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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. Grant v. Stoyer (10/13/00) sp-5322

Grant v. Stoyer (10/13/00) sp-5322

     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.


D. GRANT,                     )    Supreme Court No. S-9016
             Appellants,      )    Superior Court No.
                              )    4FA-96-2621 CI
     v.                       )
                              )    O P I N I O N
PEGGY A. STOYER,              )
                              )    [No. 5322 - October 13, 2000]
             Appellee.        )

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                     Ralph Beistline, Judge.

          Appearances:  John W. Hendrickson, Anchorage, 
for Appellants.  Peggy A. Roston, Law Office of Peggy A. Roston,
Anchorage, for Appellee.  

          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  

          EASTAUGH, Justice.

          Catherine Grant sued Peggy Stoyer for causing an
automobile accident that injured Grant.  Stoyer admitted negligence
and Grant's case went to trial only on causation and damages. 
Although the uncontroverted trial evidence established that the
accident had caused Grant painful injuries requiring medical
treatment, the jury awarded her no damages.  The superior court
denied Grant's motion for a new trial.  Because the evidence that
Stoyer's negligence caused Grant to suffer painful injuries
requiring medical treatment was uncontroverted, we reverse and
remand for a new trial on Grant's claim of damages.
          On December 19, 1994, Catherine Grant was entering the
intersection of University Avenue and Geraghty Avenue in Fairbanks
when Peggy Stoyer drove her Jeep Eagle station wagon into the right
front side of Grant's ten-month old Plymouth Acclaim; the collision
severely damaged Grant's car.  The responding paramedics recorded
that Grant complained of a sore chest and pain in her shoulder,
lower back, and left knee.  They applied a backboard and cervical
collar and transported her to the emergency room by ambulance.  The
emergency room admitting nurse noted that Grant complained of pain
in her shoulder, knee, chest, and back.  The emergency room
physician diagnosed an acute cervical strain, a mild chest wall
contusion, and a left knee contusion.  Grant was given a soft neck
brace and released from the emergency room.
          Grant sought additional medical treatment soon after the
accident, visiting the Tanana Valley Clinic on December 28, 1994. 
Her physician recorded Grant's complaints of pain in her neck and
right shoulder, and noted that her chest had been bruised.  Grant
sought physical therapy on January 3, 1995, still complaining of
pain in her left knee, neck, and right shoulder because of the
accident.  Grant returned to the medical clinic on January 25; the
notes for that visit record her complaint of "[n]eck, right
shoulder, lower back and left knee pain, status post MVA."  Grant
continued to receive medical attention from her orthopedic
specialist, who prescribed anti-inflammatories and pain medication;
she received physical therapy through the summer of 1996.  She had
shoulder surgery in 1996 and again in 1998. 
          Grant and her husband, Douglas Grant, sued Stoyer,
alleging that Stoyer's negligence caused personal injuries to
Catherine Grant.  They claimed damages for medical expenses, loss
of wages, loss of consortium, loss of services, pharmacy and
therapy expenses, mileage expenses, and loss of enjoyment.
          The parties agreed not to try any claim for past medical
expenses because Grant's insurance company had a subrogated right
to recover those expenses.  Stoyer admitted her own negligence, and
the trial focused exclusively on causation and damages.
          At trial, the parties disputed the scope and extent of
the injury Grant claimed to have suffered because of the accident. 
Grant testified about the pain, suffering, and inconvenience she
had experienced.  Members of Grant's family testified about
limitations on her home activities, and how the family had to take
over many of her household duties.  Grant's husband testified about
her ongoing pain and the damage to the marital relationship. 
During cross-examination, Stoyer's counsel did not contest
testimony by Grant or her family about Grant's pain and suffering. 
          Perhaps because she had shoulder surgery in 1996 and
1998, the testimony of Grant's treating physicians at trial focused
on the injury to her shoulder; they testified that she had
developed secondary shoulder impingement sydrome in her shoulder as
a result of the accident.  They also testified about her other
recurring complaints of pain.  Stoyer's expert witnesses disputed
the extent of Grant's injuries.  They primarily opined that Grant
could not have suffered the kind of shoulder injury she claimed to
have suffered as a result of the accident.  But even Stoyer's
experts conceded at trial that the accident may have caused at
least some of Grant's injuries.
          The jury returned a special verdict finding that Stoyer's
negligence was not "a legal cause of the damages" to Grant or her
husband.  The special verdict form also contained blanks for the
amounts of damages the accident legally caused Grant for past wage
loss, "past non-economic loss" (including pain and suffering), and
"future non-economic loss" (including pain and suffering).  The
jury, having found no legal causation, was not permitted to
determine the amount of damages.  The superior court entered
judgment for Stoyer and denied the Grants' motion to vacate the
verdict and declined to order a new trial.  The Grants appeal.
     A.   Standard of Review
          The decision to grant or deny a new trial is within the
trial court's discretion. [Fn. 1]  We will only reverse a decision
to deny 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. 2]  In conducting
our review, we view the evidence in the light most favorable to the
nonmoving party. [Fn. 3]
     B.   The Injury

