                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    July 14, 2010 Session

   ROBIN R. RIPPY AND DARRELL RIPPY v. CINTAS CORPORATION
                      SERVICES, INC., ET AL.

                    Appeal from the Circuit Court for Sumner County
                          No. 31581-C     C. L. Rogers, Judge


               No. M2010-00034-COA-R3-CV - Filed September 17, 2010


Plaintiff motorist filed suit against defendant motorist and her employer, seeking damages
she sustained in a motor vehicle accident in which defendant motorist rear-ended her vehicle.
Defendants appeal a jury award asserting there is no material evidence to support the award.
Finding the verdict of the jury to be supported by the evidence, we affirm the judgment.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ, joined.

James P. Catalano and Emily B. Vann, Nashville, Tennessee, for the appellants, Cintas
Corporation Services, Inc. and Brandy Sefranek.

Jonathan L. Griffith, Nashville, Tennessee, for the appellee, Robin R. Rippy and Darrell
Rippy.

                                           OPINION
I. Background

       This appeal arises from a motor vehicle accident which occurred on June 5, 2007. On
that date, Brandy Sefranek (“Mr. Sefranek” or “Defendant driver”)1 was driving a truck
owned by his employer, Cintas Corporation Number 2 (“Cintas” or “corporate Defendant”),
when he rear-ended a vehicle being operated by Robin R. Rippy (“Ms. Rippy”). Ms. Rippy
and her husband, Darrell Rippy, (collectively, “Plaintiffs”) thereafter filed suit in the Circuit


       1
          The Complaint names Brandy Sefranek as the driver of the truck which struck the plaintiff;
however, later pleadings and testimony at trial identified the driver as Brandon Sefranek.
Court for Sumner County against Mr. Sefranek and Cintas2 seeking damages for injuries Ms.
Rippy sustained as a result of the accident and for Mr. Rippy’s loss of consortium.

     Following a trial, the jury returned a verdict awarding Plaintiffs damages in the
amount of $94,637.29, allocating the damages as follows:

        Non-Economic Damages:
             A) Pain and suffering—past                                 $12,500
             B) Pain and suffering—future                               $15,000
             C) Permanent impairment                                    $10,000
             D) Loss of ability to enjoy life—past                      $15,000
             E) Loss of ability to enjoy life—future                    $25,000
             F) Loss of consortium—Darrell Rippy                        $1,000

        Economic Damages:
             G) Medical care/services                                   $14,437.29
             F) Loss of earning capacity—past                           $1,700

The trial court entered judgment on the verdict on October 1, 2009. Defendants thereafter
filed a Motion for New Trial or, alternatively, for Remittitur, which was denied. Defendants
filed a timely notice of appeal.

       Defendants contend that the trial court made several improper evidentiary rulings that
prejudiced the jury. Defendants also assert that the jury’s award was not supported by
material evidence; alternatively, Defendants contend that the verdict was excessive and,
consequently, that the trial court erred in not granting their request for a remittitur.

II. Discussion

        A. Cintas’ Incident Report

       Defendants first assert that Plaintiffs’ counsel “attempted to confuse and prejudice the
jury” by suggesting that Cintas did not comply with discovery requests. In support of this
assertion, they cite the following exchange between Plaintiffs’ counsel, Mr. Sefranek,
Defendants’ counsel, and the court:




        2
         Plaintiffs originally named Cintas Corporate Services, Inc., as a defendant; an agreed order was
subsequently entered substituting Cintas Corporation Number 2 as a Defendant.

                                                  -2-
       [PLAINTIFFS’ COUNSEL]: Isn’t it true that when you completed that form,
       that you put on the report that you hit that Isuzu Trooper in the back with the
       front-end of your Cintas Truck?

       [MR. SEFRANEK]: Yes.

       [PLAINTIFFS’ COUNSEL]: And isn’t it also true that when you filled out the
       report on the same day, that you never blamed Mrs. Robin Rippy at all for
       causing this wreck, did you?

       [MR. SEFRANEK]: That is true.

       ...

       [PLAINTIFFS’ COUNSEL]: And you shared the story of what you just told
       this jury with your Cintas management; is that correct?

