Morgan v. Scott

OPINION OF THE COURT

INTRODUCTION

Among other issues, these appeals ask us to examine the extent of a car dealer’s liability for injuries arising out of accidents that occur during a test drive. We hold that, at least under the facts presented, the dealer should not have been held liable.

We also consider the question of whether a tortfeasor to whom the jury apportioned only a portion of the liability for the plaintiffs’ injuries becomes liable for all of the plaintiffs damages when, on appeal, it is determined that the remaining co-defendant, against whom fault was also apportioned, was not a proximate cause of the injury and should not have been found liable. We conclude that he does.

II. FACTUAL AND PROCEDURAL HISTORY.

The legal questions presented in these appeals are complex, but the essential underlying facts of the appeals are common and simple. Timothy Morgan stopped at Moore Pontiac, Buick, GMC, Inc., to test drive a Chevrolet Silverado pickup truck. After talking about the truck with Morgan for awhile, the salesperson allegedly copied Morgan’s driver’s license1 and set off with Morgan on a test drive.2 Soon, however, the salesperson realized the truck was low on gas, which necessitated a return to the dealership. The salesperson testified that after refueling, he asked Morgan to wait while the salesperson talked to his manager; but Morgan drove off the lot in the Silverado with his family before the salesperson returned. In contrast, Morgan testified that a salesperson did not accompany him on the first test drive and that, believing he had permission to do so, he drove the Silverado off the lot with his girlfriend and child as passengers. What is undisputed is that Moore Pontiac’s company policy required one of its employees to accompany a customer on a test drive.

During the test drive, Morgan lost control of the Silverado, crossed into another lane of traffic, and struck a vehicle driven by Candria Scott. A light misty rain was *629falling, and Morgan surmised that the Sil-verado hydroplaned. Candria Scott injured her knees and fractured her left femur.

Candria Scott and her husband, James, sued Morgan and Moore Pontiac to recover for Candida’s injuries and James’s loss of consortium. The Scotts claimed that Morgan had driven negligently and that Moore Pontiac had failed in its duties to ensure the safe operation of its vehicle. The case eventually went to trial, where Morgan admitted causing the accident. The trial court directed a verdict on Cand-ria’s past medical bills ($274,339.28). The jury apportioned fault equally between Moore Pontiac and Morgan.3 In addition to the past medical bills, the jury awarded Candria $1,160,200.00 in future medical bills; $500,000.00 in past mental or physical pain and suffering; $2,000,000.00 in future mental or physical suffering; and awarded James $100,000.00 for loss of consortium. The trial court entered judgment accordingly.4

Moore Pontiac and Morgan each filed an appeal. The Court of Appeals affirmed as to Morgan, but reversed as to Moore Pontiac, finding that “Moore Pontiac’s adoption of the internal policy [requiring a Moore Pontiac employee to be present for test drives] does not expose it to liability to Scott....” A divided panel of the Court of Appeals, however, granted the Scotts’ petition for extension of its original opinion and issued a new opinion in which it added language remanding the case “with directions that Morgan be designated as liable for 100% of the assessed damages.” Morgan, the Scotts, and Moore Pontiac all filed petitions for discretionary review. We granted discretionary review in all three cases, and we resolve all three in this combined opinion.

III. ANALYSIS.

A. We Affivm the Court of Appeals as to the Scotts’ Appeal.

The Scotts contend that the Court of Appeals erred in ruling that Moore Pontiac had no legal liability for the accident and the resulting injuries. We disagree.

It has long been the law in this Commonwealth that a vehicle’s owner, such as a dealership, is not liable for injuries sustained by a third party during a test drive if the vehicle’s owner or a representative of the owner, such as a salesperson, is not present in the vehicle during the test drive. On the other hand, a vehicle’s owner may potentially be liable for injuries sustained by a third party if the owner or his or her representative is present during the test drive.5 Our holdings *630on those issues appear to be in accord with the general rule in these types of cases.6

The Scotts do not contest this settled rule of law. They actually concede the established Kentucky precedent regarding a dealer’s liability for an accident occurring during a test drive.7 But the Scotts contend that precedent is not pertinent because they argue that Moore Pontiac’s liability arises from its own independent acts of negligence rather than being held vicariously liable for Morgan’s negligence. Toward that end, the Scotts present two theories under which they contend Moore Pontiac should be hable for their injuries. First, they contend that Moore Pontiac’s actions (or inaction) cause it to be liable under our oft quoted statement in Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell that “every person owes a duty to every other person to exercise ordinary care in his activities to *631prevent foreseeable injury.”8 Certainly we agree with the principle espoused in that statement, but we disagree with the Scotts that its application leads to liability for Moore Pontiac.

