Linville v. Moss
Annotate this CaseJanuary 1993 Term
__________
No. 21263
__________
ELLEN ROXANNA LINVILLE, ADMINISTRATRIX OF
THE ESTATE OF JACK K. LINVILLE,
Plaintiff Below, Appellant,
v.
JOHN W. MOSS III, and GUEST TRUCKING COMPANY, INC.
Defendants Below, Appellees
_______________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Paul Zakaib, Jr., Circuit Judge
Civil Action No. 89-C-1924
AFFIRMED IN PART;
REVERSED IN PART;
REMANDED
______________________________________________
Submitted: January 19, 1993
Filed: July 22, 1993
J. Timothy DiPiero
Franklin S. Fragale, Jr.
Lonnie C. Simmons
DiTrapano & Jackson
Charleston, West Virginia
Counsel for Appellant
Charles E. Pettry, Jr.
Goodwin & Pettry
Charleston, West Virginia
Counsel for Appellee John Moss III
Daniel R. Schuda
Steptoe & Johnson
Charleston, West Virginia
Counsel for Appellee Guest Trucking Co., Inc.
CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "We will not find a jury verdict to be inadequate unless
it is a sum so low that under the facts of the case reasonable men
cannot differ about its inadequacy." Syl. Pt. 2, Fullmer v. Swift
Energy Co., Inc., 185 W. Va. 45, 404 S.E.2d 534 (1991).
2. "In an appeal from an allegedly inadequate damage award,
the evidence concerning damages is to be viewed most strongly in
favor of the defendant." Syl. Pt. 1, Kaiser v. Hensley, 173 W. Va.
548, 318 S.E.2d 598 (1983).
3. "A verdict of a jury will be set aside where the amount
thereof is such that, when considered in the light of the proof, it
is clearly shown that the jury was misled by a mistaken view of the
case." Syl. Pt. 3, Raines v. Faulkner, 131 W. Va. 10, 48 S.E.2d 393 (1947).
4. "In a civil action for recovery of damages for personal
injuries in which the jury returns a verdict for the plaintiff
which is manifestly inadequate in amount and which, in that
respect, is not supported by the evidence, a new trial may be
granted to the plaintiff on the issue of damages on the ground of
the inadequacy of the amount of the verdict." Syl. Pt. 3, Biddle
v. Haddix, 154 W. Va. 748, 179 S.E.2d 215 (1971).
5. The viability of the Freshwater v. Booth, 160 W. Va. 156,
233 S.E.2d 312 (1977), analytical framework for types 2 and 3 cases
is limited by the advent of comparative negligence, because it is
no longer necessary to look behind the verdict form on appeal to
determine the jury's view on liability. Freshwater types 1 and 4,
which themselves are close siblings, continue to exist based on a
court's inherent right to set aside a verdict when it is not
supported by the evidence.
6. In categorizing future cases of alleged verdict
inadequacy, the concepts which underlie Freshwater v. Booth, 160 W.
Va. 156, 233 S.E.2d 312 (1977), types 1 and 4 remain viable.
Where, despite precise assessment of fault by a jury, a type 2
situation still exists, in which it is clear to a reviewing court
that under all the evidence the jury must have been confused on
liability, a case may be remanded on all issues.
Workman, Chief Justice:
This is an appeal by Ellen Roxanna Linville, as administratrix
of the estate of her deceased husband Jack K. Linville, from a
November 5, 1991, order of the Circuit Court of Kanawha County
denying the Appellant's motion to set aside the jury verdict and
award a new trial on all issues, or, in the alternative, on the
issue of damages. We affirm the decision of the jury regarding the
allocation of fault, but we reverse and remand for a new trial on
the issue of damages.
I.
On September 5, 1988, at approximately 8:00 p.m., Michael
Brown, a truck driver for Appellee Guest Trucking Company, Inc.,
parked his tractor trailer on the berm of Route 60 in Hurricane,
West Virginia, across the road from Kim's Quik Mart. After making
inquiries in the store concerning directions to his destination,
Mr. Brown attempted to make a U-turn by pulling the tractor trailer
into Kim's Quik Mart. As Mr. Brown maneuvered his truck into the
parking lot, Jack Linville exited Kim's Quik Mart and offered his
assistance. According to testimony at trial, Mr. Linville stood on
the driver's side of the truck, determined that there was no
traffic coming, and motioned for Mr. Brown to back out onto Route
60. Mr. Brown was allegedly standing near the center line when
Appellee John W. Moss, driving his vehicle west on Route 60, struck
and fatally injured Mr. Linville.