       [MR. SEFRANEK]: That’s correct

       [PLAINTIFFS’ COUNSEL]: And isn’t it true that you didn’t put anywhere on
       that form that Mrs. Robin Rippy wasn’t any way responsible, correct?

       [DEFENDANTS’ COUNSEL]: Your Honor, can we see a copy of this form
       that he’s referring to. I think he needs to show it to me and show it to my
       client.

       [PLAINTIFFS’ COUNSEL]: Your Honor, I’d like to but I asked for it and it
       was not provided to me.

       [DEFENDANTS’ COUNSEL]: Well, then how does he know what’s on the
       form. Do we just get to stand up in court and make things up? I object to
       everything he just said and have it stricken from the record.

       A full reading of the testimony, the interplay between counsel, and the ruling of the
court, however, shows that, while Mr. Sefranek testified that he provided Cintas with a
written, internal incident report regarding the accident with Ms. Rippy,3 no accident report


       3
           Prior to the testimony quoted in the text, Mr. Sefranek testified as follows:

                                                                                           (continued...)

                                                     -3-
was introduced into evidence. The court ruled in response to the objection quoted above as
follows:

       It will be up to the witness rather than the lawyers to testify to what they put
       into the report. There is no requirement that he has to have the report. So far
       he’s testified as to what he’s done. So overrule as far as having to produce the
       report at this point.

        This is the appropriate response to the objection raised inasmuch as the witness was
testifying from his memory rather than a document. Moreover, Mr. Sefranek was not
examined by counsel for Defendants regarding the accident report and the record does not
reflect that Defendants sought any further relief to the extent they felt counsel for Plaintiffs
was improperly withholding information. Furthermore, we find Defendants’ complaint
regarding Plaintiffs’ counsel is not supported by the record and is without merit.

       B. Photographs of Cintas Vehicle

       Defendants argue the trial court erred, during the course of the testimony of Ms.
Rippy, in admitting a photograph of a Cintas vehicle on the basis that the vehicle pictured
was “neither the vehicle involved in this accident nor a vehicle of similar make and model”
and that, consequently, the pictures would confuse the jury. This contention is without merit.




       3
           (...continued)
       [PLAINTIFFS’ COUNSEL:] Now, your company has accident reporting procedures; is that
       correct?
       [MR. SEFRANEK:] They do.
       [PLAINTIFFS’ COUNSEL:] Is that something that you’re taught [sic] by Cintas to
       complete?
       [MR. SEFRANEK:] Yes.
       [PLAINTIFFS’ COUNSEL:] And is that something that’s done after every accident that
       occurs while you’re driving for Cintas?
       [MR. SEFRANEK:] Yes.
       [PLAINTIFFS’ COUNSEL:] And do those reporting—accident reporting procedures
       include giving a statement to Cintas Corporation, a written statement?
       [MR. SEFRANEK:] You fill out the accident report. Yeah, that’s a written statement.
       [PLAINTIFFS’ COUNSEL:] Is that a Cintas form?
       [MR. SEFRANEK:] Yes.
       [PLAINTIFFS’ COUNSEL:] And did you do that in this specific incident on the same date
       of this wreck?
       [MR. SEFRANEK:] Yes.


                                                -4-
       We afford the trial court wide discretion with regard to the admissibility of evidence,
and we will not overturn the trial court absent a finding that the trial court abused its
discretion. Tire Shredders, Inc. v. ERM-North Central, Inc., 15 S.W.3d 849, 857 (Tenn. Ct.
App. 1999). A trial court abuses its discretion when it “applie[s] an incorrect legal standard,
or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the
party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

      When this matter was first raised, prior to the taking of testimony in the case, the court
withheld ruling, stating:

       I tell you what I’m going to do, I’m not going to make a ruling on that at this
       point. You will be required to lay the proper foundation as it was the same or
       similar. And if an objection is made, we’ll see if you do it. . . . The mere fact
       that this is a different truck, I can’t stop you at this point how different it may
       be or if there’s other damage or something on that truck . . .