First, Claywell is factually dissimilar to the case at hand because Claywell involved dram shop liability. And we later noted that much of our holding in Claywell might have been superseded by statute.9 Second, and more importantly, our language in Claywell did not speak of creating new causes of action. Rather, our statement was an expression of the general principle that each member of the public owes the remainder of the public a duty to exercise reasonable care in his or her everyday affairs.

As the Court of Appeals has noted, Claywell is often invoked “by parties advocating a theory of liability or a cause of action where none previously existed and legal authority is otherwise lacking. De-spite its use of the catch phrase ‘universal duty of care,’ the Grayson case itself demonstrates that the duty referred to is not without limits.”10 Indeed, we remain committed to the longstanding tort principle that liability based upon negligence is premised upon the traditional prerequisites, such as proximate cause and foreseeability.11 Simply put, the concept of a universal duty of care is not so broad as to lead to a conclusion that a vehicle’s owner has automatically breached a legal duty of care simply by permitting an apparently competent driver to take the owner’s vehicle for a test drive. Or, in other words, a vehicle owner generally satisfies his or her duty of care in test-drive situations simply by determining before the test drive that the prospective purchaser and test driver is duly licensed and is otherwise not obviously impaired.12 Since Moore Pontiac met its relatively low burden to ascertain that Morgan was not an incompetent driv*632er, we reject the Scotts’ claim that the unfortunate circumstances of this case are so extraordinary as to hold Moore Pontiac liable for a purported breach of ordinary care to the Scotts.13

The Scotts’ second and closely related theory of recovery is that Moore Pontiac assumed a duty of ordinary care to the Scotts. The gist of the Scotts’ argument is that Moore assumed a duty of care toward the Scotts, and the rest of the public, by adopting and then failing to follow its own in-house rule requiring a Moore Pontiac employee to accompany Morgan on his test drive. We disagree.

We have previously adopted Restatement (Second) of Torts § 324A regarding the elements necessary for liability for the breach of a voluntarily assumed duty.14 Under § 324A, “[o]ne who undertakes ... to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if’ the person’s “failure to exercise reasonable care increases the risk of such harm,” or if “the harm is suffered because of reliance of the other or the third person upon the undertaking.”15 The Scotts cannot meet these criteria.

We agree with the Court of Appeals that the Scotts could not have reasonably relied upon Moore Pontiac’s policy regarding having a salesperson accompany a test driver because the evidence showed that the Scotts were unaware of the policy’s existence. After all, one cannot logically rely upon an unknown. And even if the Scotts had somehow divined the existence of Moore Pontiac’s in-house policy before the accident, they have pointed to no evidence tending to prove that Candria Scott drove differently in reasonable reliance upon Moore Pontiac’s internal policy.

We also agree with the Court of Appeals that Moore Pontiac’s failure to observe its own in-house policy did not increase the risk of harm to Candria Scott. First, we reject any argument that a person or business entity’s adoption of an internal guideline or policy and subsequent failure to follow that internal guideline automatically leads to liability under § 324A.16 Second, we fail to see how Moore *633Pontiac’s failure to abide by its own internal policy increased the risk of harm to Candria. As the Court of Appeals noted, without the internal policy, Moore Pontiac could have “lent its ears to responsible drivers without making itself liable for the damages caused by their negligence. The existence and subsequent non-observance of the in-house rule did nothing to increase this risk. The situation is exactly what it would have been had Moore Pontiac not instituted the policy.” And Morgan testified that he was going under the speed limit before the accident and, furthermore, that he drove more safely during the test drive because his family was with him than he would have driven had the salesperson alone accompanied him. Therefore, it is clear that Moore Pontiac’s failure to observe its in-house policy was not the proximate cause of the Scotts’ injuries, which is fatal to the Scotts’ claims against Moore Pontiac.17 We therefore affirm the Court of Appeals’ conclusion that Moore Pontiac should have been granted a directed verdict dismissing the Scotts claims against it, and that the judgment against Moore Pontiac must be vacated.

