§23.10 Itemization on Verdict Form

The Case: Overstreet v. Shoney's Inc., 4 S.W.3d 694 (Tenn. Ct. App. 1999).

The Basic Facts: Plaintiff was a patron at Defendant restaurant when she was blinded by a glass shard after a waitress dropped a plate near her. Plaintiff subsequently brought a negligence action against Defendant restaurant and the waitress who dropped the plate.

The Bottom Line:

• "Shoney's also insists that the itemization of damages on the verdict form permitted the jury to award duplicative damages. Specifically, it asserts that the damages for pain and suffering, disfigurement, and loss of capacity to enjoy life overlap. Ms. Overstreet responds that Shoney's should not be permitted to raise this issue on appeal because it did not take issue with the trial court's jury instructions on damages. We will first consider whether [Tenn. R. App. P. 36(a)] prevents Shoney's from raising this issue on appeal. It would have been better practice had Shoney's taken issue with the trial court's damage instructions or requested additional instructions concerning the components of each element of damage and a complete instruction patterned after T.P.I. 3 - Civil 14.01. However, we have determined that not raising these matters with the trial court does not prevent Shoney's from challenging the verdict form. The verdict form, more so than the instructions themselves, emphasizes the jury's prerogative to assign a separate monetary loss for each type of damages requested by Ms. Overstreet. Thus, notwithstanding the trial court's use of the term 'if any' in its instructions and the verdict form, the verdict form is more conducive to duplicate, overlapping damage awards if the different measures of damages listed on the form actually overlap. We have determined, however, that the different measures of damages sought by Ms. Overstreet represent separate and distinct losses." 4 S.W.3d at 714-715 (footnote omitted).

• "It will be helpful at the outset to define each of the non-economic damages that the jury awarded - pain and suffering, permanent impairment and/or disfigurement, and loss of enjoyment of life - both past and future. Although conceptually they all can be encompassed within the general rubric of pain and suffering, each of these types of damages are separate and distinct losses to the victim. See Thompson v. National R.R. Passenger Corp., 621 F.2d 814, 824 (6th Cir. 1980). The drafters of the [Tennessee Pattern Jury Instructions] have reached a similar Conclusion. See T.P.I. 3 - Civil 14.10 through 14.17." Id. at 715.