OPINION
Aрpellant-defendant St. Mary's Medical Center of Evansville, Inc. (the Hospital) appeals the jury verdict granted to appel-lee-plaintiff Gregory J. Loomis, M.D. Specifically, the Hospital argues that the trial court abused its discretion in denying the Hospital's motion for judgment on the evidence and in refusing to give an instruction stating that Dr. Loomis was a licensee on the Hospital's premises instead of an invitee at the time of the accident. The Hospital also contends that the $16,950,000 damage award is excessive. Concluding that the trial court did not abuse its discretion and that the damage award is not excessive, we affirm. 1
FACTS
The facts most favorable to the verdict reveal that Dr. Loomis, a neurosurgeon in private practice in Evansville, had surgery privileges at the Hospital. On November 19, 1998, Dr. Loomis was visiting his patients in the east wing of the Hospital's fourth floor (4-East). Dr. Loomis stopped at the 4-East pantry to pour himself a cup of coffee. Dr. Loomis, other physicians, and the Hospital's employees regularly used the pantry for coffee breaks. As he entered the pantry, he noticed that the pot was not near the cоffee maker. He saw the pot, full of water, sitting near the sink at the opposite end of the room. He walked to the sink, picked up the pot with his left hand, turned toward the coffee maker, took a step, and slipped. Dr. Loomis fell backwards onto his left side. He landed on the region of his left kidney. His outstretched left arm hit the floor as well, the water in the pot sloshing out to Dr. Loomis's left, When he sat up, water was on the back of his serubs in the area where he had landed. A nurse's assistant *278 and secretary entered the pantry after hearing Dr. Loomis fall. Upon arrival, they sаw Dr. Loomis sitting up, holding his left arm.
Lisa Bihm, the assistant nurse manager for 4-East prepared an incident report, noting that there had been water on the floor of the pantry. Bikhm escorted Dr. Loomis to Employee Health Services. When Dr. Loomis expressed embarrassment about his fall, Bihm responded, "There's always water on the floor." Ap-pellee's App. p. 27. Patricia Borst, a nurse practitioner with Employee Health Services, noted that Dr. Loomis complained of pain in his left flank and left elbow, along with the fact that Dr. Loomis's back was wet.
After the accident, Dr. Loomis developed severe pain in his left elbow. While Dr. Loomis had had surgery on his elbow in September 1998 for "tennis elbow," the pain after the slip was "the worst pain [he had] ever had in [his] life." Appellant's App. p. 32. The pain kept him from sleeping at night. While Dr. Loomis usually performed about 250 surgeries per year, after his fall he could perform only three, and those with great difficulty.
Dr. Loomig's condition worsened. He developed an arm tremor. The hair on his arm fell out and the skin underneath became shiny. His arm would occasionally turn purple, and his arm muscles atrophiеd. He began to compensate by using his right arm, but the overuse he placed on the right arm produced carpal tunnel syndrome and arthritis in that arm.
By December 1998, Dr. Paul Perry, Dr. Loomis's physician, diagnosed reflex sympathetic dystrophy (RSD), a syndrome where the body's repair mechanisms are activated in response to a normal injury "but never get turned off." Appellee's App. p. 228-29. Dr. Perry testified that the symptoms Dr. Loomis was experiencing were unlike those associated with tennis elbow. In April 1999, Dr. Loomis stopped seeing patients on account of the pain in his arm and sold his рractice. Shortly thereafter, Dr. Perry told Dr. Loomis that it was unlikely he would ever be able to practice neurosurgery again.
On December 15, 1999, Dr. Loomis filed a complaint against the Hospital, alleging that the Hospital negligently failed to maintain its floor in a reasonably safe condition. After motions for partial summary judgment filed by both parties were denied, a jury trial began on July 24, 2001. After Dr. Loomis rested his case, the Hospital moved for judgment on the evidence, alleging that no evidence existed to show that the 4-East pantry was in a dangerous condition and that it owed Dr. Loomis no duty. The trial court denied the Hospital's motion.
Both parties submitted final jury instructions. One of the Hospital's tendered instructions defined the term "licensee" and outlined the duty owed to a licensee by an occupier of land. 2 The trial court refused the Hospital's instructions and instead instructed the jury that Dr. Loomis was an invitee to whom the Hospital owed a duty of reasonable care.
On July 31, 2001, the jury returned a verdiet for Dr. Loomis. The jury assessed 100% of the fault to the Hospital and none against Dr. Loomis. The jury awarded Dr. Loomis $16,950,000 that constituted damages for loss of income, pаin and suf *279 fering, and medical expenses. The Hospital now appeals.
DISCUSSION AND DECISION
I. Motion for Judgment on the Evidence
The Hospital contends that the trial court abused its discretion in denying the Hospital's motion for judgment on the evidence. Specifically, the Hospital argues that it had no notice of any dangerous condition in the pantry and that it exercised reasonable care in keeping the premises safe. The Hospital also maintains that Dr. Loomis failed to show that the Hospital's negligence proximately caused his injuries.