During the course of Ms. Rippy’s testimony, she stated the photographs depicted a truck
“very similar” to the truck that collided with her vehicle. When asked whether there were
any differences between the truck depicted in the photograph and the truck that rear-ended
her vehicle, Ms. Rippy responded, “I don’t see anything different about it. It’s a big, white,
industrial looking van truck that has a Cintas red and blue sign on it.” The court admitted
the photographs, instructing the jury that “. . . it is not the truck involved. It’s just one similar
according to this witness.”

       The court properly admitted the photographs. The mere fact that the truck in the
photograph was not identified as the same truck that stuck plaintiff’s vehicle does not make
the photograph inadmissible. Ms. Rippy was not cross-examined in this regard and
Defendants offered no proof to contradict it or to show a different truck. To the extent
Defendants took issue with the photograph, it was incumbent upon them to either establish
a firm basis to exclude the pictures or introduce proof on their own. This they failed to do.

       C. Hearsay

       Defendants argue that Plaintiffs improperly introduced hearsay testimony of a police
officer who responded to the accident. The references to asserted hearsay cited in
Defendants’ brief include citations to arguments of counsel and the following testimony of
Mr. Sefranek:




                                                 -5-
       Q. Let me just ask you straight up, on the day of this wreck, you say you’re
       sorry, you done an incident report and you tell Cintas its your fault and Mrs.
       Rippy is not at fault. And you tell the police officer basically the same thing.
       And then your interrogatories seem to be different, wouldn’t you agree?

       A. I don’t remember saying anything to anybody. I never told Cintas this is
       my fault. I just told Cintas and the police officer what happened. Both of
       them asked me what happened and I told them both what I just told the jury.

        As an initial matter, the arguments and statements made by an attorney throughout the
course of trial are not evidence. Oakes v. Oakes, 235 S.W.3d 152, 158 (Tenn. Ct. App. 2007)
(citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)). Attorneys do not
testify, thus their statements cannot be considered hearsay. Upon Defendants’ objection to
statements made by Plaintiffs’ counsel during opening statement, the trial court properly
stated, “Let me say again, that is an opening statement. They are going to tell you their
version of the story but it is not proof. This is what they hope to conclude from the facts. .
. .” Defendant’s argument that the statements of counsel during opening and closing
statement constituted hearsay is without merit.

        Likewise, we find the testimony of Mr. Sefranek did not constitute hearsay, which is
defined as “a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c).
 Mr. Sefranek did not repeat the statements of an out of court declarant but, rather, stated
only to whom he made a report about the accident. Moreover, Defendants made no objection
to any portion of the testimony related to the police officer. An objection to the admission
of evidence must be made at trial or the matter will not be considered on appeal. See Morgan
v. Duffy, 30 S.W. 735 (1895). Therefore, we find Defendants’ contention as to Mr.
Sefranek’s redirect examination is waived, and Defendants’ argument as to statements of
counsel are without merit.

       D. Jury’s Award of Damages

       We next turn to the question of whether the trial court erred in denying Defendants’
motion for remittitur or in failing to grant a new trial. Defendants argue the damages
awarded for future pain and suffering, permanent impairment, future loss of the ability to
enjoy life, and lost wages were not supported by the evidence and were so excessive as to
infer passion, prejudice, or caprice on the part of the jury.

      Inherent in the trial court’s denial of a remittitur was its determination that the amount
awarded by the jury was not excessive and was supported by the evidence. Similarly, our

                                              -6-
resolution of the issue as presented is dependent upon whether the evidence supports the
verdicts. See Tenn. R. App. P. 13(d); Ellis v. White Freightliner Corp., 603 S.W.2d 125, 129
(Tenn. 1980).4

       Non-pecuniary losses for future pain and suffering, future loss of enjoyment of life,
and permanent impairment “are not easily quantified and do not lend themselves to an easy
valuation.” Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 210-11 (Tenn. Ct. App.
2008). “[D]etermining the amount of these damages is appropriately left to the sound
discretion of the jury . . . .” Id. Furthermore, it is not the appellate court’s “prerogative to
determine whether the award strikes them as too high or too low.” Id. at 211. “Rather, the
reviewing court must review the evidence in the record ‘to determine whether material
evidence supports a finding that the jury award is within the range of reasonableness and not
excessive.’” Id. (quoting Dunn v. Dunn, No. W2006-00251-COA-R3-CV, 2007 WL 674652
at *9 (Tenn. Ct. App. Mar. 6, 2007)).