Mr. Moss testified that he had consumed a "couple of beers"
earlier in the day, and John Wageman, a Putnam County EMT
Firefighter, testified that he noticed an odor of alcohol on Mr.
Moss. Mr. Moss, contrary to the testimony of other witnesses to
the accident, asserted that Mr. Linville was three to four feet
over the center line and in the path of Mr. Moss' vehicle at the
time of impact. Mr. Moss also testified that he had swerved to
miss Mr. Linville but was unable to avoid the collision. Members
of the Putnam County Sheriff's Department, however, testified that
they discovered no evidence indicating any evasive action taken by
Mr. Moss.
With regard to normal truck safety practices, Mr. Gary Huey
testified that Mr. Brown should not have attempted to back onto the
highway. Moreover, Mr. Huey explained that Mr. Brown had a duty to
seek out information regarding a safe turning area and to avoid
making a U-turn or backing out onto Route 60.
With regard to damages, the Appellant testified that Mr.
Linville, age forty-one at the time of his death, had been
unemployed and had assumed most of the responsibilities of the
household and the care of his and his wife's son, Teddy, twelve
years of age at the time of the accident. The Appellant testified
to $3,719 in funeral expenses and presented the testimony of
professor of economics Donald R. Adams, Jr., regarding the
replacement loss of Mr. Linville's household services. Mr. Adams
explained that the value of replacement services was $367,692, or
$240,180 after reduction to present value. Mr. Adams also
explained that Mr. Linville was incapable of sustaining gainful
employment due to his learning disability and his fifth grade
education.
The jury returned a verdict of $4,000 for reasonable funeral
expenses, assessing forty-nine percent negligence to Mr. Linville,
twenty-six percent negligence to Mr. Moss as the driver of the car,
and twenty-five percent negligence to Guest Trucking Company.See footnote 1 The
jury awarded nothing to decedent's wife and son for loss of
services, sorrow, mental anguish, or companionship. Subsequent to
trial, the Appellant moved to set aside the verdict and to award a
new trial on all issues or simply on the issue of damages. The
lower court denied that motion, holding that under Freshwater v.
Booth, 160 W. Va. 156, 233 S.E.2d 312 (1977), the jury's verdict
was a defendant's verdict perversely expressed and therefore should
be affirmed.
II.
Under the Freshwater framework for analysis of inadequate jury
awards of damages, it must first be determined whether a verdict is
indeed inadequate. Then it must be determined whether a new trial
should be granted on liability and/or damages or whether the
verdict should be upheld as a defendant's verdict perversely
expressed.
The lower court classified this case as a type 3 Freshwater
case. To have satisfied the definition of a type 3 case pursuant
to the Freshwater analysis, damages must have been "so inadequate
as to be nominal under the evidence in the case." 160 W. Va. at
163, 233 S.E.2d at 316. By classifying this verdict as a type 3
case, therefore, the lower court implicitly held that the award of
damages was inadequate.
We agree with the lower court's apparent conclusion regarding
the inadequacy of the damages. In syllabus point 2 of Fullmer v.
Swift Energy Co., 185 W. Va. 45, 404 S.E.2d 534 (1991), we set
forth the general standard for assessing the adequacy of an award.
"We will not find a jury verdict to be inadequate unless it is a
sum so low that under the facts of the case reasonable men cannot
differ about its inadequacy." Id. at 46, 404 S.E.2d at 535. In
the present case, the jury awarded only $4,000 for funeral
expenses. It awarded nothing for mental anguish, nothing for
sorrow or loss of companionship to either the decedent's wife or
son, and nothing for the loss of services which were valued by the
Appellant's expert to be in excess of $200,000.See footnote 2
In syllabus point 1 of Kaiser v. Hensley, 173 W. Va. 548, 318 S.E.2d 598 (1983), we explained that "[i]n an appeal from an
allegedly inadequate damage award, the evidence concerning damages
is to be viewed most strongly in favor of the defendant." Accord,
Syl. Pt. 6, Dowey v. Bonnell, 181 W. Va. 101, 380 S.E.2d 453
(1989); Syl. Pt. 1, Maynard v. Napier, 180 W. Va. 591, 378 S.E.2d 456 (1989). Even when so viewed, the evidence in this matter still
establishes that the decedent had made significant contributions to
his family's household responsibilities. Mr. Linville's immediate
family consisted of his wife and son Teddy, twelve years of age at
the time of his father's death. The Appellant testified
extensively about the close relationship between Mr. Linville and
Teddy. Although Mr. Linville was not employed outside the home,
Mr. Adams, as the Appellant's economic expert, testified that the
replacement loss of Mr. Linville's household services was $367,692,
or $240,180 after reduction to present value. Despite this
testimony, the jury awarded no damages for mental anguish, sorrow
and loss of companionship, or loss of services. The Appellant was
awarded only $4,000 in funeral expenses.
