Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices.

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


ROBERT B. PUGLIESE,           )
                              )    Supreme Court No. S-8393
               Appellant,     )
                              )    Superior Court No.
          v.                  )    4FA-96-686 CI
RALPH PERDUE,                 )    O P I N I O N
               Appellee.      )    [No. 5169 - September 3, 1999]

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                    Richard D. Savell, Judge.

          Appearances:  Michael A. MacDonald, Downes,
MacDonald & Levengood, P.C., Fairbanks, for Appellant.  Winston S.
Burbank, Call, Barrett & Burbank, and Constance Ringstad,
Fairbanks, for Appellee.

          Before: Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Carpeneti, Justice, not

          BRYNER, Justice.

          Ralph Perdue backed his pickup truck into Robert
Pugliese, a pedestrian.  When Pugliese sued for personal injuries,
Perdue admitted negligence but contested the amount of compensable
damages.  During closing arguments at trial, Perdue's counsel told
the jury that Pugliese "is entitled to some compensation here.  I
am not saying don't give him anything.  That just wouldn't be fair
and just." But the jury gave Pugliese nothing.  Pugliese appeals,
contending that the verdict was not just and fair and that the
court should therefore have granted a new trial.  We reverse and
remand, concluding that Alaska Civil Rule 59(a) required a new
trial because the evidence fails to support a complete denial of
          As Ralph Perdue backed his pickup truck out of a parking
spot at Fred Meyers in Fairbanks on April 4, 1994, his foot slipped
off the brake pedal and onto the accelerator, causing the truck to
hit Robert Pugliese, who was walking behind the truck.  
          The parties gave conflicting descriptions of the
collision.  Pugliese described it as a traumatic event:  Perdue's
truck suddenly "shot"back at about five to ten miles an hour.
Pugliese tried to jump out of the way, but the truck struck his
elbow, spun him around in the air, and knocked him down, bruising
his arm and hurting his back and leg.  Perdue approached Pugliese,
showed him his driver's license and asked if he was hurt; Pugliese
responded that he did not know and that he wanted to call the
troopers.  But Perdue got back into his truck and left. 
          Perdue characterized the accident as less serious:  When
his foot slipped off the brake and onto the accelerator pedal, his
truck moved backwards at only about one mile per hour.  Perdue
heard the truck bump something, looked back, and saw Pugliese,
standing.  When Perdue contacted him to see if he needed medical
help, Pugliese replied that he was "okay." After Perdue gave his
license number and business card to Pugliese, Pugliese said
something about calling the police; Perdue told him to go ahead. 
As Pugliese walked toward the store, Perdue saw no limp or any
other sign of injury.  Perdue then left the area, thinking that the
police would not investigate an accident that occurred on private
          Pugliese evidently reported the incident to Perdue's
insurer within the next two days.  Pugliese reported the incident
to Dr. George Vrablik during a May 26, 1994, appointment that they
had scheduled for the treatment of a pre-existing shoulder injury. 
According to Pugliese, when the pain in his back and leg persisted
following the collision, he decided to mention it Dr. Vrablik.
Pugliese told the doctor that since the collision he had felt
continuing pain in his leg and back.  After examining Pugliese and
ordering a number of different tests, Dr. Vrablik diagnosed him as
having a damaged L-5 nerve root.
          Pugliese, citing this injury, sued Perdue for damages
resulting from the collision, claiming that his injury was
permanent, would cause him ongoing pain, and would eventually cut
short his career as a petroleum refinery mechanic.  Before trial,
Perdue admitted negligence, liability, and lack of comparative
negligence.  This left damages as the sole issue to be tried.
          In his opening statement to the jury, Perdue's counsel
emphasized that Perdue would contest only the amount of damages
attributable to the injury: 
          We believe in conclusion that the evidence
will show that the problems that Mr. Pugliese received was a very
minor bump . . . , that the bulk of his back injuries that he
sustained were from a pre-existing condition, . . . and that as a
result of this particular accident, he has incurred very little in
terms of damages. 

