JURY INSTRUCTIONS: Civil case, separate instructions for past and future pain and suffering; and what about ‘inconvenience’

The following decisions, albeit unpublished, addressed a common thread on pain and suffering, past and future, but bypassed the interesting question and issue as to whether on not the statutory prescription in the no fault act (which includes inconvenience) requires that exact phrase in the instructions as it goes to the jury.   Of course, the side-step is not unwarranted, but judicial clarification has not been a problem before.

See earlier post at the Kentucky Law Review by me entitled:  "Trial Practice: No Pain, No Gain and the Judicial Discounting of Pain and Suffering" back in 2006 and "Zero Pain and Suffering Verdict With Ky AG Candidate on the Defense" from 2007; and "DAMAGES: PTSD and mental anguish resulting from death of a loved one in the same car accident seems to be a noncompensable damage in UIM case even when the claimant has been physically injured from the accident" from 2008.

And, of course, here is KRS 204.39-060(2)(b):

In any action of tort brought against the owner, registrant, operator or occupant of a motor vehicle with respect to which security has been provided as required in this subtitle, or against any person or organization legally responsible for his or her acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish and inconvenience because of bodily injury, sickness or disease arising out of the ownership, maintenance, operation or use of such motor vehicle . . . . (from 1975!).

1165.  CIVIL PROCEDURE (DIRECTED VERDICT) INSTRUCTIONS. PAIN, SUFFERING, INCONVENIENCE.
FERGUSON (BARBARA)
VS.
UNDERTOW TRUCKING, INC
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2011-CA-000064-MR
NOT TO BE PUBLISHED – COA 12/22/2011
JOHNSON

Regarding her first assertion of error, Ferguson relies exclusively on McVey v. Berman, 836 S.W.2d 445 (Ky. App. 1992), for this proposition. In McVey, the Court said “[o]f course, it may be appropriate in many cases to give an additional separate instruction on future pain and suffering.” Id. at 450. The language therein is permissive not mandatory. Since Ferguson provides no other Kentucky law mandating separate instructions for past and future pain and suffering and has shown no prejudice resulting from this action by the trial judge, there is no error on the part of the trial judge.

Next, Ferguson argues that the jury instructions should have had the words “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life” in them. Given that we have held that the trial court did not err in failing to grant a motion for directed verdict or a motion for a judgment notwithstanding a jury verdict, clearly any error resulting would be harmless. The jury never deliberated as to damages and, therefore, it is unnecessary for us to go further in our examination of this issue.

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