B. Because We Have Affirmed the Court of Appeals’ Decision Regarding the Scotts’ Appeal, Moore Pontiac’s Appeal is Moot.

Moore Pontiac filed a separate appeal, essentially arguing that the trial court committed reversible error by allowing the Scotts’ counsel to make improper remarks about Moore Pontiac’s financial condition during closing argument and that Moore Pontiac was entitled to a judgment as a matter of law. We have already affirmed the Court of Appeals’ conclusion that Moore Pontiac should not have been held liable for the Scotts’ damages. So Moore Pontiac’s argument that it was entitled to judgment of a matter of law is moot. Likewise, although we shall address the propriety of the Scotts’ counsel’s closing argument during our discussion of Morgan’s appeal, that issue is moot as to Moore Pontiac.

C. We Affirm the Court of Appeals’ Decision Regarding Morgan’s Percentage of Liability

Morgan contends that the Court of Appeals erred by granting a petition for an extension of its opinion, and then extending its opinion to assign one hundred percent liability and damages against Morgan, despite the jury’s finding that Morgan was only fifty percent responsible for the Scotts’ injuries and resulting damages. We disagree and accordingly affirm the Court of Appeals determination.

In support of his argument that he should bear only fifty percent of the liability for the Scotts’ injuries, Morgan relies primarily upon the decision of this Court in Prudential Life Insurance Company v. Moody,18 a decision premised on KRS 454.040, the statute that allows juries to assess joint or several damages against multiple defendants.19 We find Morgan’s *634reliance upon Prudential Life to be misplaced because it contains a critical factual difference.

In Prudential Life, a jury determined that one party, Carney, was negligent and liable for the plaintiffs injuries, fixing his share of the fault at fifty percent. Carney, however, escaped responsibility for his negligence and the resulting liability because the statute of limitations had expired. He remained, both in fact and in law, “at fault” for the injury, but the running of the statute of limitations put his negligence beyond reach of the jury’s verdict.20 The remaining fifty percent of fault rested with the other tortfeasor. The causal connection between his negligent conduct and the damages did not increase simply because the plaintiff had waited too long to assert a claim against Carney.

In sharp contrast to Carney in Prudential Life, Moore Pontiac escapes liability because it did nothing to incur liability and, as a matter of law, its actions were not a proximate cause of the Scotts’ injuries. The applicability of Prudential Life is further diminished because it was rendered three years before the enactment of KRS 411.182(1), which requires apportionment of fault “[i]n all tort actions ... involving fault of more than one (1) party to the action..., ” Here, there is not “more than one party” at fault. Morgan is the only party at fault. Only Morgan breached a duty and only Morgan caused an injury. In Prudential Life, Carney was at fault but avoided liability because the statute of limitations had expired.21 Here, Moore Pontiac avoids liability for the simple reason that it did nothing that legally or proximately caused the injuries.

Our decision in Owens Corning Fiberglas Corp v. Parrish, is more to the point:

[F]ault may not be properly allocated to a party, a dismissed party or settling nonparty unless the court or the jury first find that the party was at fault; otherwise, the party has no fault to allocate. KRS 411.182; Floyd v. Carlisle Construction Co., Inc., 758 S.W.2d 430, 432 (Ky.1988) “If there is an active assertion of a claim against joint tortfea-sors and the evidence is sufficient to submit the issue of liability to each, an apportionment instruction is required whether or not each of the tortfeasors is a party-defendant at the time of the trial.” Id. (emphasis added). The mere fact that a party has been sued or has settled does not permit the factfinder to allocate part of the total fault to that party.22

What rings clear from Owens Coming is that fault may be apportioned only among those against whom the evidence of liability was sufficient to allow submission of the issue of fault to the jury. The inability of Morgan or the Scotts to present sufficient evidence of fault on the part of Moore Pontiac eliminated any proper allocation of fault to Moore Pontiac. The jury should not have been instructed on apportionment because Morgan was the only party liable. When, under the evidence, only one party is shown to have caused an injury, fault and its resulting liability cannot legally or rationally be apportioned elsewhere. This concept was also expressed by the decision of the Court of Appeals in Jenkins v. Best, in which the appellant claimed the right as a defendant in a tort action to appeal the dismissal of his co-defendant in order to preserve the possibility of an apportion*635ment instruction.23 The Court of Appeals noted that, while this right does exist, “it does not give a party the right to apportion fault to persons whose liability has been judicially determined not to exist.”24 Moore Pontiac’s liability has been judicially determined not to exist. There should have been no apportionment.