          At trial, Dr. Vrablik testified concerning the cause and
extent of Pugliese's injury.   Dr. Vrablik confirmed that Pugliese
had first complained of his back injury on May 26, 1994, during an
appointment scheduled for ongoing treatment of his pre-existing
shoulder problem.  Upon examining Pugliese, Dr. Vrablik found
symptoms indicating "a back injury with radicular pain going down
the leg following a specific nerve pattern." In particular, the
doctor noted tenderness in the area of the sciatic notch,
restricted range of straight leg raising, and weakness of the great
toe extensor.  A subsequent EMG test corroborated Dr. Vrablik's
initial impression, disclosing irritability of the right L-5 nerve
root.  X-rays and MRI tests revealed no trauma or other evidence
pointing to a different source for the problem.  Based on these
tests, his examination, and his knowledge of Pugliese's history,
Dr. Vrablik diagnosed Pugliese as suffering from an L-5 root
irritation on the right side.  The doctor further concluded that it
was more likely than not that the damage was caused by the trauma
of Pugliese's accident.  
          Perdue offered no medical evidence in response to Dr.
Vrablik.  Through cross-examination, however, Perdue suggested that
Pugliese had exaggerated his problems and that his back injury
could be explained by pre-existing causes.  But Dr. Vrablik
testified that Pugliese's back problems were entirely unrelated to
his pre-existing shoulder injury.  While Dr. Vrablik acknowledged
that Pugliese had previously experienced a T-5 compression
fracture, that he suffered from spinal conditions known as
spondylolithesis and spondylosis, and that his spine also showed
signs of a degenerative process known as disc dessication -- any of
which might predispose him to back pain after an accident -- the
doctor emphasized that these problems, by themselves, would not
account for the back pain, since "[i]n general, people with this
condition don't just develop back pain.  There's usually some
precipitating event." In Pugliese's case, Dr. Vrablik believed
that this precipitating event was the accident.  Dr. Vrablik
further believed that Pugliese's condition had stabilized and was
unlikely to improve. 
          Pugliese testified about his injury, his course of
treatment with Dr. Vrablik, and the problems that his back was
causing with his work.  In connection with Pugliese's testimony
concerning his medical treatment, the parties stipulated that Dr.
Vrablik's billings amounted to $1,057.  The court accordingly
instructed the jury that "the parties stipulate and you may then
accept that Dr. Vrablik's bills [are] for $1,057." Pugliese also
acknowledged that, to date, his back injury had caused him to lose
no more than $540 in wages. 
          In his final argument to the jury, Perdue's counsel
challenged Pugliese's credibility, contending that "parts of [the
case] are contrived, embellished and just blown out of
perspective." Although he reminded the jury that Perdue did not
deny negligence, defense counsel emphasized that "[o]bviously, we
think that the injuries to Mr. Pugliese are minimal." And while
insisting that he did not "blame Mr. Pugliese for embellishing his
situation before you,"defense counsel nonetheless accused him of
"some overstatement."
          Defense counsel further argued that Pugliese "is
certainly, certainly not disabled"and "is [not] likely [to be]
disabled as a result of this injury." After characterizing
Pugliese's claim for a large award of future lost wages as
"outrageous,"Perdue's counsel again emphasized that Perdue did not
dispute Pugliese's entitlement to at least some compensatory
          He is entitled to some compensation.  I am not
saying don't give him anything.  That just wouldn't be fair and
just.  And you have promised me that you would be fair and just. 
Fair and just, not only to Mr. Pugliese, but fair and just to Mr.
Perdue and me.
          The jury nevertheless returned a verdict awarding
Pugliese nothing.  Before the court excused the jury, Pugliese
questioned the verdict, noting that the parties had stipulated to
Dr. Vrablik's medical bills of $1,057.  The court instructed
Pugliese to raise the objection later, by motion.  Pugliese
subsequently did move for a new trial, claiming that in his closing
statements Perdue had admitted causing at least some damages and
that, in light of this admission, the jury's verdict was
unreasonable and unjust.  The superior court denied this motion. 
Pugliese appeals.   

