Slip and Fall Case

Jury award of $600,000 in damages, which was 13 times the special damages, for minor patron who slipped and fell in McDonald’s was not excessive given her persistent pain.

By Shaun O’Hara

Vineyard Indus., Inc. v. Bailey, 806 S.E.2d 898 (Ga. Ct. App. 2017)
In this case, a mother filed a negligence action against Vineyard Industries, Inc., d/b/a McDonald’s on behalf of her minor daughter who fell in front of drink machine. Following a jury trial that resulted in a $600,000 verdict, the trial court entered judgment and McDonald’s appealed.

On appeal, McDonald’s argued that the trial court erred in, among other enumerations of error, (1) allowing plaintiff’s counsel to use storyboards with pictures of testifying witnesses and quotations from deposition testimony in the opening statement that were inconsistent with trial testimony; and (2) entering judgment on the pain and suffering damages awarded by the jury, which McDonald’s asserted was inconsistent with the evidence at trial.

The evidence at trial showed that on her way to school, Antonia Bailey (“Antonia”) stopped for breakfast at a McDonald’s restaurant. After ordering, Antonia went to the restroom, which was in the opposite direction from both the door she had entered and the restaurant’s drink machine. After exiting the restroom, Antonia walked toward the drink machine. She was watching where she was walking and looking at the drink machine. She was not on her cell phone or otherwise distracted. Nevertheless, she slipped in front of the drink machine and fell.

A jury trial commenced on January 19, 2016 and was completed two days later with a verdict in favor of the plaintiffs. The trial court entered judgment in accordance with the verdict, awarding $16,206.51 to Antonia’s mother for past medical expenses incurred on behalf of Antonia and $28,224.82 for past medical expenses, $29,999 for future medical expenses, and $600,000 for pain and suffering to Antonia.

In its first enumeration of error, McDonald’s argued that the use of demonstrative exhibits during opening statement with quotations from witnesses’ depositions was improper and the quotations prejudiced the jury because they were inconsistent with the evidence presented at trial.

In a civil trial, “counsel for either party shall be permitted to use a blackboard and models or similar devices in connection with his argument for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury, provided that counsel shall not in writing present any argument that could not properly be made orally.” O.C.G.A. § 9-10-183. Counsel are given wide latitude in the use of demonstratives to assist in the jury’s understanding of the issues to be decided at trial. Vineyard, 806 S.E.2d at 901. Upon objection to such evidence, the trial court has discretion in determining whether such demonstrative exhibits will be allowed, which will be upheld absent an abuse of that discretion. Id.

In light of the foregoing, the Court of Appeals held that the plaintiff’s stated use for the trial boards was to assist in clarifying to the jury what they intended the evidence to show by allowing the jury “to read along so that it [did not] all stream together and get lost.” However, the trial boards were not included in the record on appeal. As the appealing party, the Court of Appeals held, McDonald’s “bore the burden of ensuring an accurate and complete record on appeal and of taking steps to have the record supplemented with any necessary materials.” Accordingly, the Court of Appeals presumed that the evidence supported the trial court’s ruling, and found no abuse of discretion in permitting the trial boards to be used during opening statement.

In its last enumeration of error, McDonald’s argued that the trial court erred in entering judgment because the jury award of damages was contrary to the preponderance of the evidence. The Georgia Court of Appeals found no error.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. Vineyard, 806 S.E.2d 898 at 903. On appeal, the presumption as to the validity of a jury verdict requires that all the evidence and every presumption and inference drawn from the evidence be construed most favorably to the jury verdict.

McDonald’s argued that the trial court should have granted a new trial on the issue of damages because the award of $600,000 for pain and suffering, which was 13 times the award for special damages, was so clearly excessive that it was inconsistent with the preponderance of the evidence.

The evidence showed that following the fall, Antonia underwent surgery and spent the rest of the school year on crutches or in a wheelchair. Prior to the fall, Antonia was energetic and an athlete with no history of knee issues, playing multiple sports in high school. After surgery, she was in severe pain, but after physical therapy, she was able to put some weight on her knee with the assistance of crutches, eventually increasing her activity level in an attempt to return to competitive sports. However, the more active Antonia was, the more pain she had in her knee, so she went to a second orthopedist. The orthopedist recommended further physical therapy, which Antonia undertook, and an MRI when the pain still did not recede. Based on the MRI results during the summer of 2014, the orthopedist recommended and performed a second knee surgery to fix a cartilage tear.

The Court of Appeals held that damages for pain and suffering are not awarded merely for the pain the plaintiff experiences at the time of trial or the pain the plaintiff is expected to suffer following all possible corrective surgeries. Rather, such damages are awarded for past, present, and future pain and suffering beginning at the time of the injury for which the lawsuit was filed. Vineyard, 806 S.E.2d at 905. According to the Court of Appeals, there was ample evidence in the record that Antonia suffered severe pain for at least two years after her fall, still experiences pain and will likely experience some pain after her third knee surgery.

About the Author
Shaun O’Hara is an associate with Charles A. Gower, P.C. in Columbus where he focuses on Plaintiff’s civil litigation, class actions, appellate advocacy, and product and pharmaceutical liability. He is an active member of GTLA and also currently serves on the Verdict Editorial Board.

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