The Appellees contend that the $4,000 award was adequate in
view of the testimony from the Appellant which indicated that prior
to her husband's death, he had spent a significant portion of many
days at Kim's Quik Mart. The Appellees believe that such
testimony, despite other testimony regarding the decedent's
activities of cleaning, preparing meals, and caring for Teddy,
justifies the jury's conclusion of no economic loss for household
services. The Appellees presented no independent economic evidence
regarding the replacement value of the decedent's services. The
Appellees did, however, challenge Mr. Adams' conclusions based upon
his reliance upon figures contained in a survey conducted in 1982
and based upon his failure to speak with neighbors or family
members of the decedent. The Appellees' primary contention
regarding damages is that most of the Appellant's evidence of
damages was speculative and that the jury was entitled to reject
it.
Under the particular facts of this case, we are compelled to
conclude that the jury's award of only the funeral expenses must
have been based upon some misinterpretation of the law of damages.
"A verdict of a jury will be set aside where the amount thereof is
such that, when considered in the light of the proof, it is clearly
shown that the jury was misled by a mistaken view of the case."
Syl. Pt. 3, Raines v. Faulkner, 131 W. Va. 10, 48 S.E.2d 393
(1947). We also explained in syllabus point 3 of Biddle v. Haddix,
154 W. Va. 748, 179 S.E.2d 215 (1971), as follows:
In a civil action for recovery of damages
for personal injuries in which the jury
returns a verdict for the plaintiff which is
manifestly inadequate in amount and which, in
that respect, is not supported by the
evidence, a new trial may be granted to the
plaintiff on the issue of damages on the
ground of the inadequacy of the amount of the
verdict.
While we must refrain from substituting our judgment for that of
the jury regarding damages, it must also be recognized that we are
faced with the death of a forty-one year-old husband and father
who, while not employed outside the home, contributed to his family
through a variety of other means. We believe that the $4,000
verdict in this civil action was manifestly inadequate in amount
and wholly unsupported by the evidence, even when viewed in a light
most favorable to the Defendants.
III.
In Freshwater, we identified four types of cases wherein
allegations of inadequacy are made. Under Freshwater, the category
to which a case belongs determines the resolution on appeal. In
the syllabus of Freshwater, we explained:
In a tort action for property damage and
personal injuries this Court will set aside
the jury verdict and award a new trial on all
issues where: (1) the jury verdict is clearly
inadequate when the evidence on damages is
viewed most strongly in favor of defendant;
(2) liability is contested and there is
evidence to sustain a jury verdict in favor of
either plaintiff or defendant; and (3) the
jury award, while inadequate, is not so
nominal under the evidence as to permit the
court to infer that it was a defendant's
verdict perversely expressed.
160 W. Va. at 156, 233 S.E.2d at 313. We identified the following
four types of cases: type 1 "is where the plaintiff would have
been entitled to a directed verdict on liability as a matter of
law, and the damages are inadequate even when viewed most strongly
in favor of the defendant." Id. at 160, 233 S.E.2d at 315. The
proper remedy in a type 1 case is a remand on the issue of damages
only. Id. A type 2 case "is one where liability is strongly
contested and the award of damages is clearly inadequate if
liability were proven." Id. The proper remedy in a type 2 case is
remand on all issues. 160 W. Va. at 162, 233 S.E.2d at 316. A
type 3 case "is the defendant's verdict perversely expressed and
involves a factual situation in which liability is either tenuous
or at least strongly contested by the defendant and the award of
damages is so inadequate as to be nominal under the evidence in the
case." Id. at 163, 233 S.E.2d at 316. The proper remedy in a type
3 case is to affirm the verdict. Id. In type 4 cases,
[W]hile the plaintiff would not be entitled to
a directed verdict on the matter of liability,
the issue of liability has been so
conclusively proven that an appellate court
may infer that the jury's confusion was with
regard to the measure of damages and not to
liability. In this type of case an appellate
court can feel justified in remanding the case
for a new trial on the issue of damages alone
because it would be unfair to put the
plaintiff to the expense and aggravation of
proving liability once again when he has been
denied a proper and just verdict by the
caprice and incompetence [sic] of a particular
jury.