     A.   Perdue's Counsel Did Not Formally Admit Causation of

          Although Perdue conceded before trial that he was
negligent, Pugliese still had the burden of proving his damages. 
"There are two aspects to damages.  The first is causation, that
is, the evidence must prove that the loss was caused by the tort. 
The second is amount.  The party seeking damages must provide the
jury with a 'reasonable basis' for computing the award."[Fn. 1] 
Pugliese acknowledges this burden but argues that he met it because
Perdue's stipulation as to Dr. Vrablik's medical bills and his
counsel's statements in closing argument amounted to binding
admissions of causation that required the jury to award at least
some damages. Pugliese reasons that the jury must not have
"properly weigh[ed] the evidence or underst[oo]d the law or the
meaning and effect of [these] conclusively established facts."
          Whether Perdue made binding admissions is a question of
law that we review de novo, applying our independent judgment to
adopt the rule of law most persuasive in light of precedent,
reason, and policy. [Fn. 2] 

          Pugliese first contends that Perdue admitted causation by
stipulating to compensate him for Dr. Vrablik's medical bills.  But
the record does not support this contention.  During the trial,
both counsel stated that they had stipulated to the total amount of
Dr. Vrablik's billings, but neither said anything suggesting an
agreement that these bills were actually compensable.  In keeping
with the statements of counsel, the trial court informed the jury
that "the parties stipulate and you may then accept that Dr.
Vrablik's bills [were] for $1,057." During his closing argument to
the jury, Perdue's counsel said nothing that could reasonably be
construed to expand the original scope of the stipulation.
Accordingly, the record establishes that the stipulation dealt only
with the amount of the billings and simply did not address
compensability. [Fn. 3]
          Pugliese separately contends that various statements made
by Perdue's counsel during closing argument amounted to judicial
admissions as to causation of damages.  But a careful review of
counsel's argument belies Pugliese's claim.  
          In Hayes v. Xerox Corporation, [Fn. 4] we held that "[a]
judicial admission, to be binding, must be one of fact and not a
conclusion of law or an expression of opinion."[Fn. 5]  The
admission must consist of "clear, deliberate, and unequivocal
statements of fact."[Fn. 6]  By arguing that "we think"Pugliese's
damages were "minimal"and by accusing him of "embellishing"and of
engaging in "some overstatement,"defense counsel impliedly
conceded that Pugliese's claims were to some minimal extent valid
and deserved to be compensated.  Counsel later expressly conceded
the point by telling the jury that Pugliese was "entitled to some
compensation"and that it "just wouldn't be fair and just"to award
him nothing.  But these frank concessions do not qualify as binding
judicial admissions under the Hayes test: they are all framed as
counsel's personal opinions or as proposed legal conclusions.  They
are substantially similar to the statements we considered in Hayes.
[Fn. 7]  For this reason, we hold that counsel's statements were
not binding admissions because they were "not the clear, deliberate
and unequivocal statements of fact necessary for a judicial
admission."[Fn. 8]  
          Because the verdict did not conflict with any binding
admissions as to causation, it follows that the trial court did not
err in denying a new trial on that basis. [Fn. 9]
     B.   A New Trial Is Necessary because the Verdict Is against
the Weight of the Evidence.  