          The jury's special verdict found that Stoyer's negligence
was not "a legal cause of the damages."  We consequently review the
record to determine whether the evidence permitted the jury to find
that the collision was not the legal cause of any compensable loss
to Grant.
          The evidence is uncontroverted that this accident injured
Grant.  An ambulance took her in a backboard and cervical collar to
the emergency room, where she repeated her complaints of neck,
knee, shoulder, and chest pain.  The collision was sufficiently
violent to blow out a tire and crush the fender on her car and to
cause her airbag to deploy; Stoyer does not dispute trial testimony
and Grant's assertion on appeal that her car was totaled.  Grant's
daughter, riding in the right front seat, could not open her door
and had to exit through the driver's side.  At trial, Stoyer did
not claim that Grant had faked or exaggerated her injuries at the
hospital and did not dispute her truthfulness in reporting her
symptoms to the paramedics and doctors who examined her.  The
medical records of the paramedics, emergency room, Tanana Valley
Clinic, and Grant's initial treating physician, all memorialized
within six weeks of the accident, include consistent reports of
pain and injury attributable to the accident.
          One of Stoyer's expert witnesses, Dr. John Ballard,
testified that he thought that Grant had been injured in the
          I think for sure [Grant] had a whiplash
injury, which would have been a cervical sprain.  Probably had it
when she came forward and back, had a contusion where the -- where
the seatbelt came across her chest.  She also hit her knee against
the dashboard, which can cause some anterior knee pain, and in
worse situations where it -- where it doesn't get better, it can
damage the -- the cartilage underneath the knee cap.  And she also
probably had an exacerbation of her back pain, probably had a
muscular ligament that strained to her back.  

Stoyer introduced Dr. Ballard's report of his examination of Grant. 
Dr. Ballard there concluded that some of her shoulder pain was
definitely related to the accident: "I do believe that the
automobile accident initially caused shoulder pain, which radiated
from the neck over the top of the shoulder."  Likewise, Stoyer's
other expert witness, Professor Allan Tencer, acknowledged that at
least some of Grant's pain could be attributed to the accident. 
Both experts questioned the extent and nature of Grant's injury,
but neither disputed that the accident had injured her and that
such injuries would take months to resolve.
          Assuming, as Stoyer claims, that Grant had a preexisting
condition that contributed to her shoulder pain, [Fn. 4] no
reasonable juror could have concluded that the accident did not at
least aggravate that preexisting condition.  The instructions
plainly explained that the jury could consider a previous injury in
connection with damage calculations, but that an aggravation of a
previous condition still constituted an injury.
          In light of Grant's immediate and continuing reports of
painful injury (in the ambulance, at the emergency room, and to her
doctors and physical therapists) and her ongoing need for
treatment, the jury had no evidentiary basis for finding that the
accident had caused no compensable injury to Grant.  We recognize
that there were genuine disputes about the exact duration of
Grant's neck, chest, and knee pain.  But there was no genuine
dispute that the collision had caused her to suffer some pain, or
that those injuries might take some months to resolve.  And
assuming that the collision did not cause injury to Grant's
shoulder, the testimony of Stoyer's own experts nonetheless
requires a finding that the collision caused Grant to suffer knee,
chest, and neck pain.  Therefore, evidence that the accident did
not cause some injury to Grant was so completely lacking, slight,
and unconvincing as to make the verdict plainly unreasonable and
unjust. [Fn. 5]
     C.   Pain and Suffering Damages

