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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hogg v. Raven Contractors, Inc. (05/05/2006) sp-6009

Hogg v. Raven Contractors, Inc. (05/05/2006) sp-6009, 134 P3d 349

     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,


) Supreme Court No. S- 11874
Appellant, )
) Superior Court No.
v. ) 3KN-03-00361 CI
an Alaska Corporation, and KENAI )
PENINSULA BOROUGH, ) No. 6009 - May 5, 2006
Appellees. )

          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Harold M. Brown, Judge.

          Appearances:    A.  Lee  Petersen,   Petersen
          Professional  Corp., Willow,  for  Appellant.
          Patrick  J. McKay, Law Offices of Patrick  J.
          McKay, Anchorage, for Appellees.

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

          FABE, Justice.

          This appeal arises from the superior courts denial of a
motion  for  a  new  trial.  The verdict at issue  arose  from  a
negligence   action  that  Donald  Hogg  brought  against   Raven
Contractors  and Kenai Peninsula Borough after Hogg fell  into  a
trash  container  at the Kenai Transfer Facility.   Although  the
jury  found  that Raven, the operator of the facility,  had  been
negligent, it determined that Ravens negligence was not  a  legal
cause  of Hoggs injury.  Hoggs subsequent motion for a new  trial
was  denied, and he claims on appeal that the trial court did not
apply the correct standard when reviewing the jurys verdict.  But
the  trial courts decision was consistent with an application  of
the   correct   legal   standard.   Furthermore,   we   apply   a
significantly more deferential standard of review to  a  superior
courts denial of a new trial than the superior court applies to a
jury verdict, and the superior courts decision complies with  our
standard.   For  these  reasons, we affirm the  judgment  of  the
superior court.
     A.   Background
          The  Kenai Transfer Facility contains large metal docks
into  which  members of the public can unload trash.   The  inner
walls  of  each  dock form a chute, sloping downward  towards  an
opening,  under which sits a container to collect the trash.   On
the  outside  opening, where visitors unload trash, the  dock  is
blocked by a two-foot-high concrete barrier, with a thin ledge on
top.   There  is a horizontal metal pipe above the barrier,  with
both  ends bent at right angles and inserted into sockets on  the
ledge.  A photo of the dock taken September 19, 2002 shows a sign
in  plain view warning members of the public not to stand on  the
ledge, and Hogg concedes that such a sign had been posted at  the
time of his visit.
          On September 1, 2002, Hogg was unloading trash from his
pickup at one of the docks.  Hogg claims that he backed his truck
up to the ledge, got into the box of his pickup and unloaded [the
trash]  and then stepped onto the ledge and put his hand  on  the
bar.   He alleges that the bar swung away when he put his  weight
on  it because one end was not in the socket, causing him to lose
his  balance  and  fall into the trash chute.  Raven  and  Kenai,
however, assert that Hogg pulled his truck so far toward the dock
that when he stepped out of the bed of the truck, he was actually
stepping over the ledge and into the chute.  They also claim that
neither  Hogg  nor  the  single Raven  employee  to  witness  the
incident  saw  the  pipe  loose  before  the  incident.   Neither
appellee  disputes  that the fall rendered Hogg  unconscious  and
caused injuries that required hospitalization.1
     B.                            Evidence Presented at Trial
          The  only  witness  to  the accident  other  than  Hogg
himself  was  Matt Neal, a Raven employee who was standing  on  a
nearby  catwalk at the time of the accident. Neal gave an account
of the accident in a report written for his employer on September
          Mr.  Hogg  had  just  finished  emptying  his
          garbage at the site.  As he climbed from  the
          back  of  his truck, he stepped  on  the  bay
          ledge,  using  the  rail  for  support.   The
          problem  occur[r]ed because the  last  person
          disposing in that area had unhooked the rail;
          instead  of  rehooking  it[,]  however,  they
          swung  it  back  so that it appeared  closed.
          Consequently, Mr. Hogg fell into the trailer.
          I  was  on  the  catwalk  when  the  accident
          occur[r]ed.  When he hit the bottom he seemed
          unconscious,  so  I immediately  called  911.
          When I returned he had regained consciousness
          and was lucid and alert, but could not stand.
          Paramedics arrived minutes later and  removed
          him from the trailer doors.
Neal  testified at trial that he had not seen the pipe taken  out
of the socket that day, either by Hogg or by other members of the
public,  and  that he had assumed that it was loose when  writing
his accident report.  Although he did not recall specifically, he
claimed that he thought Hogg climbed into the bed of the truck by
stepp[ing] in on the bumper and into his truck.
          Hoggs account at trial differed slightly from Neals  in