          Pugliese argues in the alternative that the superior
court should have granted a new trial because the "evidence
supporting the verdict was completely lacking or so slight and
unconvincing"that the verdict was plainly unreasonable and unjust. 
          Alaska Civil Rule 59(a) allows the court to grant a new
trial "if required in the interest of justice." The decision to
grant or deny a new trial is within the trial court's discretion.
[Fn. 10] We will affirm a trial court's decision to deny a new
trial if there is an evidentiary basis for the jury's decision.
[Fn. 11]  We will reverse a decision denying a new trial "if the
evidence supporting the verdict was so completely lacking or slight
and unconvincing as to make the verdict plainly unreasonable and
unjust."[Fn. 12]  In reviewing an order denying a new trial, we
must view the evidence in the light most favorable to the
non-moving party. [Fn. 13]
          Pugliese claims that the evidence fails to support the
verdict because Dr. Vrablik's testimony went unrebutted; Perdue
produced no contrary evidence as to the existence of a compensable
injury.  Perdue responds that the evidence supports the verdict
because the jury simply could have concluded that Pugliese's pre-
existing injuries caused his damages.  But Pugliese's argument is
          The undisputed facts establish that Perdue negligently
drove his pickup truck into Pugliese, a collision involving direct
bodily impact.  Within two days, Pugliese reported the incident to
Perdue's insurance adjustor.  When Pugliese later complained about
his back injury to Dr. Vrablik, the doctor's examination confirmed
the presence of physical symptoms consistent with Pugliese's
report.  Subsequent EMG testing confirmed the presence of
irritation at the L-5 nerve root.  And further objective tests --
X-rays and an MRI -- ruled out other potential causes. 
          Based on these findings, Dr. Vrablik diagnosed Pugliese
as suffering from irritation of the L-5 nerve root.  Because
Pugliese had shown no sign of the injury during prior visits and
the injury itself was consistent with the reported collision, the
doctor concluded that the collision was the most likely cause of
Pugliese's back problems.  While Dr. Vrablik readily acknowledged
that Pugliese suffered from pre-existing conditions that might
predispose him to experience the kind of back and leg pain that he
had reported, the doctor unequivocally testified that none of these
pre-existing conditions would ordinarily have caused Pugliese's
back and leg pain unless triggered by some kind of traumatic event. 
          Perdue nevertheless observes that Dr. Vrablik necessarily
relied on Pugliese's report in attributing his injury to the
collision; Perdue further observes that Pugliese's credibility was
challenged in numerous respects.  On this basis, Perdue reasons
that the jury might have rejected Dr. Vrablik's opinion as to
causation and might instead have concluded that Pugliese injured
himself at work, where he was regularly required to do heavy
          But this reasoning misinterprets Dr. Vrablik's testimony. 
While the doctor unquestionably relied heavily on Pugliese's report
in concluding that the collision had caused Pugliese's injury, his
testimony indicates that he relied on objective medical evidence --
his own physical examination (which included significant objective
observations) and the results of EMG testing -- to form his
underlying opinion that Pugliese had recently begun to experience
pain from irritation to his right L-5 nerve root.  Perdue did not
rebut, or even seriously challenge, the medical basis for this
underlying conclusion.  Neither did he refute or challenge Dr.
Vrablik's unequivocal testimony that Pugliese's L-5 irritation
required some form of precipitating trauma. 
          Pugliese thus made a compelling, essentially unrebutted
showing that when he visited Dr. Vrablik in May 1994, he had
recently experienced some form of traumatic injury to his back. 
And because Perdue offered no evidence at all tending to show that
Pugliese had experienced any recent trauma other than the April
1994 collision, a verdict finding that Pugliese's injuries resulted
from some other traumatic cause would have required sheer
          Indeed Perdue never requested the jury to reach such a
verdict.  To the contrary, by arguing that Pugliese's claims were
"embellished"and "overstated"and by expressly acknowledging that
Pugliese was "entitled to some compensation,"Perdue effectively
conceded the existence of a compensable, collision-related injury. 
Although we have held that this concession did not meet the legal
test for a binding admission of liability, it nonetheless reflects
defense counsel's perception of the case at the close of the trial. 
To this limited extent the concession can help us set realistic
limits on inferences that the jury could reasonably draw from the
evidence.  Perdue's concession thus reinforces the conclusion that
the evidence supporting an award of no damages at all "was so . . .
slight and unconvincing as to make the verdict plainly unreasonable
and unjust."[Fn. 14]
          Richey v. Oen [Fn. 15] also reinforces this conclusion. 
Oen's car bumped into the rear of a car driven by Richey, causing
almost no visible damage. [Fn. 16]  Richey sued Oen, claiming that
the accident had seriously injured her back, requiring surgery.
[Fn. 17]  The gist of Oen's defense was that Richey's injuries were
preexisting. [Fn. 18]  The trial court granted Richey's motion for
a directed verdict on Oen's negligence but sent the causation
question to the jury. [Fn. 19]  After the jury returned a verdict
finding that Richey suffered no injuries from the accident and
awarding no damages, Richey unsuccessfully moved for a new trial
and for a judgment n.o.v. [Fn. 20]  
          We affirmed the trial court's order denying a new trial,
[Fn. 21] concluding "that the evidence supporting the jury's
conclusion is [not] so slight or unconvincing as to render the
verdict either unfair or unreasonable."[Fn. 22]  But in reaching
this conclusion, we pointed to "a plethora of conflicting testimony
concerning the nature and extent of Richey's lower back injury."
[Fn. 23]  Specifically, we described a conflict concerning whether
Richey had immediately complained about back pain, testimony from
four experts acknowledging that Richey suffered from a degenerative
back problem caused by several prior accidents, evidence
establishing that Richey had been treated for lower back pain a
short time before the accident, Richey's apparently deliberate
denial of her extensive preexisting injuries, Richey's inability to
identify any damage or repair to her vehicle caused by the
accident, and a physician's testimony expressly concluding that the
accident had not caused any of Richey's injuries. [Fn. 24]  Yet
despite all of this evidence, we expressed the view that Richey's
right to recover at least some compensable damages presented a
close question. [Fn. 25] 
          In contrast to the extensive evidence pointing to a pre-
existing cause of injury in Richey, the evidence negating the
existence of compensable damages here is slight and speculative. 
First, Pugliese's collision involved direct bodily impact.  Second,
while Perdue denied any immediate complaint of injury, he tempered
this denial with an admission that Pugliese had "said something"
about going to call the police; undisputed evidence established
that Pugliese had reported the incident to Perdue's adjustor no
later than two days after it occurred.  Third, while the evidence
leaves ample room to doubt the scope and seriousness of Pugliese's
injuries, there is virtually no evidence refuting Dr. Vrablik's
conclusion that Pugliese had recently sustained a traumatic and
painful injury to his lower back.  No solid evidence supports
Perdue's conjecture that Pugliese sustained this injury at work,
rather than as a result of the collision.  Finally, as we have
already noted, Perdue repeatedly acknowledged the existence of at
least some accident-related injury.  
          Our review of the trial record convinces us that evidence
supporting a complete denial of damages is so slight and
unconvincing as to make the jury's verdict unreasonable and unjust. 
Because we conclude that the denial of a new trial was an abuse of
discretion, we REVERSE and REMAND for a new trial. 


