Damages, Punitives: GERSH V. BOWMAN (COA 10/5/2007)

GERSH V. BOWMAN
TORTS: DAMAGES

2006-CA-001566
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; THOMPSON, GRAVES CONCUR
COUNTY: JEFFERSON
DATE RENDERED: 10/05/2007

CA affirms judgment against driver in this single vehicle MVA case. CA holds that defendant’s conduct rose to the level of gross negligence warranting a punitive damage instruction and that appellant failed to preserve an objection to the pain and suffering instruction.

High school student Maxwell Gersh, travelling with fellow students Samantha Bowman and Michael McLaurine, attempting to negotiate a sharp 15 mph curve in the dark traveling at approximately 49 mph, despite McLaurine’s warning. Bowman suffered extensive facial and cervical injuries resulting in 7 surgeries with at least 2 more to follow. Prior to trial, Gersh’s motion for summary judgment precluding punitive damages was denied. At trial, Gersh objected generally to the jury instructions and specifically to the punitive instruction. The jury awarded all medicals, $250K in wage; pain & suffering of $2 million; and punitives of $100K.

On appeal, Gersh argued error in denying his motion for summary judgment precluding punitives and argued that the pain & suffering verdict was excessive. CA holds that Gersh’s gross negligence merited the punitive damage instruction and that his general objection failed to preserve his objection to the pain & suffering instruction, which was capped at $2 million, the figure the jury awarded.

Digested by John Hamlet
Sitlinger, McGlincy, Theiler & Karem

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