Campain v. Safeway Stores, Inc.

California Court of Appeal Dec 13, 1972 No. Civ. 39461Published

Before: Fleming

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Holding. The court held that the trial court erred in admitting evidence of loss of earnings after the plaintiff had explicitly disclaimed such damages during pretrial discovery, causing unfair surprise and prejudice to the defendant. Additionally, the court held that the trial judge lacked the authority to unilaterally reduce the jury's damage award without the plaintiff's consent.

Issues

Whether the trial court erred in admitting evidence of loss of earnings after the plaintiff disclaimed such damages in pretrial discovery.
Whether the trial court had the authority to unilaterally reduce a jury's damage award without the plaintiff's consent.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Safeway acted, reasonably in relying on pretrial discovery in the preparation of its case for trial.”

“Safeway was genuinely surprised, and consequently unprepared to meet Campain’s claim for loss of earnings and future earnings when that issue was injected into the trial, and that this surprise prejudiced its defense.”

“Withou( the consent of Campain the court had no power to order a reduction in the amount of the judgment entered on the jury verdict.”

Opinion

FLEMING, J.

Lois Campain slipped and fell while shopping in a Safeway Stores market on 11 July 1966. In her action for personal injuries against Safeway a jury awarded her $75,000 in damages, but on motion for a new trial the trial court ordered the amount of the judgment reduced to $50,000. Safeway and Campain both appeal.

The controlling issue on appeal involves the admissibility of evidence of damages for loss of earnings and future earnings. In November 1966 Campain filed a complaint praying for $25,000 damages for pain and suffering, medical expenses, and loss of earnings. Her complaint alleged that “plaintiff was prevented from attending to her usual occupation and sustained a loss of earnings and will in the future continue to sustain a loss of earnings.”

In October 1967 Safeway took Campain’s deposition: “[Counsel for Safeway]: Q Were you working at the time of the accident? A No. Q When was the last time you did any work? A I speculated in real estate with my own money, and that was in, oh, around ’55. Q Since then, have you just been a housewife? A Yes, that’s right. [Counsel for Safeway]: Counsel, will there be any claim for loss of earnings? [Counsel for Campain]: I believe she was studying real estate at the time of the accident. There may be a claim for prospective loss of earnings, but we are not claiming that she was employed and lost any immediate employment.”

[365]

In April 1969 when Safeway questioned Campain by interrogatory,

“Are you making any claim for loss of wages, earnings or earning capacity as a result of the accident alleged in your complaint?”

Campain answered,

“No.”

In December 1969 Campain moved to amend her complaint “to increase the general damages allegation and prayer to $350,000.” Campain’s attorney declared that at the time the complaint was filed “the full nature and extent of plaintiff’s injuries were not known. It was not then known that plaintiff had suffered an internal derangement of the left knee as a result of the accident. . . . Plaintiff has a permanently stiffened left knee. She can bear weight on the knee for no more than ten minutes at a time. She suffers constant pain. She requires nearly constant help in performing normal functions. Her doctor has recommended an operation that may relieve the pain, but will leave her with a permanently stiff leg.” Neither in the motion papers nor in argument on the motion was any reference made to loss of earnings or future earnings. In March 1970 the motion to amend was granted.

Campain v. Safeway Stores, Inc.

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FLEMING, J.

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