Footnote 1:

          Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 154
(Alaska 1992). 

Footnote 2:

          See Langdon v. Champion, 745 P.2d 1371, 1372 n.2 (Alaska

Footnote 3:

     Based on two mentions by Perdue's counsel of Pugliese's claim
for $540 in past lost wages, Pugliese also argues that the parties
stipulated to Pugliese's entitlement to compensation for that
amount.  But the record does not disclose any stipulation as to the
$540 lost wage claim.  Perdue's counsel simply mentioned that
Pugliese claimed only $540 in past lost wages.  The statements
accurately described Pugliese's claim. 

Footnote 4:

     718 P.2d 929 (Alaska 1986).

Footnote 5:

          Id. at 931.

Footnote 6:

          Id. at 933.

Footnote 7:

          See id. at 932 (holding that defense counsel's estimate
that compensable damages were $69,000-$70,000 and concession that
"I think he's been significantly injured.  I think he has injury
now. I think it may need treatment.  We don't know for sure."were
not judicial admissions) (internal quotations omitted).

Footnote 8:

          Id. at 933.  See also Tunender v. Minnaert, 563 N.W.2d
849, 853 (S.D. 1997) ("An admission is limited to matters of fact
which would otherwise require evidentiary proof, and cannot be
based upon personal opinion or legal theory.") (internal quotations

Footnote 9:

     Our conclusion that Perdue made no binding judicial admissions
makes it unnecessary to consider Pugliese's subsidiary claim that
the trial court committed plain error by failing to instruct the
jury in conformity with the judicially admitted facts.

Footnote 10:

     See Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442 (Alaska

Footnote 11:

     See id.; Richey v. Oen, 824 P.2d 1371, 1375 (Alaska 1992);
Hayes, 718 P.2d at 933.

Footnote 12:

     Richey, 824 P.2d at 1375.

Footnote 13:

     See id.

Footnote 14:

     Id. (quoting Hayes, 718 P.2d at 933).

Footnote 15:

     824 P.2d 1371, 1375 (Alaska 1992). 

Footnote 16:

     See id. at 1372, 1373.

Footnote 17:

     See id. at 1372-73.

Footnote 18:

     See id. at 1373.

Footnote 19:

     See id.

Footnote 20:

     See id.

Footnote 21:

     See id. at 1376.

Footnote 22:


Footnote 23:

     Id. at 1375.

Footnote 24:

     See id. at 1375-76.

Footnote 25:

     See id. at 1375.