that he claimed to have taken a more circuitous route out of  the
pickup truck bed:
          I  backed  up to the stall . .  .  .   Backed
          right  up against the facility with my bumper
          against  it.   I got out of my  pickup,  went
          under  the rail in the next bay, went  around
          the pillar, let my tailgate down, went in  my
          pickup,  emptied the trash.  Got out  of  the
          pickup,  walked over to where  the  pole  is,
          bent  down,  reached down, and with  my  left
          hand raised the tailgate.
          As  I  started to stand up, I reached up  and
          caught the rail with my left hand.  The  rail
          came  loose.  The only thing I remember after
          that point was [that] I heard a bang, and the
          next  thing the medics were taking me out  of
          the dumpster.
But  Hogg admitted that his recollection of how he got out of the
truck might be inaccurate, noting that the accident resulted in a
serious  head  injury.  On cross-examination, Hogg conceded  that
the  tailgate of his truck covered the entire ledge, and that  he
actually  stepped  beyond  the ledge underneath  the  pole  there
(which  seems to be a reference to the rail) and onto  the  slope
surface  where  he squatted to raise the tailgate  of  his  truck
before falling.
          The  court also took testimony about the design of  the
facility,  with  Hoggs expert arguing that it  should  have  been
designed  with  guardrails in front of the trash  docks,  and  an
engineer employed by Kenai claiming that a design with guardrails
would  have  been ineffective because different-sized  guardrails
would  be  required  for different sizes of trash  and  unloading
vehicles.   The  Kenai engineer, who was involved  .  .  .  as  a
project  manager throughout design and construction, pointed  out
that  the facility met the Uniform Building Code standards for  a
docking facility in effect at the time of construction, and  that
these  standards  did not require a guardrail at  all.   He  also
maintained  that  warning  signs were  installed  prior  to  [the
facilitys] opening and upon completion of construction.
     C.   Jury Instructions and Verdict
          Before  the  case  was submitted for deliberation,  the
court  instructed the jury that, in order to find that  Hogg  was
entitled  to  recover,  the jury had to determine  (1)  that  the
defendants were negligent; (2) that the defendants negligence was
a  legal  cause  of the plaintiffs harm; and (3)  that  Hogg  was
actually harmed.  The court defined negligence as the failure  to
use  .  . . that amount of care that a reasonably prudent  person
would  use  under similar circumstances.  It also instructed  the
jury about the meaning of legal cause:
          A  legal cause of harm is an act or a failure
          to  act  which  is  a substantial  factor  in
          bringing  about the harm.  An act or  failure
          to  act  is a substantial factor in  bringing
          about harm if it is more likely true than not
          true that:
               1.   the  act or failure to act  was  so
                    important  in  bringing  about  the
                    harm that a reasonable person would
                    regard  it  as a cause  and  attach
                    responsibility to it; and
               2.   the  harm  would not have  occurred
                    but for the act or failure to act.
          After  deliberating, the jury issued a special  verdict
finding  that  Raven had been negligent, but that its  negligence
had  not been a legal cause of Hoggs injury.  It found that Kenai
had not been negligent.
     D.   Hoggs Motion for a New Trial
          Hogg  subsequently moved for a new trial, claiming that
the  jurys  verdict was inconsistent with the courts instructions
on  negligence and causation.  His motion pointed  out  that  the
judge is free to weigh the evidence for himself . . . and may set
aside  a  verdict  even though there is substantial  evidence  to
support  it, and noted that [t]he judge is not required  to  view
the  evidence most favorably to the verdict winner.   The  motion
also  noted that the appellate court view[s] the evidence in  the
light  most  favorable to the non-moving party2 when reviewing  a
trial  courts  denial of a new trial.  In support  of  the  jurys
verdict,  Raven  argued, among other things,  that  the  evidence
presented  at trial could have permitted the jury to  find  Raven
negligent in ways that did not cause the accident.  For  example,
Raven  argued  that the jury could have found that  Raven  should
have  moved some of the warning signs to more obvious places  but
that  this would have made no difference since Mr. Hogg  did  not
pay  any  attention to the signs.  The trial court  denied  Hoggs
     A.   Standard of Review
          When  determining whether to grant a motion for  a  new
          a  trial  court may set aside a  verdict  and
          order  a new trial in the interest of justice
          if  the verdict is against the weight of  the
          evidence.   In deciding a motion  for  a  new
          trial  on this basis, the court must use  its