When reviewing the grant or denial of a motion for judgment on the evidence, this court uses the same standard as the trial court. Schloot v. Guinеvere Real Estate Corp.,
A. Notice
The Hospital argues that no evidence was offered to support a finding that it had notice that the 4-East pantry presented a danger. Appellant's Br. p. 31. Specifically, the Hospital argues that its employees did not notify it of a dangerous condition because the employees themselves did not consider the pantry to be dangerous.
This court has held that the issue of notice of a dangerous condition is an issue of fact for the jury. Schloot,
This court has held that employees' knowledge of a dangerous condition may be imputed to their employer. Southport Little League v. Vaughan,
In arguing that it had no notice of the floor's dangerous condition, the hospital notes that Laura Mitchell, a nurse that works on 4-East; Lisa Bihm; and Virginia Happe, director of the Ortho-Neuro surgical unit at the Hospital, all testified that no one had fallen in the pantry before. "I'r. p. 439, 631, 648. While acknowledging that at least nine nurses testified that they had seen ice or water occasionally on the pantry floor, the Hospital notes that the nurses would clean the ice or water off the floor when this occurred. Tr. p. 485, 460, 477, 528, 527, 581, 548, 550, 568. Finally, the Hospital observes that the nurses who slipped neither reported the slips nor prepared incident reports because they did not consider the pantry to be dangerous. Tr. p. 486, 456, 474, 491-92, 528, 588, 544, 569.
While the Hospital's argument holds merit, it did not entitle the Hospital to judgment оn the evidence. In this case, twelve employees, including the chairman of the Hospital's safety committee, testified that water or ice was occasionally on the floor of the pantry. Appellee's Br. p. 7-8. Additionally, eight employees testified that they had slipped in the pantry. Tr. p. 486, 456, 474, 491-92, 528, 588, 544, 569. Thus, just as did the Little League employees in Vaughan, the Hospital's personnel gained knowledge about the pantry that should have raised a "red flag." Id. at 275. The evidence provided at least a reasonable inference that the Hospital knew or should have knоwn about the danger posed by the pantry floor. Therefore, the trial court committed no error in rejecting the Hospital's motion for judgment on the evidence. Schloot,
B. Exercise of Reasonable Care
The Hospital argues that no evidence supports a finding that it failed to exercise reasonable care in managing the condition of the pantry's floor. Appellant's Br. p. 34. Specifically, the Hospital argues that it equipped the pantry with a slip-resistant floor, cleaned the floor daily, and inspected the floor twice per month. Tr. p. 561, 1346. No.accidents in the pantry had bеen previously noted. Tr. p. 1848-50.
Whether a defendant has breached its duty of care is generally a question of fact. MacDonald v. Maxwell,
Our supreme court has held that a showing that a knowable dangerous condition exists can support a finding that the defendant failed to exercise reasonable care. F.W. Woolworth Co. v. Moore,
In like manner, the water on the pantry floor could have easily beеn found through reasonable inspection. Several employees knew of the presence of water or ice on the floor (see Notice, supra). Here, Dr. Loomis's expert witness regarding safety standards of the Joint Commission on Hospital Accreditation of Healthcare Organizations testified that "there was a constant problem, a regular problem with water or ice on the floor in that room." Appellee's App. p. 219. The witness also testified that he had recommended that non-slip floor mats be placed on the 4-East pantry floor аnd that such an action would have "substantially reduced the hazard" of slipping. Appellee's App. p. 224-25. The Hospital's failure to act even though it had notice of the dangers of the 4-East pantry is sufficient to support the jury's finding that the Hospital failed to exercise reasonable care. Id. Thus, the trial court committed no error in refusing to grant the Hospital's motion for judgment on the evidence.
C. Proximate Cause
The Hospital maintains that Dr. Loomis put forth no evidence of what caused him to fall and that Dr. Loomis's claim that water caused him to fall is "pure speculation." Appellant's Br. p. 39. The Hospital notes that Dr. Loomis admitted that he had not looked at the pantry floor the day he fell. Tr. p. 828-24. Stephanie Fields, a nurse at the Hospital, testified that she was in the pantry shortly before Dr. Loomis's fall and saw no ice or water on the floor. Tr. p. 570.
The Hospital is correct in arguing that speculative evidence is inadequate to support a finding of proximate causation and, therefore, negligence. Appellant's Br. p. 37 (citing Midwest Commerce Banking Co. v. Livings,
In this case, however, Dr. Loomis testified, "The water on my back was where I slipped. I fell on the water that I slipped on." Appellee's App. p. 25. Additionally, Dr. Loomis testified that the back of his surgery scrubs was wet. Appellee's App. p. 23. Finally, Lisa Bihm, who completed the incident report after Dr. Loomig's fall, indicated in the incident report that she believed the accident happened because of "H20O on floor." Appellee's App. p. 205.
