David R. Janes
Tharp, Liotta & Janes
Fairmont, West Virginia
Counsel for the Appellant
Dwight R. Hall
Wallace, Harris & Sims
Elkins, West Virginia
Counsel for the Appellees
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
1. "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).
2. "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).
3. "'Where a verdict does not include elements of damage
which are specifically proved in uncontroverted amounts and a
substantial amount as compensation for injuries and the consequent
pain and suffering, the verdict is inadequate and will be set aside.
Hall v. Groves, 151 W. Va. 449, 153 S.E.2d 165 (1967).' King v.
Bittinger, 160 W. Va. 129[, 136], 231 S.E.2d 239, 243 (1976)." Syl.
Pt. 3, Kaiser v. Hensley, 173 W. Va. 548, 318 S.E.2d 598 (1983).
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).
This case arises out of certain serious personal injuries
sustained by Amanda Joe Godfrey. Following a two day trial, the
jury found the Appellees, Glenn Godfrey and Kim Fazemeyer,See footnote 1
negligent and awarded Amanda $30,000. Amanda's mother, the
Appellant Martha Widmayer, appeals from the denial of her motion for
a new trial on September 13, 1993, by the Circuit Court of Upshur
County. We agree with the Appellant that the verdict was manifestly
inadequate. Accordingly, we reverse the circuit court's order and
remand this case for a new trial on damages.
On April 14, 1990, Mr. Godfrey, Amanda's father, entrusted his
lawnmower to Ms. Fazemeyer, Amanda's step sister-in-law. Amanda was
seven years old at the time. While Ms. Fazemeyer was operating the
mower, Amanda was standing on its trailer hitch with her hands
resting on Ms. Fazemeyer's shoulders. Amanda stepped off of the
mower when she thought that the mowing was finished. The mower,
however, began moving backward, and the hitch hit Amanda in the left
leg and knocked her down. While the mower was still running, and
the blades apparently engaged, Amanda's left foot became caught in the blades and a portion of her foot was degloved.See footnote 2 The mower
apparently stayed on Amanda's foot for a period of time until her
brother lifted it off. Amanda was immediately rushed to St.
Joseph's Hospital in Buckhannon. Given the severity of her injuries
though, she was moved to the Level One Trauma Center at Ruby
Memorial Hospital in Morgantown.
Not surprisingly, Dr. Kurth, Amanda's treating physician at
Ruby Memorial, testified that Amanda was in pain upon her arrival at
the hospital. He stated that when he removed the dressing around
her injury he observed that her foot was "mangled" and "chopped up."
He performed surgery on Amanda's foot shortly thereafter and
observed in an operation summary that "the wound was grossly
contaminated with ground-in dirt and grass clippings." During
surgery, he cut away the dead tissue and amputated what was left of
Amanda's large toe. Additionally, the record indicates that a flap
of skin was removed from the dorsal surface of Amanda's foot,
defatted and prepared as a skin graft source. Dr. Kurth also noted
that certain bones in the foot were broken and that he set these and
"drilled a wire across the fractures to hold them in place."
On April 17, 1990, Amanda underwent further surgery. During
the procedure, Dr. Kurth noted the absence of any blood flow to Amanda's second and third toes. Consequently, they too were
amputated. Further skin grafts were performed as well, using the
defatted flap of skin as well as derma from Amanda's thigh. The
graft healed over, and Amanda was sent home on crutches. She spent
a total of six days in the hospital.
Amanda returned to the hospital periodically over the next few
months for further examinations. Some of these visits are notable.
For instance, Dr. Kurth testified that on approximately May 9, 1990,
he observed that only seventy-five percent of the skin graft had
"taken." Twenty-five percent of the skin had died. On May 22,
1990, Amanda returned to the hospital for further surgery to remove
pins from her foot. At that time, Dr. Kurth again noted the
presence of a portion of black gangrenous dead tissue around the
Amanda returned to the hospital on April 8, 1991. Dr. Kurth
noted that she had some ulceration on the top of her foot which was
treated by the use of a chemically-aided burning process. He
testified as follows concerning the likely perpetual nature of the
Q. Do you anticipate that there will be any continued or persistent problems with that type of thing, the irritation or the ulceration that you saw in April of 1991?
A. Yes. I think she can have intermittent
problems. I don't think it will be a daily problem. A
different pair of shoes, something she can rub on. You
have to understand a skin graft is not normal sensate
feeling skin and it's not normal thickness. It does do a good job. It allows us to keep a foot or an arm or a leg
but it's in no way normal. So we can have areas that get
irritated from rubbing and so forth. But it should - - -
that should not be a daily occurrence.
As one might guess, Amanda testified that she was in pain
during the incident and that she experienced a continuing level of
pain even up to the time of her testimony. She stated that her foot
"splits open sometimes" and that her foot "hurts bad" when the
weather is cold or when she hits it on something. She further
stated that there are times when she can feel her three missing
toes, even though they are now gone.