Morgan emphasizes that our decision in Hilen v. Hays,25 echoed by the enactment of KRS 411.182, firmly established the concept that it is fundamentally unfair to burden any party with more liability than his share of the fault would justify. We agree, but we can find nothing fundamentally unfair about assigning one hundred percent of the fault for an injury to the only party that breached a duty and caused the injury.

Morgan argues that the Court of Appeals committed a procedural error by granting the Scotts’ request for extension of its opinion regarding issues that were not properly preserved for appellate review. The initial opinion of the Court of Appeals simply reversed the trial court’s judgment regarding the liability of Moore Pontiac and affirmed as to Morgan. Later, the Court of Appeals granted the Scotts’ motion for an extension of that original opinion and then issued a revised opinion which added a provision remanding the matter to the trial court for entry of a judgment against Morgan for all of the damages determined by the jury.

The proper means of preserving the issue, Morgan contends, would have been for the Scotts to have filed a protective cross-appeal. We agree that new issues cannot properly be raised in a petition for rehearing, but we do not see this matter as having raised a new issue, nor do we see how adding a cross-appeal to an already complex procedural appellate process would be necessary to address this matter.26 The Court of Appeals’ initial conclusion that Moore Pontiac’s actions were not, as a matter of law, a proximate cause of the Scotts’ damages left Morgan as the only party whose fault caused the injury and therefore, ipso facto, he was one hundred percent at fault. Correcting of the trial court’s judgment to reflect what the law and the evidence had clearly established was simply the natural aftermath of the Court of Appeals’ original opinion. The Court of Appeals’ decision to extend the Opinion to provide guidance to the trial court in correcting the judgment was well within its purview under Civil Rule 76.32.

D. We Find No Error in Other Issues Raised by Morgan.

Morgan raises seven somewhat interrelated issues in his separate appeal. We review them below, but find no error to warrant reversal.

1. The Trial Court’s Failure to Pre-Screen Segments of Videotaped Deposition Testimony Played for the Jury During Closing Argument was a Harmless Error.

Morgan contends that the trial court erred by permitting portions of a physician’s videotaped deposition testimony to be displayed to the jury during closing argument without first conducting a hearing.27 Although we urge trial courts to *636conduct hearings before exposing such matters to the jury, we decline to hold that the lack of a hearing is, standing alone, reversible error.

We agree with a previous ruling of the Court of Appeals that there is no blanket prohibition against counsel playing selected portions of a videotaped deposition for a jury during closing argument.28 But our opinion should not be misconstrued as holding that a trial court must invariably permit such segments to be displayed to the jury during closing argument.29 Instead, we hold only that the trial courts of the Commonwealth have discretion to permit, or to refuse, the replaying of videotape segments in closing argument.30

If a trial court exercises its discretion to permit the usage of segments of videotapes during closing argument, we emphasize that the trial judges must scrupulously control their playing by ensuring that the segments presented to the jury are not overly lengthy, do not overly emphasize one party’s case, and are not a misrepresentation of the witness’ testimony.31 We also agree with a New Jersey court’s wise pronouncement that a trial court

should give a cautionary instruction, preferably at the time the video is played during summation.... The judge should inform the jury that attorneys are permitted to show the video to assist in displaying what they consider significant testimony, but it is the jury’s function and obligation to determine the facts based on its recollection of all of the evidence, including both direct and cross-examination of all witnesses, and jurors should not place any extra emphasis on portions of testimony played back.32

*637Moreover, if a trial court permits video segments to be played to a jury during closing argument, we agree with another New Jersey court’s holding that a trial court “out of the jury’s presence, should therefore view the proposed portions of the videotape testimony in open court on the record to make sure that it accurately reflects the evidence.”33 This prophylactic hearing should ensure that the trial court exercises proper control over counsel’s proposed use of snippets of video testimony during closing argument, thereby best ensuring that closing argument does not devolve into a contest to determine which side employed the best videographers or editors.34