In Livings, no evidence was put forth regarding the cause of the plaintiff's fall, and the plaintiff admitted that she was speculating as to the cause of her fall. Id. Here, Dr. Loomis's testimony and Bihm's report suggest that water was involved in causing the accident.
The evidence presented at trial is not "susceptible of only one inference" in the Hospital's favor. Schloot,
IIL Dr. Loomis's Status
The Hospital argues that the trial court abused its discretion by refusing to give a jury instruction on the duties owed to a licensee. Specifically, the Hospital contends that "the jury needed to decide whether Dr. Loomis was an invitee or a *282 licensee." Appellant's Br. p. 46. Additionally, the Hospital assigns error to the trial court's determination that Dr. Loomis was an invitee, maintaining that the evidence presented showed that Dr. Loomis was a licensee.
We first note that the decision to give or deny a tendered jury instruction is left to the discretion of the trial court. Morgen v. Ford Motor Co.,
Our suрreme court has held that the standard of care that will be imposed on a defendant in a premises liability case is dictated by the plaintiffs status on the land when an injury occurs. Burrell v. Meads,
The Hospital claims that "a party is entitled to an instruction on his theory of the case if warranted by the issues and evidence presented." Carroll v. Statesman Ins. Co.,
In exercising its discretion in whether to give the Hospital's instruction, the trial court had to decide whether the evidence in the record supported the Hospital's instruction. A person is an invitee if "the possessor [of land] encourages another to enter to further his own purpose such that there arises the implicit assertion that reasonable care has been exercised to make the place safe for the оne who came for that purpose." Burrell,
The Hospital admits that Dr. Loomis was an invitee before he entered the 4-BEast pantry. Appellant's Br. p. 48. However, the Hospital argues that Dr. Loomis exceeded the seope of his invitee status upon entering the pantry, as signs posted on the pantry doors read "Employees Only." Tr. p. 421. Dr. Loomis was not an employee of the Hospital but did refer patients to St. Mary's, where he performed their surgeries. Appellee's App. p. 1.
The evidence presented at trial, however, showed that the signs on the pantry doors were not meant to exclude the physi-clans. Keith Kahre, chairman of the Hospital Safety Committee, testified that the signs were "a courtesy [sic] way of telling families, patients, and visitors that this is an area that you should not be in." Appel-lee's App. p. 159. Additionally, the Hospital admitted that Dr. Loomis used the 4- *283 East pantry from 1998 until the date of the accident but that it never asked him or other physicians to leаve during that time. Appellant's Br. p. 12. The director of the 4-East floor, Candi Cauvel, testified that doctors would use the pantry but were never asked to leave. Appellee's App. p. 138.
The record shows that it was "usual, ordinary, and customary" for physicians to use the pantry. Id. Thus, the trial court decided that an invitee instruction was warranted. The court's decision that Dr. Loomis was an invitee is not "against the logic and effect of the facts and circumstances" presented at trial. Harris,
III. Damages
The Hospital argues that the jury's award of $16,950,000 in damages was excessive. Specifically, the Hospital argues that the jury award was artificially inflated by evidence of Dr. Loomis's practice's earnings and by a speculative work-life expectancy. The Hospital also maintains that the jury's finding that it was 100% at fault is contrary to the evidence.
In addressing this issue, we first note that our supreme court recently held that "a jury determination of damages is entitled to great deference when challenged on appeal." Seаrs Roebuck and Co. v. Manuilov,
A. Use of Past Earnings in Earnings Projections
The Hospital argues that the jury's award was based on mere speculation. Specifically, the Hospital alleges that the income figures used by Dr. Loomis's experts included the fees generated by Dr. Loomis's associates. Each associate in Dr. Loomis's practice stayed only briefly, and Dr. Loomis had no assurance that he could recruit another associate because nationwide only ninety neurosurgeons graduated each year. Appellant's Br. p. 48.
This court has held that the "basic measure of damages for lost earnings capacity is the difference between the amount which the plaintiff was eapable of earning before the injury and the amount which he was capable of earning thereafter." State v. Totty,
On review, we will not disturb a jury damage award unless the record is totally devoid of evidence supporting the amount of the award. Manuilov,
B. Fees Generated by Loomis's Practice
The Hospital alleges that the jury erred in its damages calculation by taking into account not only Dr. Loomis's individual efforts but also prоfits generated by Dr. Loomis's investment of capital and employment of others. Appellant's Br. p. 50. Specifically, the Hospital argues that Dr. Loomis relied upon other employees to produce up to one-half of the fees generated by his practice. Appellant's Br. p. 51.
