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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gillum v L&J Enterprises, Inc. (08/24/2001) sp-5455

Gillum v L&J Enterprises, Inc. (08/24/2001) sp-5455

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


RONALD G. GILLUM,             )
                              )    Supreme Court No. S-9669
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-95-9775 CI
                              )
L & J ENTERPRISES, INC.,      )    O P I N I O N
d/b/a PACECO WAREHOUSE,       )
                              )    [No. 5455 - August 24, 2001]
             Appellee.        )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        Sen K. Tan, Judge.


          Appearances:  Brett von Gemmingen, Anchorage,
for Appellant.  Patrick J. McKay, Law Offices of Patrick J. McKay,
Anchorage, for Appellee. 


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


          EASTAUGH, Justice.


I.   INTRODUCTION
          Ronald Gillum suffered two industrial accidents.  In the
first, the descending door at a warehouse loading dock struck his
head.  Fifteen days later he fell from his semi-trailer.  After
Gillum sued the warehouse operator, a special master found the
operator's negligence caused Gillum injury, found modest damages,
and attributed forty percent of the responsibility to Gillum's
negligence.  The superior court accepted the findings and
recommendations.  We conclude that the special master did not
clearly err (1) in finding that Gillum's warehouse head injury did
not cause him to fall from his trailer and that Gillum was
comparatively negligent; and (2) in discounting the testimony of
Gillum's expert, having found factual inconsistencies between the
expert's assumptions and Gillum's testimony.  We therefore affirm.
II.  FACTS AND PROCEEDINGS
          Ronald Gillum was a truck driver who delivered a load of
groceries to Paceco Warehouse in Seward on November 24, 1993. 
While Gillum was helping Paceco employees unload his truck, the
loading dock door dropped and struck Gillum's head.  The Paceco
employees had propped the door open with a two-by-four that was
dislodged during the unloading process.  Gillum did not immediately
recognize the severity of his injury, and continued to help unload
the pallets of groceries.  After unloading was complete, Gillum
drove his semi-truck back to Anchorage, and told his supervisor of
the accident.  Later that night, Gillum drove to Soldotna,
experiencing extreme vision and balance problems on the drive.  A
friend took Gillum to the Soldotna emergency room, where Gillum
presented with complaints of headache and neck pain.  At the
emergency room, Gillum denied that he had been knocked out or
knocked down when the door struck his head.  He reported feeling
unsteady when walking and noted that his left eye had been
twitching since the head strike.  The emergency room doctor
instructed Gillum not to drive or work for forty-eight hours, and
diagnosed mild neck strain and closed-head trauma with a mild
concussion.  
          Gillum spent an active weekend in Soldotna dating,
playing pool, and dancing; he returned to Anchorage one to three
days later.  He visited Dr. Clarence Little on November 29 for
follow-up care and to obtain a release to return to work.  Dr.
Little found a small tender swollen area on the top of the scalp
just anterior to the occipital region.  Gillum complained of
lightheadedness, diarrhea, and feeling off-balance.  At Gillum's
request, Dr. Little faxed a work release to Gillum's employer on
December 2. 
          Gillum's second accident occurred on December 9 while he
was in Glennallen.  He fell to the ground either after he slipped
from his semi-trailer, or after he blacked out while climbing up
and over the trailer.  Gillum made his way to the Crossroads
Medical Center in Glennallen, where he was diagnosed with a
concussion and discharged with instructions to be seen at the
emergency room in Anchorage.  At the Anchorage emergency room
Gillum received medication and instructions to rest and follow up
with Dr. Little. 
          Gillum saw Dr. Little on December 13 for follow-up
treatment.  Dr. Little recommended neurological evaluation.  Gillum
has since seen many physicians and neuropsychologists for his
resulting disabilities. 
          Gillum sued Paceco, operator of the warehouse where the
descending loading dock door struck his head.  By agreement the
parties tried the matter before a special master who found that
this accident did not cause the majority of Gillum's current
medical problems.  Gillum objected to the special master's
findings.  The superior court approved the special master's
findings and recommendations over Gillum's objections.  This appeal
follows.  
III. DISCUSSION
     A.   Standard of Review
          The findings of a trier of fact will not be set aside
unless they are clearly erroneous. [Fn. 1]  A finding is clearly
erroneous only "when, although there may be evidence to support it,
we are left with the definite and firm conviction on the entire
record that a mistake has been committed." [Fn. 2]  Alaska Civil
Rule 53(d)(2) instructs the superior court to accept a special
master's factual findings unless they are clearly erroneous. [Fn.
3]  Any legal determinations made during this process are reviewed
de novo. [Fn. 4]
     B.   The Record Supports the Special Master's Findings that
the Paceco Garage Door Accident Did Not Cause Gillum's Long-Term
Disability. 