          The question presented here is whether a fact finder may
decline to award any damages for pain and suffering when the
evidence is uncontradicted that the defendant's negligence caused
the plaintiff to suffer painful injuries requiring repeated medical
attention.  We spoke directly to this issue in Walker v. Alaska
Road Commission. [Fn. 6]  There, after a bench trial in an
automobile accident negligence case, the superior court awarded
economic damages for lost earnings and medical expenses, but
awarded no damages for pain and suffering. [Fn. 7]  Reviewing the
case on appeal, we noted that "[t]he record contains substantial
and uncontradicted evidence that appellant did experience pain,
suffering and inconvenience." [Fn. 8]  We then observed that "[t]he
clear weight of authority holds that a jury award which fails to
include a sum for these items of general damages is inadequate or
inconsistent when the evidence supporting them is beyond legitimate
controversy." [Fn. 9]  We then remanded with instructions that the
superior court award damages for Walker's pain, suffering, and
inconvenience. [Fn. 10]
          Stoyer downplays Walker and relies on our opinions in
Hayes v. Xerox Corp. [Fn. 11] and Hutchins v. Schwartz. [Fn. 12] 
But we conclude that those two cases are distinguishable.  In
Hayes, we upheld the denial of a new trial where the first trial
had "established that Mr. Hayes suffered a back and neck injury
from the [automobile] accident." [Fn. 13]  Hayes sought a variety
of damages, and the jury returned a lump sum general verdict for
$50,000. [Fn. 14]  Although Stoyer cites Hayes as permitting a jury
award of zero pain and suffering damages, the jury's general
verdict never clearly ruled out noneconomic damages; it merely
awarded a lump sum. [Fn. 15]  While we noted that the "jury could
believe that [the plaintiff] exaggerated the extent of his injuries
and pain and suffering," we never confronted the rule in Walker.
[Fn. 16]
          Stoyer's reliance on Hutchins v. Schwartz is similarly
unavailing.  There, the plaintiff suffered injuries in an
automobile accident, but we declined to reverse the superior
court's denial of a new trial because "the jury could have
concluded that Hutchins had not suffered any significant loss of
enjoyment of life or physical impairment." [Fn. 17]  We also
recognized that there was substantial evidence of malingering,
exaggeration, or fraud. [Fn. 18]  Nonetheless, the jury's verdict
included $500 for pain and suffering, establishing that the jury
did not altogether refuse to award any noneconomic damages.
          Hayes and Hutchins are also distinguishable because the
juries in those cases found that the defendants had caused the
plaintiffs to suffer at least some compensable harm.  Here, the
jury's special verdict found that the accident was not a legal
cause of any of the damages that Grant claimed.  
          Although we think that Hayes and Hutchins do not conflict
with Walker, it is desirable to clarify the rule that applies to
these cases.  Our longstanding rule in Walker stands affirmed: 
where negligence and causation of compensable physical injury are
conceded or proved, and where evidence of at least some pain and
suffering is substantial and uncontroverted, some damages
ordinarily must be awarded.
          Our decision to reaffirm the rule in Walker is consistent
with our longstanding belief that where injuries are proved,
appropriate damages should be awarded.  For example, in Pugliese v.
Perdue, [Fn. 19] we reversed the superior court's denial of a new
trial in an automobile accident case.  There, defendant Perdue had
conceded negligence before trial, and the case was tried on
causation and damages. [Fn. 20]  Although Perdue acknowledged at
trial that his negligence had caused at least some compensable
physical injury and the evidence on this point was uncontradicted,
the jury awarded no damages at all. [Fn. 21]  We ordered a new
trial because we concluded that the "evidence supporting a complete
denial of damages [was] so slight and unconvincing as to make the
jury's verdict unreasonable and unjust." [Fn. 22]  We noted that
"while the evidence leaves ample room to doubt the scope and
seriousness of Pugliese's injuries, there is virtually no evidence
refuting [the doctor's] conclusion that Pugliese recently sustained
a traumatic and painful injury to his lower back." [Fn. 23] Perdue
offered no evidence to rebut Pugliese's medical evidence that he
had been injured in the accident. [Fn. 24]  We refused to permit an
award for zero damages in the face of overwhelming evidence of some
injury. [Fn. 25]
          In contrast, in Richey v. Oen [Fn. 26] we affirmed the
superior court's decision to deny a new trial on damages.   We
reasoned that there was a legitimate fact dispute about whether the
automobile accident victim had suffered any injury or damages. [Fn.
27]  Only because the jury could have found no injury at all did we
permit the award of zero damages to stand. [Fn. 28]  That is not
the case here; indeed, Stoyer's own experts agreed that Stoyer had
injured Grant.  Moreover, Stoyer's trial brief conceded that the
accident caused substantial physical injuries to Grant.
          Our decisions in Pugliese and Richey support the
principle underlying Walker: a fact finder may not award zero
damages where it is "beyond legitimate controversy" that negligence
caused some compensable injury. [Fn. 29]  We affirm that principle
in the case at hand.  Because it is beyond dispute that Stoyer
negligently caused substantial physical injury to Grant, and
because uncontradicted evidence shows that Grant experienced at
least some pain and suffering, an award of some damages is
          Pennsylvania reached the same conclusion when facing
remarkably similar facts.  In Neison v. Hines, [Fn. 30] an
automobile accident case went to trial on pain and suffering
damages alone. [Fn. 31]  The jury awarded zero damages, despite an
admission of negligence and the evidence of a painful neck and
shoulder injury. [Fn. 32]   There, as here, the defense's medical
expert acknowledged that the plaintiff had been injured in the
accident. [Fn. 33]  The Pennsylvania Supreme Court upheld the trial
court's grant of a new trial, noting that "a jury cannot freely
ignore evidence of obvious injury." [Fn. 34]  Although the
Pennsylvania court only held that the trial court did not abuse its
discretion by ordering a new trial, whereas here we reverse the
trial court's denial of a new trial, we find the Pennsylvania
court's discussion of the underlying issue persuasive.
           The trial evidence establishes without doubt that Stoyer's
negligence caused a serious and violent accident that injured
Grant.  Although it was within the jury's discretion to determine
the nature and extent of Grant's pain and suffering, it could not
find that Stoyer's negligence caused no pain and suffering at all. 
Only a new trial can remedy this error.
     D.   The Other Damage Claims
          The special verdict form asked the jury to determine
whether Stoyer's negligence was "a legal cause of the damages" to
Grant and her husband.  The jury answered: "No."  Because we hold
that the jury had to find that the accident caused Grant to suffer
pain and suffering, we must remand for a new trial on all the
damages properly requested by the Grants.  With one possible
exception discussed in the next paragraph, there must be a new
trial as to each of her damages claims because we must assume that
the jury, which could not rationally have declined to award Grant
any damages for pain and suffering, did not rationally consider her
other damages claims, either.  Therefore, we need not review the
evidence to determine whether it would support a finding that
Stoyer's negligence was not a legal cause of any other damages
claimed by Grant. 
          The one possible exception is Grant's mileage claim. 
Grant argues that she was entitled to recover the expense of
driving from her Salcha home to Fairbanks for treatment.  She
asserts that the failure to award any mileage damages indicates
that the jury was swayed by passion and prejudice.  There was
apparently little dispute that she had incurred some driving
expense.  But this was an item of economic loss, and Jury
Instruction No. 19 described her claim for economic damages only in
terms of her wage loss claim.  Grant apparently did not request an
instruction describing any claim for mileage expenses. She does not
argue that Instruction No. 19 erroneously described her economic
damages claim exclusively in terms of wage loss.  On remand, the
court must determine whether she preserved a mileage claim at the
first trial.  If she did not, she may not seek a mileage award at
the second trial.  And, given the instructions, the jury's failure
to award mileage does not indicate passion or prejudice against
          We REVERSE the judgment and REMAND for a new trial on
Grant's claim of damages. 


