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In Glascow v. K-VA-T Food Stores, Inc., No. E2015-01653-COA-R3-CV (Filed 8/31/16), the Tennessee Court of Appeals upheld a $250,000 verdict for grocery store customer injured in the restroom. After using the facility, the customer attempted to stand but lost his balance, causing him to grab the handrail. The handrail pulled away from the wall, causing him to fall and hit his head. Afterward, he began experiencing uncontrollable migraines accompanied by severe nausea or vomiting.

We are not told the precise theory of liability against the store. The law in Tennessee is that an owner or occupier of real property is liable for dangerous conditions on the property that the owner or operator created or that the owner or operator knew, or should have known, existed. On appeal, the store did not contest that it was at fault. Accordingly, the Court of Appeals focused on whether there was sufficient evidence to support the amount of the jury's verdict.

The court found that there was sufficient evidence. The plaintiff had been a student at the University of Tennessee at the time of the accident. He had been placed on academic probation prior to the accident but alleged that he was unable to complete the semester because of the injury. He also alleged that when he did return to school, he was unable to pursue a career in his chosen field of communications. He ultimately returned to college and received a bachelor's degree in a different field. At the time of the accident, he had been employed in the field of television and video production for 14 years. He claimed he could no longer pursue employment in that field because of the bright lighting used, which apparently exacerbated his migraines. In short, the plaintiff had a plausible story concerning the alteration of his career trajectory because of the accident.

The plaintiff also had supporting medical proof. His primary care physician supported the theory that he had suffered a concussion. A neurologist also supported the plaintiff's theory/claim and rendered an opinion under oath that the plaintiff had classic symptoms of post-concussive migraine headaches. The neurologist said that the plaintiff could continue to have a headaches throughout his lifetime. The neurologist agreed, however, that there was no definitive test for this.

In upholding the verdict, the Court of Appeals deferred to the jury, citing law that makes it the job of the jury to determine the amount of damages for an injury such as this one. Also of assistance to the plaintiff in this case was the fact that the trial judge had not seen fit to reduce the award, which distinguished the case from some of the precedents relied upon by the defense. The Court of Appeals noted that the evidence was sufficient to support the jury's verdict.

Cases such as this one that present claims for "lost earning capacity" can result in large jury verdicts. If a plaintiff in a personal injury case submits convincing evidence that his or her ability to earn money was adversely impacted because of the fault of another person or business, juries can be sympathetic. Of course, not every case has this potential – many do not – and it all depends on the facts of the particular case.


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