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July 9, 1997


The opinion of the court was delivered by: CONNER


 Conner, Senior D.J.

 Plaintiff David Tisdel ("Tisdel") brought this diversity action seeking damages for personal injuries allegedly suffered in 1994 when he slipped and fell on ice near a building owned by defendants Daniel Barber and George Paletta (the "Owners"). Plaintiff has also sued Westchester Industrial Sales, Inc., a tenant of the building at the time of the fall (the "Tenant"). On November 7, 1996 a jury rendered a verdict in the amount of $ 25,000 in favor of Tisdel against the Owners, although it found Tisdel responsible for 10% of his injuries. We entered judgment for $ 22,500 initially on November 13, and on November 20, Tisdel moved under FED.R.CIV.P. 59 to set aside the verdict and for a new trial on the issue of damages on the grounds that the damage award is internally inconsistent, against the weight of the evidence, and inadequate. On December 6 we entered an amended judgment to reflect the dismissal of the Tenant. On April 10, 1997 we granted the Owners permission to cross-move to set aside the liability portion, and on April 14 they filed their motion arguing that the Tenant properly should have been held liable as well.


 On January 11, 1994, 52 year-old, 345-pound David Tisdel, a truck driver for over 30 years, slipped and fell on ice while attempting to make a delivery to Westchester Industrial Sales following a severe winter storm. He testified that he fell on his left hip while walking through the back parking lot of the building towards the street with Joseph Long, owner and operator of Westchester Industrial Sales (the "Tenant"), and that Mr. Long helped him up. He stated "I said it hurt a lot, but I just kept going." (Tisdel Trans. at 90), and that over the next couple days he felt very sore, "like somebody had hit me with a baseball bat." When he returned home to Michigan after finishing his route, he and his wife tried heating pads and athletic ointments to ease the pain. Although he had been overweight since at least the 6th grade, he testified he had never previously had back problems. He saw his family doctor, Dr. London, for the first time in February. Dr. London prescribed ibuprofin three times a day, but Mr. Tisdel's back pain got worse and he was referred to an orthopedist, Dr. Kenneth Eaton. Dr. Eaton put him on a physical therapy program, and his pain improved until approximately October, when he started to have pain in his hip and numbness of his left foot. In approximately November, he was referred to the Western Michigan Pain Clinic and received two epidural shots, but he testified they did not ease the pain.

 Although the pain continually worsened, Mr. Tisdel continued to drive his truck until the first week of December, when he had surgery to remove a herniated portion of his L4-L5 disc that was pinching a nerve. The surgery cured the leg pain and numbness. Tisdel was restricted to his house for two months, and then began a physical therapy program. He returned to his job in May of 1995, but after a few months he began to have "severe back pain" (id. at 108), more on the right side and up his back. (Id. at 114). He received more epidural shots, but these did not help. He was restricted to no more than 6 hours a day of driving, and he worked the rest of the time at the shop, mostly sitting, but he began to have problems with this work because after a few hours of sitting or standing he "could barely walk." (Id. at 110.) At the end of October of 1995, he went into a rehabilitation program, and in late November he was recommended for treatment in Mary Free Bed's Pain Rehabilitation Program to begin in January of 1996. (See Pl. Exh. 4). As of trial, he remained unable to work due to his severe back pain.

 At trial, the Owners attempted to place responsibility for clearing the parking lot and walkways on the Tenant. The Tenant countered that the responsibility was the Owners'. Neither defendant attempted to discredit Mr. Tisdel's evidence of the severe back pain he has been suffering. However, both strongly suggested that his injuries were due to his own negligence and a preexisting spine condition. The defendants argued first that because Mr. Tisdel knew the icy condition of the roadways and sidewalks, his decision to leave his truck constituted assumption of the risk or, at minimum, contributory negligence. They also presented the testimony of Drs. Morrissey and Weintraub, who opined that Mr. Tisdel's back problems resulted not from his fall, but from spondylosis and/or spondylolysis, both degenerative back conditions. Dr. Dickoff, plaintiff's own expert, testified that "some features" of spondylosis "would have been there had you x-rayed Mr. Tisdel a few years before the fall, but you can't prove it was preexisting because you didn't." (Dickoff Trans. at 40.) Defendants emphasized that numerous of Mr. Tisdel's medical records from the period after the accident also mention spondylosis. Dr. Dickoff suggested that the condition could have been asymptomatic Mr. Tisdel's entire life, but that his obesity could make the pain worse. All parties stipulated that plaintiff's past medical expenses were $ 31,361.34. After a four-day trial, the jury returned a verdict totaling $ 25,000 in favor of Tisdel. It apportioned the fault between the Owners and the Tenant 100% to the Owners, but also found plaintiff 10% contributorily negligent. The damages were divided as follows: $ 15,800 for loss of earnings $ 700 for loss of employer 401K contributions $ 2,000 for loss of health benefits $ 6,500 for medical expenses NONE for pain and suffering


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