Amanda also conveyed how the accident has changed her life.
For instance, she stated that she sometimes falls "up and down"
stairs. Further, unlike her friends, she is required to wear tennis
shoes when she dresses up rather than dress shoes. She said that
this upsets her and makes her wonder about what will happen in the
future regarding proms, her wedding, and employment. She also
testified that she has had to endure a persistent course of mean-
spirited teasing by some of her classmates because of her
impairment, one such incident even occurring on her birthday.
As a result of the accident, the Appellant filed a six-count
complaint on April 30, 1991. At trial, which commenced on June 22,
1993, the parties stipulated to Amanda's medical expenses. Those
expenses totalled $17,874.39. Following a two day trial, the jury
returned its verdict. The jury found Mr. Godfrey 40% negligent and Ms. Fazemeyer 60% negligent and awarded Amanda $30,000 in damages.
The Appellant moved for a new trial on July 1, 1993, alleging that
the amount of the verdict was inadequate. The circuit court denied
the motion on September 13, 1993, via a one-page order.
We agree with the Appellant that the verdict in this case was
inadequate as a matter of law. Accordingly, we now reverse.
We have stated 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." Syl. Pt. 1, Kaiser
v. Hensley, 173 W. Va. 548, 318 S.E.2d 598 (1983). We have also
stated that "[w]e 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). Nevertheless, it is equally well-settled that
'[w]here a verdict does not include elements of
damage which are specifically proved in
uncontroverted amounts and a substantial amount
as compensation for injuries and the consequent
pain and suffering, the verdict is inadequate
and will be set aside. Hall v. Groves, 151 W.
Va. 449, 153 S.E.2d 165 (1967).' King v.
Bittinger, 160 W. Va. 129[, 136], 231 S.E.2d
239, 243 (1976).
Syl. Pt. 3, Kaiser v. Hensley, 173 W. Va. 548, 318 S.E.2d 598
The parties' briefs are almost exclusively devoted to the
question of whether the $30,000 award even covers Amanda's future
medical expenses. As stated above, the parties stipulated to the
medical expenses as of the date of trial in the amount of
$17,874.39. There was also testimony, however, concerning the
future costs and necessity of orthotic fillers for Amanda's shoes,
which were not included in the stipulated amount.
The orthotics are basically a shoe insert fashioned from a
plaster impression of the foot that prevents or accommodates defects
in the foot. Dr. Leonard Simmons, Amanda's podiatrist, testified
that she would require the orthotics for the rest of her life. He
stated that the orthotics would need to be replaced yearly during
the growing years and approximately every two years thereafter. The
cost of each orthotic is approximately $500. Given the parties'
apparent stipulation that Amanda's lifespan would extend for an
additional 68 years, the lifetime cost of the orthotics was pegged
at approximately $17,000. The Appellant thus asserts that Amanda's
present and future medical expenses exceeded $34,000 and, therefore,
the $30,000 award was clearly inadequate to cover future medical
expenses, much less pain and suffering.
The Appellees, however, point to the testimony of Dr. Kurth
that Amanda may not even need an orthotic. Even if she did need the
device though, Dr. Kurth surmised that "[y]ou could put cardboard or
cotton or you can go to the shoemaker and he can make it out of synthetic materials. It's nothing of any real special design or
anything. It's just to fill in that space where the toe would have
When comparing the technical detail of the doctors' testimonies
and their relevant specialties, we question whether the filler is
merely for "cosmetic reasons"See footnote 3 as suggested by Dr. Kurth. Rather,
Dr. Simmons' explanation seems more plausible:
After examining Amanda and seeing the condition of her foot, we felt that we needed to make her an orthotic which would have a prosthetic forefoot, to make up for the loss of bone structure, so that she could, at a minimum, wear shoes that matched, and would not be subject to ridicule. We felt that the orthotic would give her some breaking [sic] action, which the great toe and the second toe were no longer providing for her, could help redistribute weight. The lack of the weight- bearing potential of the first and second metatarsals throws an unusual amount of weight- bearing on the remaining bones, which aren't built to absorb or accept that amount of pressure, and we felt long-term, that this needed to be done to prevent problems from occurring.
We are not certain why the jury did not make an allowance for
the orthotics. Such may have been the result of confusion or even
a reasoned decision to disregard Dr. Simmons' testimony.