Although there was discussion in this case between the trial court and counsel on this issue, all parties seem to agree that the trial court did not personally view the snippets the Scotts’ counsel planned to use during closing argument before permitting counsel to display those video snippets to the jury. The trial court’s failure to view the snippets before permitting counsel to display them to the jury was an error. Since we are constrained to “disregard any error or defect in the proceeding which does not affect the substantial rights of the parties[,]”35 we must now determine whether that error was harmless.

Morgan does not contend that the video snippets played to the jury during the Scotts’ closing arguments contained any substantive problems (such as being too lengthy or misrepresenting the doctor’s complete testimony). Instead, Morgan’s sole argument on this issue is that the trial court committed reversible error by failing to view the snippets before allowing the Scotts’ counsel to display them to the jury. In the absence of even an allegation of substantive prejudice to Morgan from the contents of the snippets played to the jury, we conclude that the trial court’s procedural failure to screen the snippets for itself before permitting them to be played for the jury was a harmless error.

2. The Trial Court Did Not Err by Permitting the Scotts’ Counsel to Play Edited Portions of Video Depositions During Trial.

During the Scotts’ case in chief, the Scotts’ counsel played for the jury selected portions of several videotaped depositions. Morgan argues that the trial court erred by permitting the Scotts’ counsel to play only selected portions of those videotaped depositions. We disagree.

CR 32.01 specifically permits a party to play “any part or all of a deposition ....” So there was nothing inherently improper about the Scotts’ counsel’s decision to play only selected portions of these depositions. If Morgan desired the remainder of the deposition(s) to be played for the jury, he could have either required the Scotts to present the remainder of the deposition(s) to the jury or he could have done so himself.36 But Morgan did not avail himself of either option. In these types of situations, we agree with the Court of Appeals’ earlier holding that a trial court is not required to mandate on *638its own motion that additional portions of an edited videotaped deposition be displayed to the jury.37

Moreover, Morgan does not contest the Scotts’ assertion that he refused their offer during trial to introduce the entirety of at least one of the video depositions in question. And because of the objection of another defendant, the trial court admonished the jury that the deposition(s) had been edited.

The only authority cited by Morgan is CR 30.02, which generally governs depositions; but nothing in that general rule contravenes CR 32.01’s clear and specific allowance of the usage of edited videotaped depositions at trial. Finally, we reject Morgan’s argument that he was unable to object properly at trial because the Scotts did not give him adequate notice of their intent to use the edited videotapes during trial. There is no notice requirement in CR 32.01. And it is undisputed that the Scotts’ counsel provided all parties and the trial court with an index describing the video testimony to be presented at trial and referencing the location of that testimony in the stenographic transcript. So we agree with the Court of Appeals that “Morgan had at his disposal the means to specifically identify and locate the portions of the video testimony being presented in order to determine whether additional portions of the testimony would assist the jury in understanding his theory of the case.”

We note that although Morgan contends that he had no time to object to the editing done by the Scotts, he still, despite plenty of time for research and reflection, has not shown us how the editing distorted or otherwise improperly condensed the depositions in question.38 In sum, although we encourage parties to provide as much notice as possible to the trial court and opposing counsel of their intention to use portions of video depositions during trial, we do not find that the trial court erred by permitting the Scotts’ counsel to play selected portions of certain depositions in this case.

3. The’Scotts’ Counsel’s Reference to Morgan’s Financial Status During Closing Argument Does Not Necessitate a New Trial.

During his closing argument, the Scotts’ attorney stated that Moore Pontiac had not sued Morgan for the damage done to its vehicle because it either believed Morgan had done nothing wrong or Moore Pontiac did not think it would “get a dime out of’ Morgan. Although not stated by Morgan, no contemporaneous objection was made to that comment. Counsel later stated that the apportionment instruction was important because it was the “ultimate instruction that determines whether or not Candy [Candria Scott] really gets anything.” Again, although not mentioned by Morgan, no contemporaneous objection was made to this statement. Shortly thereafter, the Scotts’ counsel argued that *639if the jury found Morgan 100 percent liable, the Scotts would get “the same case against him [Morgan], and judgment against him [Morgan] as they [Moore Pontiac] would have had had they filed suit against him [Morgan] for the truck.” A contemporaneous objection was made to that statement,39 along with a motion for mistrial; but the trial court denied any relief.

