover, we have discussed most of those authorities in DeWald
v. King, 233 Va. 140, 354 S.E.2d 60 (1987).

[3] The jury was instructed as




You must find your verdict for the plaintiff, and in
determining the damages to which she is entitled, you may
consider any of the following which you believe by the
greater weight of the evidence was caused by the
negligence of the defendant:


(1) any bodily injuries she sustained and their effect
on her health according to their degree and probable


(2) any physical pain and mental anguish she suffered
in the past;


(3) any disfigurement or deformity and any associated
humiliation or embarrassment;


(4) any inconvenience caused in the past;


(5) any medical expenses incurred in the past;


(6) any earnings she lost because she was unable to
work at her calling;


Your verdict should be for such sum as will fully and
fairly compensate the plaintiff for the damages sustained
as a result of the defendant’s negligence."

[4] I assume that the majority
intends that its new rule also requires that both special and
general damages were proven by the plaintiff.

[5] Apparently, the majority’s new
rule is unique. While many states follow the principle of Bradner,
that uncontroverted evidence of proven special damages becomes a
fixed part of the verdict, none appears to have adopted a rule
that a verdict equal to the special damages is per se
inadequate "irrespective" of whether there was
controverting evidence, as the majority does today. See generally
Todd R. Smyth, Annotation, Validity of Verdict Awarding
Medical Expenses to Personal Injury Plaintiff, but Failing to
Award Damages for Pain and Suffering
, 55 A.L.R. 4th 186, ”
1-4 (1987 & Supp. 1997).


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