160 W. Va. at 164, 233 S.E.2d at 317. The proper remedy in a type
4 case is to remand for a new trial on the issue of damages. Id.
When the question of inadequacy was posed to the circuit
court, it determined that this was a type 3 case where liability
was tenuous and damages awarded were only nominal, thereby
circumventing the need to explore further the basis for the
inadequacy of the award. Simply put, if this case was indeed a
type 3 case as the circuit court determined and as the Appellees
now argue, then it was a defendant's verdict perversely expressed,
and under Freshwater the circuit court correctly affirmed. The
Appellants, on the other hand, argue that this was a type 2 case
where liability was strongly contested and damages were clearly
inadequate. In a type 2 case, an appellate court cannot infer from
the verdict alone whether the jury was confused on liability or
damages alone, and under Freshwater, it should be remanded on all
issues.
Obviously, it is difficult to clearly distinguish type 2 and
type 3 cases. Freshwater drew the distinction in this fashion:
In a type 2 case liability is also hotly
contested, but there the award of damages,
while inadequate, is by no means nominal. A
type 2 case is distinguished from a type 3
case or defendant's verdict perversely
expressed by the fact that an appellate court
cannot determine whether the inadequacy of the
verdict were a function of a misunderstanding
about the law of liability or the law of
damages. Conversely a type 3 case or
defendant's verdict perversely expressed is
identified by the nominal award of damages
which permits an appellate court reasonably to
infer that the error was made on liability
rather than on damages. Litigants will
continue to argue about what the term "nominal
award under the facts of the case" means, yet
if we could define it more precisely, the job
of judges could be done by computers.
160 W. Va. at 163-64, 233 S.E.2d at 316-17.
Although on first glance this case might appear to revolve
around an inquiry into the Freshwater typologies, we also must
examine the far broader issue of whether the Freshwater framework
retains continued viabilitySee footnote 3 in light of the advent of principles
of comparative negligence.See footnote 4
In the Freshwater case, Justice Neely was insightful in his
description of the types of inadequate damage awards and the real
reason behind their adoption:
The common thread which connects these
four types of jury awards is a sum which is so
low under the facts of the case that
reasonable men cannot differ about its
adequacy. Whenever a jury is called upon to
compensate a litigant for pain, suffering,
inconvenience, humiliation, or a host of other
intangibles, it has long been accepted in
practice, if not in the theory of jury
instructions, that the jury takes into
consideration relative degrees of fault in
awarding compensation.
160 W. Va. at 165, 233 S.E.2d at 317. In Bradley, we finally
addressed that reality in adopting principles of comparative
negligence.
Although we have since continued to utilize the Freshwater
framework,See footnote 5 it is clear that it is of limited usefulness. Prior
to the introduction of comparative negligence principles, this
Court, upon review of an inadequate award of damages by a jury, was
compelled to determine the basis for such inadequacy without
benefit of a quantified assessment of fault. For example, the
concept of a defendant's verdict perversely expressed was necessary
because under the former doctrine of contributory negligence, even
the slightest negligence by a plaintiff would prevent recovery.
Where a jury awarded a nominal sum to a plaintiff, it could be
assumed that the jury had attempted to compensate the plaintiff at
least in some limited fashion even though the jury may have
perceived the plaintiff to be guilty of some degree of negligence.
Recognizing that potential, the type 3 category was devised to
permit appellate approval of what could reasonably be assumed to be
the jury's intent.
With the emergence of concepts of comparative negligence, a
jury must assess the negligence of each party and assign a specific
percentage of fault to each party as it deems appropriate. See
Bradley, 163 W. Va. at 343, 256 S.E.2d at 885-86. In Freshwater,
the result of a type 3 determination was to affirm an otherwise
viable and fair decision of a jury to award only a nominal amount
to a plaintiff who had some degree of fault by making the
assumption that it was a defendant's verdict perversely expressed.
With the advent of comparative negligence, we no longer need to
make any such assumption. The jury is now presented with the
opportunity to make its decision regarding the allocation of fault
perfectly clear.
Similarly, type 2, where liability was strongly contested and
damages clearly inadequate (but not sufficiently so to be
classified as nominal), created a method for reviewing inadequate
verdicts where the appeal court could not discern from the verdict
alone whether the jury was confused about liability or damages, and
thus the case was remanded on both. The obvious benefit of
comparative negligence in reviewing such cases is that it is no
longer necessary for this Court to speculate as to whether the jury
was confused on the issue of liability.