        Defendants contend that the jury’s award of $15,000 for future pain and suffering was
not supported by material evidence because Ms. Rippy testified she can still engage in the
activities she pursued prior to the accident. Defendants further cite Dr. Schoettle’s testimony
that he did not consider Ms. Rippy to be a surgical candidate nor did he anticipate Ms. Rippy
would require any future medical treatment.

       “Pain and suffering encompasses the physical and mental discomfort caused by an
injury,” and includes the “‘wide array of mental and emotional responses’ that accompany
the pain.” Overstreet v. Shoney’s Inc., 4 S.W.3d 694, 715 (Tenn. Ct. App. 1999) (citing
McDougald v. Garber, 504 N.Y.S.2d 383, 385 (N.Y. Sup. Ct. 1986)). With regard to her
continued pain and suffering, Ms. Rippy testified, “my neck pretty much hurts every day.”
In addition to her neck pain, Ms. Rippy testified that both of her shoulders continue to cause
her pain; as a result, she takes pain medication on a daily basis.           Dr. Schoettle, a
neurosurgeon who treated Ms. Rippy following the accident stated, “I felt it was likely she
would continue to have intermittent symptoms of mild to moderate degree of pain with her
neck.” Ms. Rippy’s testimony describing the persistent pain in her neck and shoulders and
Dr. Schoettle’s testimony constitutes material evidence to support the jury’s award for the
future pain and suffering Ms. Rippy will endure as a result of the car accident with
Defendants.




        4
          “The trial judge’s approval of a jury verdict invokes the material evidence rule with respect to all
other issues of fact and we know of no reason why that rule should not have the same effect when that
approval includes the amount of the award.” Ellis, 603 S.W.2d at 129.

                                                     -7-
        Defendants take issue with the jury’s award of $10,000 for Ms. Rippy’s permanent
impairment. Defendants suggest an award of this amount is excessive considering Ms. Rippy
“admitted that she is not significantly or severely hindered in her every-day life.” Defendants
also argue Ms. Rippy’s five percent impairment rating does not support the value of the
jury’s award.

        Damages for permanent impairment of a physical function are awarded to redress an
“injury from which the plaintiff cannot completely recover.” Overstreet, 4 S.W.3d at 715.
 Dr. Tigges, a chiropractor who treated Ms. Rippy for her injuries, testified that Ms. Rippy
would endure negative, persistent implications from her injury. In particular, Dr. Tigges
stated:

       She can probably expect that her neck is going to get stiffer, still going to
       continue to ache. The cervical degeneration she had may end up being
       accelerated because of the injury, because now her neck is stiff, she’s not
       moving her neck the way she should be, which can speed up that process.

Both Dr. Tigges and Dr. Schoettle testified that Ms. Rippy would have a five percent
impairment rating for the remainder of her life, and no medical intervention could take the
impairment away. In addition, Ms. Rippy testified that she was no longer able to do any
overhead or repetitive type of work. The five percent permanent impairment rating, coupled
with Dr. Tigges’ testimony regarding the permanent implications of the accident, is material
evidence supporting the jury’s award of damages for permanent impairment.

        Defendants assert the jury’s award of $25,000 for Ms. Rippy’s loss of the ability to
enjoy life in the future was not supported by material evidence because Ms. Rippy testified
she is able to participate in the same activities she participated in prior to the accident.