Our supreme court has held that a physician should be allowed "to prove what his practice had been worth prior to the injuries." Carthage Turnpike Co. v. Andrews,
Since the experts' valuation of Dr. Loomis's practice support the jury's award, we will not disturb the award on appeal. Manuilov,
C. Work Life Expectancy
The Hospital argues that the jury's award was artificially inflated because the expert witnesses' calculations included "unsupportable" work-life expectancies. Appellant's Br. p. 58. Specifically, the Hospital argues that Dr. Loomis's pri- or injuries impaired his ability to perform surgery before the fall in the pantry. Appellant's Br. p. 58.
Dr. Loomig's existing injuries were not kept hidden from the jury. Dr. Loomis testified that he developed pain from his "tennis elbow" two years before his accident. Appellee's App. p. 77. The Hospital argued that even before his fall Dr. Loom-is's arm pain was causing him to "slid[el down the slippery slope of never being able to perform surgery again well before this fall." Tr. p. 1422.
The jury also heard evidence that Dr. Loomis's arm was fine before the fall. His "tennis elbow" pain was "completely gone" after surgery. Appellee's App. p. 82. He was performing surgeries the month before his accident. Appellee's App. p. 102. The day of his fall, he performed a delicate surgery on the neck of a patient. Appel-lee's App. p. 8. Dr. Perry testified that the surgery to repair Dr. Loomis's "tennis elbow" was successful. Appellee's App. p. 241.
Evidence in the record supports the jury's award. The evidence was conflicting as to the state of Dr. Loomis's arm before his fall, but conflicting evidence is insufficient to disturb a jury's damage award, inasmuch as we view the evidence that was favorable to the judgment. Manuilov,
D. Comparative Fault
The Hospital argues that the jury's finding that it was 100% at fault is not supported by the evidence inasmuch as *285 Dr. Loomis failed to exercise due care for his own safety by not looking at the floor fоr possible dangers. Appellant's Br. p. 39.
We note that the apportionment of fault is uniquely a question of fact to be decided by the fact-finder. Hampton v. Moistner,
The Hospital, citing a Louisiana case, alleges that Dr. Loomis had a duty to observe the floor. Lloyd v. TG & Y Stores Co.,
A customer has the duty to see and avoid obvious hazards. However, in examining the evidence in these types of cases, the court will take cognizance of the natural tendency of the shopper to focus on the displayed merchandise rather than down at the floor in front of him.
Id. (emphasis added).
In Lloyd, the plaintiff slipped on a spill "the size of a large pizza, and yellowish in color on a white floor." Id. Here, Dr. Loomis slipped on a light tan floor. Ap-pellee's App. p. 20. The substance he slipped on is alleged to be water, not a yellowish liquid. Appellee's App. p. 25. Dr. Loomis did not amble across the floоr in a careless manner but "picked [the pot] up, turned, and took a step or two" before slipping. Appellee's App. p. 21.
While perhaps the pizza-sized, yellowish liquid on the white floor was an obvious hazard in Lloyd, the evidence is not so clear in this case. The evidence presented is not such that "there is no dispute in the evidence and the fact-finder is able to come to only one logical conclusion." Hampton,
CONCLUSION
In light of the disposition of the issues set forth аbove, we conclude that the trial court did not err in denying the Hospital's motion for judgment on the evidence and in refusing to give a jury instruction regarding the duties owed to a licensee. We also conclude that the jury's damage award was not excessive. ;
Judgment affirmed.
ORDER
This Court having heretofore handed down its opinion in this appeal on December 17, 2002, marked Memorandum Decision, Not for Publication.
Comes now the Appellant, by counsel, and files herein Motion to Publish Memorandum Decision, alleging therein, inter alia, that the Memorandum Decision in this appeal clarifies a rule of law concerning premises liability law; that the opinion involves unique legal issues that affect a large number of Indiana litigants and therefore the decision meets the standard of a decision that shall be published under Appellate Rule 65(A).
The Court having examined the Appellant's said Motion, having reviewed its opinion in this case and being duly advised, now finds that Appellant's Motion to Publish Opinion should be granted.
IT IS THEREFORE ORDERED that the Appellant's Motion to Publish Memorandum Decision is granted and this Court's opinion heretofore handed down in this case on December 17, 2002, marked *286 Memorandum Decision, Not for Publication, is now ordered published.
Notes
. We suspended consideration of this appeal until December 1, 2002. Although the parties have been in mediation, they were unable to reach an agreement. Therefore, we proceed to decide this case on the merits based upon the briefs that have been submitted by the parties.
. The Hospital's instruction read, in relevant part: Licensees enter premises for their own convenience and at their own risk and enter the property as they find it. The owner owes a licensee the duty to refrain from willfully or intentionally injuring him or acting in a manner that will increase the licensee's peril. Appellant's App. p. 571.