Thus, the viability of the Freshwater analytical framework for
types 2 and 3 cases is limited by the advent of comparative
negligence, because it is no longer necessary to look behind the
verdict form on appeal to determine the jury's view on liability.
Freshwater types 1 and 4, which themselves are close siblings,
continue to exist based on a court's inherent right to set aside a
verdict when it is not supported by the evidence. In type 1, for
instance, liability is so clear that the plaintiff would have been
entitled to a directed verdict. Freshwater, 160 W. Va. at 160, 233 S.E.2d at 315. As explained in Freshwater, type 1 is the "easiest
type of inadequate jury award" and is a type in which "an appellate
court need not agonize about reversing and remanding for a new
trial on the issue of damages alone. . . ." Id.
The type 4 case, similar in many respects to the type 1 case
and distinguished only by the degree of liability, is also not
impacted in such a major way by the advent of comparative
negligence. "[W]hile the plaintiff would not be entitled to a
directed verdict on the matter of liability, the issue of liability
[in a type 4 case] has been so conclusively proven that an
appellate court may infer that the jury's confusion was with regard
to the measure of damages and not to liability." Freshwater, 160
W. Va. at 164, 233 S.E.2d at 317. The proper remedy in types 1 and
4 still is remand on the issue of damages alone. Where the
appellate court is satisfied that the evidence clearly supports a
plaintiff's right to recover, either through a Type 1 case where
the plaintiff would have been entitled to a directed verdict or
through a type 4 case where liability has been conclusively proven,
the distinction between the applications of contributory negligence
and comparative negligence is of little impact. Types 1 and 4
have always existed and the appellate court has continued inherent
authority to remand on damages where liability is clear and damages
are inadequate.
In the present case, the jury's assessment against the
Defendants was twenty-six percent for the driver of the car and
twenty-five percent to the trucking company, for a total of fifty-one percent to the Defendants. Only forty-nine percent was
assessed against the Appellant's decedent. That verdict was
clearly not a defendant's verdict perversely expressed. As we
recognized in Freshwater, the typical pattern of a type 3
defendant's verdict perversely expressed is where a jury awarded
"only a nominal sum as an act of mercy, and if interrogated in
depth would have admitted that they did not really believe the
defendant to be liable." 160 W. Va. at 163, 233 S.E.2d at 316.
Here, although liability was hotly contested, the jury quantified
their determination on the issue of fault in an immensely
reasonable manner well-supported by the evidence.
Under the doctrine of comparative negligence, the process of
determining exactly what the jury meant and how it intended to
assess fault is a much more exact science than it was at the time
Freshwater was decided. The act of "drawing of legitimate
conclusions" or, in other words, deciphering what the jury
intended, is no longer necessary because there is no question as to
the intent of the jury. Id. Thus, we hold that the advent of
comparative negligence severely limits the continued applicability
of the Freshwater type 2 and 3 cases. Where a jury, pursuant to
the doctrine of comparative negligence, assigns more than 51%
negligence to a defendant or defendants, the Freshwater type 2 and
3 analysis are of greatly reduced value in categorizing the case.
Where a jury has so precisely identified its assessment of fault,
the speculation regarding possible confusion on liability inherent
in types 2 and 3 is no longer necessary. In categorizing future
cases of alleged verdict inadequacy, the concepts which underlie
Freshwater types 1 and 4 remain viable.
Thus, we conclude that the trial court erred in identifying
this case as a type 3 situation under Freshwater. It is true that
liability was hotly contested by the Defendant, but the jury found
the Defendant more than nominally at fault when it concluded that
the trucking company was twenty-five percent at fault.See footnote 6 Under the
old Freshwater framework, this would have been a type 2 case where
liability was hotly contested, but the Plaintiff proved more than
a nominal liability. The substantial damages were clearly
indicated from the evidence introduced by the Plaintiff and not
contradicted by the Defendant. The jury's error was clear in
failing to award adequate damages.
Based upon the foregoing, we affirm the decision of the jury
regarding the allocation of fault but remand the matter for a new
trial solely on the issue of damages.
Affirmed in part;
Reversed in part;
Remanded.
Footnote: 1John Moss had settled prior to trial for $100,000. Mr. Moss
remained in the case at trial because an additional amount of
insurance was potentially available. This settlement was not
disclosed to the jury.