        “Damages for loss of enjoyment of life compensate the injured person for the
limitations placed on his or her ability to enjoy the pleasures and amenities of life.”
Overstreet, 4 S.W.3d at 715-16 (citing Thompson v. Nat’l R.R. Passenger Corp., 621 F.2d
814, 824 (6th Cir. 1980)). Ms. Rippy testified that she has difficulty sleeping and can rarely
sleep through the night due to her pain. She testified it is difficult for her to engage in the
household chores she formerly enjoyed, such as sweeping, weeding, mopping, gardening, and
any other activity that requires the use of her upper body muscles. While she can do many
of the activities she did prior to the accident, if she does engage in these activities, the next
day is “rough.” When asked whether the accident affected her relationship with her husband,
Ms. Rippy stated:




                                               -8-
        Yes, it did put a strain on our relationship. And today it still does somewhat.
        I mean, when you’ve just been married seven months, you don’t expect your
        wife to stop hugging you all of a sudden. And even today when I try to hug
        him, it hurts my neck, it hurts my shoulders.

Ms. Rippy’s testimony regarding the impact of the accident on her ability to enjoy the
activities and pleasures of life constitutes material evidence supporting the jury’s award of
damages.

       Defendants contend the jury’s award of $1,700 for past loss of earning capacity is
improper because Plaintiffs did not produce documentary evidence to support her claim for
lost wages. Defendants failed to provide any authority indicating plaintiffs are required to
produce documentary evidence of lost wages, and we have found none.

       Ms. Rippy testified she had to miss approximately 134 hours of work to attend
physical therapy sessions and, at the time of the accident, she earned $13.04 per hour. Ms.
Rippy testified she incurred a loss in wages of “approximately $1,700.” Ms. Rippy’s
testimony is material evidence supporting the jury’s award for past loss of earning capacity.5

        E. Total Amount of Jury’s Award

       Defendants alternatively contend that the amount of Plaintiffs’ recovery should be
limited to $40,637.00—the amount of damages Plaintiffs’ counsel requested in both opening
and closing statements. In support of this argument, Defendants assert that Plaintiffs’
counsel’s request constituted a verbal amendment to the ad damnum of the Complaint, and
consequently, the jury award could not exceed the amount requested. Defendants’ argument
is without merit.

        The complaint requests a “judgment against [Defendants] for compensatory damages
for a fair and reasonable sum to be determined by a jury of twelve (12) peers under the law
and the evidence.” Just as arguments of counsel are not evidence, arguments do not serve


        5
            The charge to the jury relative to loss of earning capacity included the following:

        Loss of earning capacity is the value of earning capacity that has been lost in the past as a
        result of the injury in question. It is not the loss of time or actual earnings that make up this
        item of damages, but the loss of the ability to earn. The loss of the ability to earn money
        may include, but not be limited to, actual loss of income.

       To the extent the instruction was ambiguous, no objection was made at trial and no issue is raised
on appeal that the jury was not properly instructed or permitted to make an award for lost income.

                                                      -9-
to comply with Rule 15, Tenn. R. Civ. P., which requires consent of the adverse party or
leave of court to amend a pleading. Here, Plaintiffs did not seek to amend the Complaint to
set forth a specific ad damnum and the record does not reflect any effort by Defendants to
limit the Plaintiffs’ demand. Counsel is given wide latitude in argument and there is nothing
in counsel’s argument that operates to place a cap on the jury’s award.6 See McCrory v.
Tribble, No. W2009-00792-COA-R3-CV, WL 1610587 at *6 (Tenn. Ct. App. April 22,
2010) (citing State v. Brown, No. W2008-01866-CCA-R3-CD, 2010 WL 22812, at *6 (Tenn.
Crim. App. Jan. 5, 2010) (“Tennessee courts have traditionally afforded counsel wide latitude
in the content of their closing argument to the jury.”). The total sum awarded by the jury was
within the scope of the pleadings, consistent with the instruction of the court and supported
by the evidence.

III. Conclusion

      For the reasons set forth above, we find no reversible error in the trial court’s
evidentiary rulings and we affirm the jury’s verdict of $94,637.29.




                                                            ____________________________
                                                            RICHARD H. DINKINS, JUDGE




       6
           In his opening argument counsel stated:

       At the end of the day we”ll be asking for a verdict in the amount of $40,637. And I’m going
       to explain to you exactly how we arrive at that figure. There’s no science to this. And I will
       give you a road map. You can accept it, you can reject it, you can go higher, you can go
       lower. That’s your prerogative. You have the power.

                                                     -10-