Many decades ago, our predecessor court eloquently noted that “[t]here is no law applicable to the poor that is not likewise applicable to the rich, nor is any law applicable to the rich that is not likewise applicable to the poor,” meaning that “an endeavor on the part of an attorney or litigant to inflame the minds of the jury by referring to the financial status of either of the parties is improper.”40 We agree with the wisdom of our predecessor court’s statement on this subject and remind counsel that reference to the financial condition of a party to a civil action is generally improper.

The statements at issue patently refer to Morgan’s poverty and, by inference, Moore Pontiac’s deep financial pockets. We agree with the Scotts that counsel is permitted to inform the jury of the legal effect of apportionment of liability,41 but the statements in question go further to imply or directly state that Morgan was virtually penniless. And Morgan’s counsel’s quite unusual decision to argue in closing to the jury that his client, not Moore Pontiac, should be found primarily responsible for the Scotts’ injuries was not linked to the relative financial status of Moore Pontiac and Morgan and, thus, did not open the door for the Scotts’ counsel to refer repeatedly to Morgan’s penury.42 So we conclude that the Scotts’ counsel’s statements here were improper commentary upon Morgan’s purported financial status.

The question then becomes whether those improper statements were prejudicial or were harmless errors under CR 61.01. Indeed, our predecessor court even explicitly noted that reference to a party’s financial status by counsel is “not always prejudicial....”43 Our analysis of this issue is complicated by the fact that a timely objection was made only to one of the statements at issue.

We note that Morgan does not contest that a witness for Moore Pontiac had already referred to Morgan’s insurance status, without objection from Morgan. During the bench conference regarding the objection to the Scotts’ counsel’s reference to Morgan’s purported lack of wealth, the trial court specifically and correctly based *640its denial of relief, at least in part, on the fact that this insurance-related testimony already had been presented to the jury. We conclude that the earlier improper insinuation into the trial of insurance should have lessened the harmful effects of the Scotts’ counsel’s improper reference to Morgan’s financial status.

Most important, however, is the lack of demonstrable prejudice to Morgan stemming from the comments at issue. All that Morgan’s counsel essentially relies upon to establish prejudice is the fact that the jury’s verdict was large but not unanimous. First, it would be sheer speculation to find that jurors were coerced into returning a verdict against Morgan because of his purported lack of deep pockets. Next, Morgan’s argument to the contrary notwithstanding, it defies logic to presume that a jury inexplicably increased its verdict against Morgan (or increased the percentage of fault it ultimately assigned to Morgan) because counsel for the Scotts improperly referred to Morgan’s ostensible lack of wealth. Prejudice in this area would be far more apparent if, as would be more typical, counsel had contended that Morgan was blessed with an abundance of financial resources.

On balance, we conclude that the improper comments did not adversely prejudice Morgan’s substantial rights. So we conclude that the comments were harmless errors.

4. The Trial Court Did Not Err By Refusing to Give an Instruction Regarding Candria’s Alleged Failure to Mitigate Her Damages.

Morgan contends that the trial court committed reversible error by failing to instruct the jury regarding Candria Scott’s purported failure to mitigate her damages by failing to follow all of her physician’s treatment advice. We disagree.

Under Kentucky law, a party is required to mitigate his or her damages.44 So if a party introduces evidence that another party has failed properly to mitigate his or her damages, the jury should be given a failure-to-mitigate-damages instruction.45 A trial court’s failure properly to instruct a jury is presumptively prejudicial.46 So the question becomes whether there was sufficient specific evidence introduced to support a mitigation of damages instruction. Like the Court of Appeals, we find that there was not.

Under Kentucky law, a tortfeasor “takes the claimant as he finds him and is entitled to neither credit nor setoff against the amount of the claimant’s damages because of preexisting physical conditions which make the claimant more susceptible *641to injury, or to greater injury, than would have been the case with better health.”47 Candria was obese and a smoker at the time of the accident. Morgan contends that Candria’s failure to lose weight and to stop smoking entitled him to an instruction regarding Candria’s alleged failure to mitigate her damages.