Footnote: 2The jury verdict form required the jury to determine
compensatory damages separately for the Appellant and Teddy
Linville. To the Appellant for "sorrow, mental anguish, and solace
which may include but is not necessarily limited to loss of
society, companionship, comfort, guidance, kindly offices and
advice of the decedent, Jack K. Linville[,]" the jury awarded $0.
To the Appellant "for the reasonably expected loss of services,
protection, care and assistance provided by Jack K. Linville[,]"
the jury awarded $0. To the Appellant "for reasonable funeral
expenses[,]" the jury awarded $4,000.
To Teddy Linville for "sorrow, mental anguish, and solace
which may include but is not necessarily limited to loss of
society, companionship, comfort, guidance, kindly offices and
advice of the decedent Jack K. Linville[,]" the jury awarded $0.
To Teddy Linville "for the reasonably expected loss of services,
protection, care and assistance provided by Jack K. Linville[,]"
the jury awarded $0.
Footnote: 3Specifically, the Appellant presented this argument to us in
the following manner:
Prior to this Court's adoption of
comparative negligence, the concept of a
defendant's verdict perversely expressed made
sense because the slightest negligence on the
part of the plaintiff barred any recovery.
Under those circumstances, in a case where a
jury awarded some minimal sum of money, it
could be argued that the jury attempted to
compensate the plaintiff, even though the jury
believed that the plaintiff was guilty of some
negligence. Thus, to provide at least some
relief to the plaintiff, rather than none at
all, the jury might make a compromise and
award only some of the minimal special damages
proven.
However, with the advent of comparative negligence, which requires the jury to focus on the liability of the parties separate from the issue of damages and to make specific findings of negligence, the concept of a defendant's verdict perversely expressed is no longer a viable legal concept under West Virginia law. In this case, it cannot be disputed that the jury found Defendants' combined negligence to be 51%. Thus, under the law of this State and under the instructions given to the jury, the jury clearly found Defendants to be liable. Footnote: 4In Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979), we examined the existing rule of contributory negligence and recognized the manifest injustice of prohibiting recovery by a plaintiff if he was at fault in the slightest degree. We therefore modified the rule of contributory negligence and explained in syllabus point 2 that: "A party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident." 163 W. Va. at 332, 256 S.E.2d at 880. Footnote: 5 Since the advent of comparative negligence in the 1979 Bradley opinion, we have on several occasions discussed and utilized the Freshwater. More noteworthy among these cases are the following: Kaiser v. Hensley, 173 W. Va. 548, 318 S.E.2d 598 (1983), in which we determined that an action by injured motorists to recover damages sustained when another motorist drove into their car was a type 1 Freshwater case in which the plaintiff would have been entitled to a directed verdict. The plaintiffs had received $9,000 in damages for a liability that had been admitted and the trial was on the issues of damages alone. After reviewing the alleged damages, we determined that the award was not inadequate when viewed most strongly in favor of the defendants. In Martin v. Charleston Area Medical Center, 181 W. Va. 308, 382 S.E.2d 502 (1989), we determined that a wrongful death action alleging medical malpractice constituted a type 2 Freshwater case in which liability was strongly contested and damages of only $250,000 for both economic and non-economic loss were clearly inadequate even when viewed in favor of the defendant. In Hewett v. Frye, 184 W. Va. 477, 401 S.E.2d 222 (1990), we found that a personal injury action
subsequent to an automobile accident constituted a type 1
Freshwater case wherein liability was admitted and the sole issue
for jury resolution was damages. We recognized that we had
enunciated the standards by which the adequacy of a damage award
will be reviewed in Freshwater and again determined that the
verdict was not inadequate when viewed most favorably toward the
defendant. In Sullivan v. Lough, 185 W. Va. 260, 406 S.E.2d 691
(1991), we determined that a personal injury action subsequent to
an automobile accident was a type 4 case in which the issue of
liability was so conclusively proven that the appellate court could
infer that the jury's confusion was with regard to damages rather
than liability. Although the jury had evidence of medical bills,
chiropractic bills, housework charges, lawn care charges, pain and
suffering, and loss of consortium, no damages were awarded. We
therefore determined that a new trial was required on the issue of
damages.
Despite the existence of these and other cases discussing the Freshwater typology since the advent of comparative negligence, we have not taken the opportunity prior to the case at hand to discuss the direct impact of comparative negligence on the Freshwater enunciation of standards by which the adequacy of a damage award will be reviewed. Footnote: 6We caution as to the use of a single liability unit by a defendant where the jury has found the defendant liable and the defendant attempts to invoke a Freshwater analysis to escape paying the verdict under joint and several liability principles.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.