This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-1767

Evelyn Rasmussen,

Respondent,

vs.

St. Paul Public Housing Authority,

Appellant.

Filed March 11, 1997

Affirmed.

Randall, Judge

Ramsey County District Court

File No. C4-96-61

Gregory M. Weyandt, Rider, Bennett, Egan & Arundel, 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent).

Dan T. Reyerson, James T. Martin, Gislason, Martin & Varpness, 7600 Parklawn Avenue South, Suite 444, Minneapolis, MN 55435 (for appellant).

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant St. Paul Public Housing Authority (PHA) challenges the district court denial of the PHA's motion for new trial on the issue of damages. Claiming that the jury awarded respondent Evelyn Rasmussen excessive damages, the PHA argues that the district court should have ordered a new trial. We affirm.

FACTS

Rasmussen was injured when a recently-repaired window weighing approximately 30 pounds fell on her head in her PHA apartment. The accident caused a compression fracture of Rasmussen's spine. Testimony from the record shows the injury was accompanied by extreme pain at the fracture site and in the thoracic nerve. Rasmussen's treating physician testified that although the pain decreased a few weeks after the accident, at the time of trial, 14 months after the accident, it still had not disappeared. The physician characterized Rasmussen's pain as a chronic stable problem that will persist into the future.

The jury award was $30,000 for past pain, disability, and emotional distress, $20,000 for future pain, disability and emotional distress, and $3,100 for future medical expenses.

Appellant does not contest its 100 percent negligence as assigned by the jury, but puts in issue only the district court's refusal to grant a new trial on the issue of damages.

D E C I S I O N

"The discretion to grant a new trial on the ground of excessive damages rests with the trial court, whose determination will only be overturned for abuse of that discretion." Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984). A reviewing court "will not interfere with the jury's award of damages unless its failure to do so would be shocking or would result in plain injustice." Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn. 1986) (citation omitted).

Appellant claims that based on Rasmussen's short "actuarial" life expectancy of 3.25 years, the trial testimony can sustain an award for future medical expenses of only $975 rather than $3100. Appellant concedes that its argument is based on multiplying projected medical expenses precisely times 3.25. We are not persuaded. We note settled law that mortality tables are based on the average life expectancies of extremely large groups of people and that although they are evidentiary, they are never determinative or decisive of the injured person's life expectancy.

[M]ortality tables, based on the average life expectancy of a large group of persons, have considerable evidentiary value, but they are [not] decisive of the injured person's life expectancy * * * . These tables are but one of several evidentiary factors to be weighed in ascertaining life expectancy * * * .

Hallada v. Great N. Ry, 244 Minn. 81, 95, 69 N.W.2d 673, 685 (1955), overruled on other grounds, 262 N.W.2d 377 (Minn. 1997); see also Tollefson v. Ehlers, 252 Minn. 370, 377, 90 N.W.2d 205, 210 (1958) (stating that a jury is not required to accept mortality figure as life expectancy); Thoirs v. Pounsford, 210 Minn. 462, 467, 299 N.W. 16, 18 (1941) ("Some people far outlive the expectancy shown in such tables * * * .").

Appellant argues that what it calls "excess" future medical expense damages of $2,125 is enough to require, not only a remittitur, but a total reversal and remand for a new trial based on all elements of damage. Appellant argues that since the jury must have been "so inflamed by passion and prejudice" to award $3100 in future medical expenses when appellant says only $975 can be justified, that is compelling evidence that the entire damage award was tainted. We are not persuaded.

Rasmussen, a 90-year-old woman at the time of the accident, was already suffering from age-related health problems, including poor vision, degenerative joint disease, and a previous fractured vertebrae. However, appellant concedes that defendants "take plaintiffs as they find them," and appellant agrees that the jury was instructed properly as to how to award damage for past and future pain resulting just from the accident at issue. There was trial testimony that before the accident Rasmussen led an active and independent life, for a 90-year-old woman, and that after the accident her independence has been diminished and there is a loss of mobility attributable to the accident. On this record, appellant has failed to show that the district court abused its discretion when it refused to grant a new trial on the grounds of excessive damages.

Affirmed.