          Gillum argues that his Seward head injury did not resolve
in a few days, and that it caused his later fall in Glennallen. 
Paceco argues that the initial head strike caused a light
concussion, but that Gillum had completely recovered from the
accident within a week.  It claims that Gillum's fall from his
semi-trailer was caused by slipping and was not related to the
warehouse accident.  The special master found that neither the
"Paceco incident nor its sequelae played any part in bringing about
the injuries Plaintiff sustained on December 9."  We conclude that
the special master's findings on causation are well supported by
the record.  
          The special master assumed that the Glennallen fall
caused Gillum's long-term disability, and that the Seward head
strike could only have been implicated in Gillum's disabilities if
the head strike had caused the Glennallen fall.  The special master
prefaced his findings by saying "[s]ince the point of contention in
this exercise flows from whether the Glennallen fall causally
resulted from the Seward head strike, I intend to limit my findings
to that issue and closely related topics." 
          Evidence in the record supports Gillum's argument that a
blackout or dizzy spell caused the Glennallen fall.  But there is
also evidence in the record to support the special master's finding
that it did not.  While several of Gillum's health care providers
opined that a syncopal episode [Fn. 5] directly prior to the
Glennallen fall would have been consistent with the head strike
injury, none of them testified that syncope caused Gillum's
Glennallen fall.   
          Dr. Paul Craig, a neuropsychologist, testified that he
could not express an opinion as to the cause of Gillum's Glennallen
fall.  Dr. Glenn Ferris testified that it was not necessary for him
to determine which of the two accidents may have played a causative
factor in Gillum's disabilities.  Dr. John Peacock noted that while
Gillum's self-reported medical history attributed the Glennallen
fall to a syncopal episode, he was not attempting to discern
whether one accident caused the other.  Ann Lisa Ver Hoef, Gillum's
speech language pathologist, testified that it was not important
for her to determine the cause of Gillum's injuries.  Carol
Jacobsen, Gillum's vocational counselor, testified that while she
sent letters of introduction to many of Gillum's physicians, she
based the facts noted in those letters on information collected
from Gillum and from his medical records.  Dr. Little testified
that when he treated Gillum shortly after the Glennallen fall,
Gillum reported not knowing if he had fainted, had a seizure, or
just slipped and fell.  Dr. Little noted that the cause of Gillum's
fall was a "question of his recall."  Other health care
professionals simply relied on Gillum's medical history or self-
reporting that syncope preceded the Glennallen fall. 
          Gillum argues that Dr. Tom Lang "stated that the initial
door strike to Mr. Gillum's head was responsible for his second
syncopal injury in Glennallen," and that syncope was likely caused
by the Paceco head strike.  Dr. Lang reports in his notes, under
the heading "Impression," that
          [i]t seems more likely than not that the
initial door strike injury is responsible for his second syncopal
injury in Glennallen.  The timing is right for the delayed onset in
closed head injury.  It seems unlikely that Mr. Gillum would have
suffered syncope in Glennallen had it not been for the initial
headstrike which was significantly traumatic. 
Significantly, Dr. Lang did not diagnose Gillum as having suffered
syncope in Glennallen.  Instead, he appears to have assumed, in
reliance on Gillum's self-reported medical history, that syncope
had occurred; having made that assumption, he was simply expressing
an opinion about the cause of syncope.  But the special master
found that syncope had not occurred.  We think he did not clearly
err in so finding.
          Gillum was alone when he fell from his semi-trailer.  He
was the only witness who testified based on first-hand information
how the fall occurred.  The special master found that Gillum's
credibility was critical, and that discrepancies in his testimony
negatively affected his credibility.  The record supports these
credibility findings.  Gillum's early reports of the events leading
to the Glennallen fall state that he slipped.  At the emergency
room, soon after the fall, Gillum denied "any loss of
consciousness[,] blurred vison[,] or any neurodeficit."  Although
later medical reports would have supported a finding that a
blackout caused the Glennallen fall, the special master did not
clearly err by finding the initial reports of the incident to be
more credible.  The record does not suggest that a mistake has been
made about whether the warehouse accident caused symptoms that
contributed to the Glennallen fall.   
          Gillum argues that the special master erred by elevating
an intervening force to the level of a superseding cause.  Gillum
argues that whether the Glennallen fall was a superseding or
intervening cause is a question of law.  He concludes that the
Glennallen fall was an intervening cause, and that the special
master erred by treating it as a superseding cause. 
          Gillum's working theory is that his Paceco warehouse head
strike injury was severe enough to cause syncope fifteen days
later, causing him to fall and suffer another concussion.  This is
also the theory he raised in his objections to the master's
findings. [Fn. 6] 
          Neither the superior court nor the special master relied
on an intervening, superseding cause theory.  The special master
simply rejected Gillum's trial theory that the warehouse accident
was so severe that it caused the Glennallen accident and additional
injuries.  The special master did not find that the Glennallen fall
was an intervening or superseding cause of the injuries of which
Gillum complained.  
          Gillum's argument that the special master elevated an
intervening force to the level of a superseding cause originates in
his argument that the evidence established that he suffered a
syncopal event that caused him to fall from the trailer in
Glennallen.  Gillum claims that his warehouse injury caused him to
suffer the syncopal event, and that the injuries he received when
he fell from the trailer are therefore also attributable to Paceco. 
The special master found that the Glennallen fall was caused by
Gillum slipping, and not by a syncopal episode.  The record
supports this finding.  Because we conclude that it was not error
to find that the Paceco injury did not cause the fall from the
trailer, Gillum's sole theory on which he asserts error is
factually unfounded.  We therefore affirm the superior court's
approval of the special master's causation findings.
     C.   The Special Master Did Not Err in Finding that Gillum Was
Forty-Percent Comparatively Negligent.  