Nevertheless, we need not speculate. Even assuming that the jury
chose the latter course, its award for pain and suffering was an unreasonable pittance. When one deducts the amount of stipulated
medical expenses from the award, the jury awarded just slightly over
$12,000 for what can only be described as a permanent physical
deformity which caused excruciating pain initially. Further,
Amanda's suffering continues, albeit to a lesser degree, even to
One need only cursorily survey the record in this case to
ascertain the enormous scale of the pain and suffering endured by
then seven-year-old Amanda. In sum, the events immediately
surrounding the time of the injury speak volumes about what Amanda
tolerated: (1) her foot came into contact with a near razor-sharp
blade traveling at thousands of revolutions per minute; (2) the lawn
mower stayed on her foot for an undetermined period of time
thereafter; (3) the blade wholesally removed all of the skin and
soft tissues from a portion of her foot; and (4) the blade reduced
the foot to, in the words of a seasoned orthopedic surgeon, a
"mangled" and "chopped up" mass of flesh. One must also consider
the added specter of the multiple amputations, three operations, the
sight of black gangrenous tissue, and the continuing pain that
Amanda suffers from (1) cold weather, (2) accidentally hitting her
foot and (3) the intermittent splitting of her flesh. Finally, one
cannot ignore the teasing and humiliation that Amanda has endured
and continues to endure from her peers. As stated by Dr. Simmons,
"this type of abuse can be as painful as the physical problem . . .
." In short, this deformity is something that Amanda will live and suffer with, physically and mentally, for the rest of her life.
Even viewing the evidence of damages most strongly in favor of
the Appellees, we have no difficulty concluding that, based upon the
relevant portions of the record, the amount awarded by the jury was
wholly unreasonable, inadequate and unsupported by the evidence. In
our view, the jury unjustifiably refused to make the required award
of a substantial amount of compensation for Amanda's injuries and
her consequent pain and suffering. Accordingly, we hereby set aside
Having found the verdict manifestly inadequate, we must now
determine the appropriate course for the circuit court to pursue on
remand. See Linville v. Moss, 189 W. Va. 570, 574, 433 S.E.2d 281,
285 (1993). In syllabus point three of Biddle v. Haddix, 154 W. Va.
748, 179 S.E.2d 215 (1971), we stated 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.
We are also mindful of typology four from our decision in
Freshwater v. Booth, 160 W. Va. 156, 233 S.E.2d 312 (1977). A type
four case is one in which:
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 of a particular jury.
Id. at 164, 233 S.E.2d at 317.
While we have considered the Appellees' arguments to the
contrary, we are convinced that this is a type four case.See footnote 4 We are
satisfied that liability was conclusively proven. Indeed, it would
have been exceedingly difficult to prove that Amanda shared any of
the blame for the accident, given that she was only seven years old
at the time.See footnote 5 The jury attributed 100% of the fault to the Appellees for good reason, and we see no need for a new jury to
revisit the issue. We are satisfied that the only effect of
ordering a new trial on both liability and damages would be to
unnecessarily put the Appellant to the additional burden of proving
again an issue that she unquestionably prevailed upon already.
Based upon the foregoing, the order of the Circuit Court of
Upshur County denying the Appellant's motion for a new trial is
reversed, and this case is remanded for a new trial on the sole
issue of damages.
Footnote: 1 In addition to Mr. Godfrey and Ms. Fazemeyer, Amanda also sued Southern States Buckhannon Cooperative, Inc., and Murray Ohio Manufacturing Company. The jury exonerated the latter two defendants, however, and that finding is not challenged on appeal.
Footnote: 2 Dr. Lloyd A. Kurth was the physician who treated Amanda at Ruby Memorial Hospital. His video deposition was introduced into evidence at trial, and he stated that "degloving" "means that everything's been cut off. All the skin and soft tissues are cut off of an area."
Footnote: 3 Even if one accepts that the orthotics would be of cosmetic assistance only, certainly this child who was without fault in this accident, is entitled to any such assistance.
Footnote: 4 While not relevant to the instant case, we have recognized that Freshwater typologies two and three have substantially less viability following the advent of our adoption of the doctrine of comparative negligence. See, e.g., In re: State of West Virginia Pub. Bldg. Asbestos Litig., Nos. 22023, 22024, 22025, 1994 WL 707228, at *11, n.1, W. Va. , , S.E.2d , n.1 (filed Dec. 21, 1994)(citing Linville v. Moss, 189 W. Va. 570, 433 S.E.2d 281 (1993)).
Footnote: 5 We recently stated in Pino v. Szuch, 185 W. Va. 476, 478, 408 S.E.2d 55, 57 (1991), that "West Virginia, like most jurisdictions, treats children with considerable favoritism in regard to their negligent acts." We also stated as follows:
For children between the ages of seven and
fourteen, the conclusive presumption [that a
child is incapable of negligence] disappears,
and a rebuttable presumption applies.
However, the burden is upon the party
attempting to overcome the presumption to
prove that the child has the capacity to be
Id. at 477-78, 408 S.E.2d at 56-57, syl. pt. 2.
We noted in Pino that the rebuttable presumption is "strong" when the child is still in the near vicinity of his or her seventh birthday. Id. at 480, 408 S.E.2d at 59.