Footnote 1:

     See Pugliese v. Perdue, 988 P.2d 577, 581 (Alaska 1999).

Footnote 2:


Footnote 3:

     See id.

Footnote 4:

     Stoyer argues that it is significant that Grant did not inform
one of her surgeons that she previously had breast reduction
surgery in part to alleviate shoulder or back pain; Stoyer claimed
that Grant's past condition was the cause of her pain.  Grant
admitted that she had the surgery partly because of pain she
suffered in the muscles along the side of the neck and towards the
shoulders.  But Grant maintained that her pre-surgery pain was in
a different location than her post-accident pain.

Footnote 5:

     See Pugliese, 988 P.2d at 581.

Footnote 6:

     388 P.2d 406 (Alaska 1964).

Footnote 7:

     See id. at 406-07.

Footnote 8:

     Id. at 407.

Footnote 9:


Footnote 10:

     See id. at 408.

Footnote 11:

     718 P.2d 929 (Alaska 1986).

Footnote 12:

     724 P.2d 1194 (Alaska 1986).

Footnote 13:

     Hayes, 718 P.2d at 933.

Footnote 14:

     See id. at 931.

Footnote 15:

     See id.

Footnote 16:

     Id. at 934.

Footnote 17:

     Hutchins, 724 P.2d at 1203.

Footnote 18:

     See id. at 1201-03.

Footnote 19:

     988 P.2d 577 (Alaska 1999).

Footnote 20:

     See id. at 577.

Footnote 21:

     See id. at 579-80.

Footnote 22:

     Id. at 583.

Footnote 23:


Footnote 24:

     See id. at 579, 581-82.

Footnote 25:

     See id. at 583.

Footnote 26:

     824 P.2d 1371 (Alaska 1992).

Footnote 27:

     See id. at 1375-76.

Footnote 28:

     See id. at 1376; see also Bullard v. B.P. Alaska, Inc., 650
P.2d 402, 405 n.4 (Alaska 1982) (noting "no compelling evidence
that Bullard had suffered any injury").

Footnote 29:

     Walker, 388 P.2d at 407.

Footnote 30:

     653 A.2d 634 (Pa. 1995).

Footnote 31:

     See id. at 636.

Footnote 32:

     See id.

Footnote 33:

     See id. at 639.

Footnote 34:

     Id.  The Illinois Supreme Court has announced a contrary rule,
holding in Snover v. McGraw, 667 N.E.2d 1310 (Ill. 1996), that "a
jury may award pain-related medical expenses and may also determine
that the evidence of pain and suffering was insufficient to support
a monetary award."  Id. at 1315.  But we agree with Justice
Harrison's dissent in that case: "Any pain severe enough to justify
medical care is severe enough to warrant compensation."  Id. at
1316 (Harrison, J., dissenting).