Released for Publication May 15, 2015.
Appeal from Jefferson Circuit Court. (CV-12-555). James F. Hughey III, Trial Judge.
For Appellant: Joseph H. Driver, Glenn E. Ireland, Justin I. Hale, Carr Allison, Birmingham.
For Appellee: Frank O. Hanson, Jr., Marshall E. Smith III, Smith & Hanson, Fairfield; David C. Skinner, Birmingham.
DONALDSON, Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.
Cajun Operating Company (" COC" ) appeals from a judgment of the Jefferson Circuit Court (" the trial court" ) entered in favor of Arthur Elijah after a jury returned a verdict assessing damages in favor of Elijah and against COC. COC argues that the trial court erred in denying its motion for a judgment as a matter of law following the presentation of the evidence and that it erred in giving an instruction to the jury that Elijah could receive damages for a permanent injury and in giving an instruction regarding the amount of medical expenses Elijah could recover. Because the evidence did not support the instruction permitting Elijah to recover damages for a permanent injury, we reverse the judgment and remand the case to the trial court for a new trial.
Facts and Procedural History
On November 6, 2009, Elijah visited a Church's Chicken restaurant operated by COC for the purpose of purchasing food. Words were exchanged between Elijah and an employee of COC who was working in the restaurant. The employee of COC threw a metal straw container at Elijah, which hit him in the area of his right eye. On November 25, 2009, Elijah sought medical treatment for his eye at a hospital. At that time, Elijah complained of pain and twitching in the area of his right eye as well as sinus congestion. The primary diagnosis of the treating physician was a facial contusion with an additional diagnosis of sinusitis. Elijah was prescribed pain medication and an antibiotic. On November 22, 2010, Elijah saw an eye doctor for twitching in his right eyelid. No eyelid spasms were noted in the medical records of that visit. On February 23, 2011, Elijah reported to an eye physician that he had experienced eyelid spasms while at home; however, the spasms were not observed by
the physician on the day of the appointment.
Elijah filed a complaint against COC in the Jefferson District Court (" the district court" ), seeking to hold COC liable in damages for the assault and battery committed by one of COC's employees. A judgment was rendered in favor of Elijah in the district court. COC filed a timely appeal to the trial court for a trial de novo pursuant to § 12-12-71, Ala. Code 1975, and demanded a jury trial.
A jury trial was held on May 7-8, 2013. Evidence showed that the employee of COC was on duty and performing work on behalf of COC when he became irritated at a comment made by Elijah concerning the quality of the food. The employee picked up a metal container used to hold straws and threw the container at Elijah, striking him near his right eye. COC presented evidence indicating ...