Morgan would only have been entitled to a failure to mitigate instruction relating to Candria’s failure to lose weight and stop smoking after the accident if he had offered specific evidence showing that her continued smoking and obesity had caused a worsening of her condition attributable to her failure to follow reasonable medical advice. But Morgan did not adduce the requisite specific testimony. In fact, Dr. Akers specifically testified that Candria’s weight did not cause her femur to fail to heal. Also, Dr. Hegg only testified generally that the use of tobacco negatively affects healing of fractures and that Candria had been advised to stop using tobacco; but he did not know whether Candria had stopped using tobacco and was not specifically asked (and, thus, did not specifically testify) whether Candria’s tobacco use specifically retarded the healing of her fractured femur. Such general testimony is insufficient to mandate a jury instruction regarding a plaintiffs failure to mitigate damages.48 As the Court of Appeals aptly noted, “[w]hile there was some testimony that excess weight and smoking may contribute to the failure of bone fractures to properly heal, nothing in the expert testimony directly connects any complications in the healing process to these factors.... ”

Because there was no evidence that Candria’s failure to lose weight and stop smoking caused her femur to fail to heal, Morgan is not entitled to a mitigation of damages instruction related to Candria’s obesity and smoking.49

Morgan further contends that he was entitled to an instruction relating to failure to mitigate damages because of Candria’s alleged failure properly to use a bone stimulator prescribed by a physician to help heal her fractured femur. Dr. Hegg testified that his partner, Dr. Tau, had prescribed an electrical stimulator but that a log showed that Candria had used the bone stimulator only half the prescribed time. But Dr. Hegg did not testify that Candria’s alleged failure to use the bone stimulator impeded the healing of her fractured femur.50 So we agree with the Court of Appeals that there is a “lack of *642direct testimony to support a mitigation instruction.”

5. We Cannot Say as a Matter of Law that the Verdict was Excessive.

Morgan contends that there was no evidence to support the jury’s approximately $4 million verdict (half of which was improperly apportioned to Moore Pontiac). Morgan concedes that the Scotts were entitled to some sort of recovery but argues the jury’s verdict was excessive because “there was no evidence of excessive speed, impairment, intoxication or other factorfs] involving Morgan’s operation of the vehicle that would have caused the jury to have awarded a verdict of this magnitude had Morgan been tried alone.” Morgan contends that the jury returned such a large verdict because of the Scotts’ counsel’s improper remarks at closing regarding the parties’ financial status. So Morgan contends that the trial court erred by denying his CR 59.01 motion for a new trial. We disagree.

Since “a proper ruling on a motion for new trial depends to a great extent upon factors which may not readily appear in an appellate record[,]” we may not disturb a trial court’s decision to deny a motion for a new trial unless that decision is “clearly erroneous.”51 As an appellate court, our task is to “review the record and decide whether, when viewed from a standpoint ‘most favorable’ to the prevailing party, there is evidence to support the verdict and judgment.”52

In the light most favorable to the Scotts, Candria suffered the immediate trauma of the accident, has a left femur that may never heal properly, has undergone multiple surgeries to attempt to heal her injuries, and may undergo more surgical procedures in the future. After the accident, Candida's mobility was limited; and she is more dependent upon her husband for help. Additionally, the jury awarded Candria less than the maximum amount she had sought for future medical services, past mental and physical suffering, and future mental and physical suffering. Furthermore, the jury awarded Candria nothing on her claim for permanent impairment of her power to earn money in the future. Finally, the jury awarded James less than he sought on his claim for loss of services and conjugal relations with Candria. Moreover, Morgan has not shown that Candria’s medical expenses were unreasonable or inflated. To the contrary, Morgan’s own brief provides that “[t]here was no dispute that Ms. Scott received serious orthopedic injuries that had required surgical intervention.” On balance, therefore, we, like the Court of Appeals, cannot say that the trial court’s refusal to set aside the verdict as excessive was clearly erroneous.

