December 10, 1999

Handicaps, good and bad

By ANDREW BERGH
Special to the Journal

Let's test your conscience.

On July 17, 1995, Brian Taylor took his Jeep Cherokee to the Sam's Club store in Charlottesville, Va., to have new tires installed. Six days later, Taylor and one of his golfing buddies, Zed French, drove the car to Richmond to play in a tournament.

That, at least, was their intention.

But the twosome never made their tee time. Instead, while they were traveling on Interstate 64, the Jeep's left front wheel suddenly came off, causing the car to crash down onto the pavement and veer violently toward a guardrail.

Fortunately, the Jeep stopped shy of the guardrail. But French, anticipating a violent collision, had braced himself with such force that he suffered a back injury.

It caused chronic pain.

French later sued the storeowner, Wal-Mart Stores, Inc., in federal district court, claiming its employees had negligently installed the tires on his friend's Jeep. By the time the case went to trial in April 1998, the Greene County resident was 49 years old.

At trial, French and members of his family testified about the devastating impact of his back injury.

An avid golfer, French said he had regularly played the game since he was four or five years old, and that he usually played two or three times a week as his main way to relieve stress from work.

French also said that his handicap typically ranged between two and three prior to the accident. (For all you hackers out there, golfers with handicaps that low are eligible to qualify for the U.S. Men's Amateur Championship.) Since the accident, however, he hadn't played a single round.

Another hobby and stress release that French actively pursued before the accident was yard work. Afterwards, he could only do about 10 percent of his usual activities. He couldn't, for instance, ride his lawnmower anymore because the shaking and jerking aggravated his back.

French also testified that his family lived on a small lake and that before the accident he usually went boating two or three times a month. Fishing, too, was one of his favorite diversions. Since the accident, however, French eschewed both activities.

The effect on French's family life was just as extreme.

According to his wife and children, French previously was active, energetic, and involved in many family activities. Afterwards, however, he was unable, among other things, to sit long enough in church to watch his daughter sing, or to attend basketball games to watch her lead cheers.

French's son and daughter meanwhile testified that dad could no longer play golf with them, or even walk the course with them when they played in golf tournaments. As his wife aptly summarized, "He just has to be left out now."

There also was evidence that French's back injury affected his performance at work.

At the time of trial, French had been the principal at William Monroe Middle School, a position he had held for 12 years. But because his back pain so depleted his energy, French was scheduled to assume a new position the following school year as an elementary school principal -- a less demanding and lower-paying job.

Last but not least, French presented evidence of his economic losses. Totaling almost $100,000, they included approximately $50,000 for past income loss, $32,000 for future income loss, and $17,000 for medical expenses.

In its defense relating to damages, Wal-Mart put on testimony from a doctor who had examined French at the storeowner's request.

The doctor's opinion was that French had only suffered a low back sprain that would have healed in three to four months. He instead attributed the school principal's ongoing back pain to preexisting osteoporosis and disc degeneration.

This evidence was rejected by the jury, which eventually returned a verdict for a whopping $1 million, including $900,000 for French's pain and suffering.

Astounded by this development, Wal-Mart moved for a new trial on the ground of excessive damages. The evidence was simply insufficient, claimed the defendant, to support the jury's award. But once the trial judge denied its motion, Wal-Mart found itself on the wrong side of an appeal.

According to Virginia law, damages are only excessive when they "shock the conscience" of the court. Under this test, the appeals court explained, a damages award should only be set aside when it is so out of proportion to the injuries suffered that it necessarily suggests the jury's decision was neither fair nor impartial.

But Wal-Mart struck out again.

The term "suffering," said the appeals court, includes mental anguish resulting from the loss of enjoyment of life. And since the evidence amply supported the conclusion that French's suffering had affected every aspect of his existence -- from work to family to golf -- the court ultimately said the $1 million verdict should stand.

I don't know about you, but as a 47-year-old family man who loves golf, my conscience was hardly "shocked" by the jury's seven-digit award.

On the other hand, as an 18-handicapper I certainly won't expect a million bucks if I ever injure my back in an accident.

Previous columns:

• An open-and-shut case, 11-25-1999
• Praise the law, 11-04-1999
• After grief comes gimme, 10-21-1999
• Cybercow meets digitruck, 10-01-1999
• Strange, blind justice, 09-23-1999
• Court case turns on a Barney doll, 09-02-1999
• Reasonable care for shorties, 08-05-1999
• Just say Boo to drugs, 07-22-1999