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04/21/95 MARILYN KAY SMITH v. MATTHEW G. DARRING

April 21, 1995

MARILYN KAY SMITH
v.
MATTHEW G. DARRING



Appeal from Mobile Circuit Court. (CV-93-2808).

Sam A. Beatty, Retired Justice. All the Judges concur.

The opinion of the court was delivered by: Beatty

BEATTY, Retired Justice

Marilyn Kay Smith appeals from the trial court's denial of her motion for new trial. Smith's motion alleged inadequacy of the damages awarded to her by the jury. We reverse and remand.

Smith sued Matthew G. Darring, alleging negligence and wantonness in regard to an automobile accident. The record reflects the following facts. On Thursday, February 18, 1993, Smith stopped her automobile in traffic after a school bus stopped in front of her. Darring's automobile struck Smith's from the rear. The impact knocked Smith's automobile off the road, where it rolled over into a concrete drainage ditch and came to a stop upside down. Paramedics examined Smith at the scene; she complained of pain in her neck, in her right arm, and in her back just below her shoulder. Her husband transported her to the hospital. Emergency room personnel examined Smith, prescribed pain medication, and advised her to seek medical attention if her pain did not subside within a few days. Smith was not able to work on the Friday after the accident. The following week, she consulted an orthopedic surgeon, who diagnosed a cervical and trapezius muscle strain and prescribed medication and physical therapy. Smith visited her physician 8 times and her physical therapist 21 times. She also underwent a diagnostic procedure called an MRI to determine whether she had any spinal cord or disc injury. Smith's physician and therapist tried several different kinds of treatment, including an electrical pain-relieving device known as a "TENS unit," and she gradually improved.

Smith's special damages are itemized as follows.

Emergency room $158.00

Orthopedic surgeon 345.00

Physical therapist 1,184.00

TENS Unit 105.39

Prescriptions 27.94

MRI 490.00

One day's wages 117.00

TOTAL ...


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