Scheffert v. Cheney, No. S0092-11 CnC (Tomasi, J., Mar. 28, 2011)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Chittenden Unit                                                                            Docket No. S0092-11 CnC

                                                                         )
Bridget Scheffert,                                                       )
                                                                         )
            Plaintiff/Appellant,                                         )
  v.                                                                     )
                                                                         )
Torri Demar Cheney,                                                      )
                                                                         )
            Defendant/Appellee.                                          )


           Plaintiff/Appellant Bridget Scheffert makes this partial appeal from a

judgment entered in her favor against Defendant/Appellee Torri Demar

Cheney in the Small Claims Court. Based on an incident where Cheney

admittedly pushed Scheffert into a pool and caused Scheffert injury, the

lower court awarded Scheffert $1,969.70 in damages and court costs. That

amount included all of the medical expenses Scheffert claimed to have

incurred in connection with the incident.

           The instant appeal challenges the Small Claims Court’s decision to

award no damages for pain, suffering or inconvenience caused by the injury

that Scheffert suffered. For the reasons that follow, the Court finds in favor

of Scheffert and remands this matter to the Small Claims Court to give

further consideration to whether damages for pain, suffering, and

inconvenience related to Scheffert’s injury are appropriate in this case.
                             Standard of Review

      An appeal from a small claims judgment is heard and decided “based

on the record made in the small claims procedure.” 12 V.S.A. § 5538. The

“appeal is limited to questions of law.” V.R.S.C.P. 10(d). If the Small Claims

Court has applied the correct law, this Court will affirm its “conclusions if

they are reasonably supported by the findings.” Maciejko v. Lunenburg Fire

Dist. No. 2, 

, 543 (2000) (mem.).

                                   Analysis

      The sole issue on appeal is whether the lower court’s decision not to

award damages for pain, suffering, and inconvenience is sustainable. Based

on a review of the record, the Court concludes it is not. The Small Claims

Court declined to award such damages based on its finding that there had

been “no evidence submitted of any other pecuniary loss or any other basis on

which the court could award damages for inconvenience or pain or suffering.”

The record, however, is to the contrary.

      While the testimonial evidence did not go into great detail regarding

pain and suffering, it is incorrect to say no such evidence was presented.

Scheffert testified as to her increasing pain over the three days following the

incident. She also stated that the pain caused her to wear different shoes, to

go to the emergency room, to see her primary-care doctor, to cancel a planned

trip to visit her daughter out of state, to be on crutches for a week, and to go

through roughly six weeks of physical therapy. She testified that the pain




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did not fully subside for approximately three months. In addition, the

medical and physical therapy records submitted to the lower court as an

exhibit contain numerous examples of Scheffert’s descriptions of her pain.

The records purport to show that the pain continued for at least one and one-

half months following the accident.

      Further, Scheffert testified that she endured a number of

inconveniences associated with the injury, including, among other things,

the missed trip to visit her daughter, which was to help her daughter plan

her wedding; and Scheffert’s multiple, long-distance trips to her physical

therapy appointments while trying to start a new job.

      Much of this testimony and evidence was unrebutted and

uncontradicted by Cheney. Cheney did offer evidence to question Scheffert’s

pain on the night of the incident, but Scheffert had testified that the pain did

not become aggravated until the following day.

      Against this record, the lower court’s finding that there was

no evidence of damages in excess of the medical and physical therapy bills

cannot be affirmed.

      Indeed, in analogous contexts, the Vermont Supreme Court has

reversed as fatally inconsistent jury verdicts that awarded payments for

medical bills incurred as a result of injuries but awarded little or no damages

for pain and suffering related to the same injuries. See Smedberg v. Detlef's

Custodial Serv., Inc., 

, ¶9, 

, 355 (where there was




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reasonable and substantial evidence at trial that plaintiff had suffered and

would suffer pain, there was no plausible explanation for jury to award

medical expenses but nothing for past or future pain and suffering); Nourse v.

Austin, 

, 185 (1981) (reversing judgment where jury gave award

adequate to cover medical expenses, but “clearly inadequate” to cover pain

and suffering); see also Brooks v. Brattleboro Mem’l Hosp., 

, 530

(2d Cir. 1992) (same ).

      While a decision not to award pain and suffering damages or damages

for inconvenience might very well be appropriate under certain

circumstances, the ruling of the court below simply stated there was no

evidence presented as to pain and suffering or inconvenience. As the Court

concludes that ruling to be incorrect as a matter of law, the decision in that

regard must be reversed.

                                 Conclusion

      In light of the foregoing, the ruling of the Small Claims Court that

Scheffert is not entitled to damages for pain, suffering, and inconvenience is

REVERSED. The matter is remanded to the Small Claims Court for a

hearing to consider whether such damages are appropriate in this case.

      Dated at Burlington, Vermont this __ day of March, 2011.


                                               -------------------------------
                                               Timothy B. Tomasi
                                               Superior Court Judge




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