Morgan expresses understandable concern that the jury’s fact finding with respect to damages may have been influenced by the apparent availability of the deeper pockets of Moore Pontiac, and his own apparent lack of significant resources. We have maintained in Kentucky a longstanding doctrine that the jury’s finding on liability is independent of its finding on the amount of damages.53 KRS 411.182 *643maintains that doctrine by requiring that juries make their finding as to fault and damages in separate interrogatory instructions. It is presumed that the jury will follow the instructions issued to it by the trial court.54 As stated above, in Part D[3] of this opinion, it would be sheer speculation to presume that the jury’s assessment of damages was improperly influenced by the apparently disparate wealth of Morgan and Moore Pontiac.

6. The Trial Court Did Not Err in Granting a Directed Verdict as to Candria Scott’s Past Medical Expenses.

At the close of proof, the trial court granted a directed verdict of $274,339.28 on Candria Scott’s past medical expenses claim. Morgan contends the trial court erred by granting the directed verdict. We disagree.

“Generally, a trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ.”55 In the case at hand, however, Morgan has not presented evidence to show that Candria’s past medical expenses were improper, unreasonable, or not attributable to the injuries she sustained in her collision with Morgan. So there was no disputed issue of fact, nor any question on this issue, as to which reasonable minds could differ.

We agree with Morgan that the jury decides whether a plaintiffs past medical bills were reasonable and stemmed from the injuries underlying the cause of action.56 So a trial court should exercise great caution before granting a directed verdict on those issues. But, under the facts of this case, the trial court did not err by refusing to submit the matter of Candria’s past medical expenses to the jury.

The question regarding the propriety of medical bills does not become a matter for the jury’s resolution if there is nothing in the record tending to show a dispute about the amount of those bills or their relationship to the alleged injuries underlying the action. For example, in Jones, heavily relied upon by Morgan, the evidence showed that the plaintiff did not claim to be hurt and to seek medical attention for about two weeks after the accident.57 In fact, the plaintiff had called an attorney before she had even called a physician.58 And a physician testified that he found no damage attributable to the underlying trauma.59 So there was a question for the jury as to whether the plaintiffs medical expenses were reasonable and connected to the underlying accident.

Likewise, Carlson v. McElroy,60 the other case relied upon by Morgan for the proposition that a jury is not required to believe the plaintiff or her physician on the issue of her injuries, is similar to Jones and distinguishable from the ease at hand. *644In Carlson, there was evidence that the plaintiff had pre-existing medical problems and had been involved in other accidents.61 Thus, the jury was required to determine the reasonableness of plaintiffs medical expenses in light of the evidence about the underlying accident and, furthermore, to determine whether those medical expenses stemmed from the underlying accident.62 None of those factors is present in the case at hand. Finally, Morgan’s theory that the jury might have awarded a lesser amount to Candria for her past medical expenses because they awarded her less than the amount she sought for her future medical expenses is sheer speculation.

Since there was no issue upon which reasonable minds could differ regarding Candida's past medical expenses, the trial court did not err by granting a directed verdict on that issue.

7. The Trial Court Did Not Abuse its Discretion by Refusing to Lower the Interest Rate on the Judgment.

Interest on judgments is governed by KRS 360.040, which provides in relevant part that “[a] judgment shall bear twelve percent (12%) interest compounded annually from its date.... [S]uch judgment may bear less interest than twelve percent (12%) if the court rendering such judgment, after a hearing on that question, is satisfied that the rate of interest should be less than twelve percent (12%).” Morgan contends that the trial court erred by not reducing the interest rate below twelve percent. We disagree.

Morgan’s sole argument is that the interest rate should have been lowered because evidence of the current market rates demonstrated that a lower interest rate was appropriate. But the fact that a trial court could have chosen to impose a lower interest rate does not necessarily mean that its decision to impose a higher rate was an abuse of discretion.63 Moreover, the fact that a twelve percent interest rate in today’s economic climate may be well above the marketplace norm is a matter properly to be considered by the General Assembly because that body has the power and discretion to lower the de facto legal interest rate contained in KRS 360.040. In short, Morgan has pointed to nothing to cause us to conclude that the trial court’s decision to impose the current de facto rate set forth in KRS 360.040 was an abuse of discretion.

IV. CONCLUSION.

For reason’s set forth above, the decision of the Court of Appeals is affirmed. This matter is remanded to the trial court for proceedings consistent with this opinion.