          The special master attributed sixty percent of the
responsibility to Paceco's negligence and forty percent to Gillum's
negligence.  He explained that this allocation reflected his
finding that "although Plaintiff was negligent in his failure to
keep an adequate watch for his own safety the greater negligence
lay with Paceco for . . . continuing to use a jury-rig expedient no
matter how well it customarily performed."  Gillum argues that this
finding of comparative negligence imposes an undue "duty to
anticipate that the landowner will act negligently, to search for
this negligence, and to discover[] the negligence prior to injury." 
Paceco argues that the special master's finding is supported by the
testimony that established that Gillum continued to push the pallet
even though he knew that the two-by-four had been knocked loose and
that the door had fallen part-way. 
          Failure to discover a hazard can constitute comparative
negligence. [Fn. 7]  The special master's finding of comparative
negligence is not clearly erroneous.  The evidence permits a
reasonable person to find that Gillum was alerted to the hazard --
the garage door had fallen partway and rested on top of the pallet
of groceries.  It also permits a finding that Gillum was warned not
to push on the pallet, but continued to do so despite the warning. 
Gillum argues that the comparative negligence finding imposes an
"unreasonable duty of agility."  He does not, however, offer
evidence that establishes that the finding is clearly erroneous.
          We therefore affirm the superior court's approval of the
special master's finding of comparative negligence.
     D.   The Special Master Did Not Err in Disregarding the
Testimony of Gillum's Expert Witness. 

          Gillum's expert witness in biomechanics was Dr. Mariusz
Ziejewski.  He testified about the severity of the injury resulting
from the head strike.  The special master noted that "had I known
Mr. Gillum was to describe the door/head strike in the manner he
did (nearly vertically, resting on the head, and no forward
rotation of the skull) I would not have allowed the Doctor's
testimony." 
          Gillum contends that the special master erred in
concluding that Dr. Ziejewski based his conclusions on an incorrect
location for the head strike, and therefore erred in disregarding
Dr. Ziejewski's testimony.  He asserts that the record demonstrates
that the door struck him on the head "just anterior (forward) of
the occipital region" and that Dr. Ziejewski based his conclusions
"upon a door strike occurring at exactly the same spot."  Paceco
responds that the special master correctly disregarded
Dr. Ziejewski's testimony because he assumed that the warehouse
event occurred in a way that was not "substantially similar" to the
way the event actually took place. 
          Dr. Ziejewski's conclusions regarding the severity of the
injury depend on an assumption that Gillum's head rotated forward
in a certain manner.  Dr. Ziejewski testified that the severity of
the injury would differ, based on the angle at which the garage
door struck Gillum's head.  Gillum testified that the garage door
landed on top of his head while he was standing straight up, and
that he simply shoved the garage door off the top of his head. 
When Gillum was asked, "[t]he door didn't push your head forward,
it just hit you straight down, right?" he answered, "[a]s best I
recall."  Given Gillum's testimony about how the door struck his
head, the special master did not clearly err in finding that the
expert's assumptions about the mechanics of the accident were at
odds with the facts as Gillum described them.  The special master
consequently did not err in choosing not to rely on the expert's
testimony.  We therefore affirm the superior court's approval of
the special master's findings and recommendations.
IV.  CONCLUSION
          As to all issues, we AFFIRM the superior court's approval
of the findings and recommendations of the special master.



                            FOOTNOTES


Footnote 1:

     See Kaatz v. State, 540 P.2d 1037, 1041 (Alaska 1975).


Footnote 2:

     Id. (citation omitted).


Footnote 3:

     See Neilson v. Neilson, 914 P.2d 1268, 1272 n.3 (Alaska 1996). 


Footnote 4:

     See Lewis v. Lewis, 785 P.2d 550, 552 (Alaska 1990).


Footnote 5:

     Dr. John Peacock testified that "[a] syncopal episode is
sudden loss of consciousness." 


Footnote 6:

     Gillum does not argue here and did not argue in his objections
to the master's findings and recommendations that his extensive
injuries are exclusively attributable to the Paceco warehouse
accident.  Gillum also has not argued that the Glennallen fall,
even if not caused by a blackout or dizziness resulting from the
warehouse accident, was a foreseeable event and that the injuries
he suffered when he fell from the trailer must therefore also be
attributed to Paceco. 


Footnote 7:

     See McKean v. Hammond, 445 P.2d 679, 682 (Alaska 1968)
(holding that question of whether invitee "knew or should have
known" of the dangerous condition was a question of fact).