          discretion   and  independently   weigh   the
          evidence.  A court may set aside a verdict as
          being against the weight of the evidence even
          when there is substantial evidence to support
          it.   The decision is a matter for the  trial
          courts discretion.[3]
None  of  our cases requires the trial court to view the evidence
in the light most favorable to the non-moving party.
          We  apply a different standard when reviewing  a  trial
courts  decision  to  deny  a new trial  after  a  jury  verdict.
Although  the  question  [w]hether the trial  court  applied  the
correct  legal standard is a question of law that  we  review  de
novo,4  our  review  of  the  trial  courts  decision  itself  is
considerably  more deferential.  Because [t]he  question  .  .  .
whether  to  grant  or  refuse a new trial  rests  in  the  sound
discretion of the trial court . . . we view the evidence  in  the
light most favorable to the non-moving party.5  We will affirm  a
trial  courts  decision  to  deny a new  trial  if  there  is  an
evidentiary basis for the jurys decision,6 and 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. 7
     B.   The Trial Court Did Not Err in Denying the Motion for a
          New Trial.
          Hogg  argues  that the jurys findings  that  Raven  was
negligent but that Ravens negligence was not the legal  cause  of
Hoggs fall requires one of the following assumptions:   (1)  that
the  loose metal pipe was not a cause of Hoggs fall; (2) that the
fall  was  not a legal cause of the damages suffered by Hogg;  or
(3)  that Ravens negligence was not the legal cause of the  metal
pipes  being  loose.  But at oral argument of this appeal,  Hoggs
counsel  pointed  out that he had argued a number  of  negligence
theories  to  the  jury,  including  inadequate  warning  signage
regarding  the pipe and the danger of stepping on the ledge,  the
alleged  failure of the nearby Raven employee to  give  a  verbal
warning  to  Hogg,  and the alleged failure of  the  employee  to
secure the pipe.
          The  jurys verdict, then, need not have been  based  on
one  of  the three assumptions listed by Hogg.  Rather, the  jury
could  have  found  Raven to be negligent on  one  of  the  other
theories  argued  by  Hogg  and excluded  this  negligence  as  a
potential cause of the accident.  For example, some signs warning
the  public  not  to  climb onto the ledge  were  posted  at  the
facility before Hoggs fall.  The jury could have determined  that
although  the  signs  should have been  bolder  or  placed  in  a
different  location,  Hogg saw them and stepped  onto  the  ledge
anyway,  as  he  had done before.  Further, one  of  Ravens  main
theories as to how the accident happened was that the pipe was in
both  of  its sockets prior to the accident but was dislodged  by
Hoggs  action when he ducked under it or when he grabbed  for  it
          while he was crouching on the downward sloping surface beyond the
pipe.   Thus,  the  first assumption on which Hoggs  argument  is
based   that  the  pipe was loose prior to Hoggs arrival  on  the
scene  may not have been accepted by the jury.
          Hogg  argues  that  this courts decision  in  Grant  v.
Stoyer  requires  a  reversal of the trial courts  order  because
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  must
ordinarily  be  awarded.8  In Grant, we reversed a  trial  courts
decision  to  deny a new trial where a jury determined  that  the
defendant  in  a car accident had been negligent,  but  that  the
accident  was  not  the legal cause of the defendants  injuries.9
But in Grant, the defendant conceded negligence, and the evidence
clearly  established  that the defendants negligent  conduct  had
caused  the  accident.10  We reversed the trial  courts  decision
[b]ecause it [was] beyond dispute that Stoyer negligently  caused
substantial physical injury to Grant.11  In the present case, the
evidence convinced the jury that Raven was negligent, and clearly
establishes that Hogg suffered serious physical injuries, but  it
does  not  necessarily establish that Ravens negligence  was  the
cause of Hoggs injuries.  Thus, the trial courts decision to deny
a  new  trial  is consistent with an independent  review  of  the
evidence and does not violate the rule announced by this court in
          Our  own  standard  of  review  is  significantly  more
deferential  than the standard that the trial court should  apply
to  a  motion  for a new trial.  In this case, we do not  believe
that  the evidence supporting the verdict was completely  lacking
or  slight and unconvincing.12  Moreover, the decision whether to
grant  a new trial was within the discretion of the trial  court.
Unlike  this court, for which testimony is necessarily but  words
on  a  page,  the  trial court had the opportunity  to  hear  the
witnesses  testify in person.  Similarly, the trial  court  could
weigh   the   evidence   in  the  context  of   its   credibility
determinations  about  witnesses.  Our  deferential  standard  of
review13 takes this into account.  For this reason, we hold  that
there was an evidentiary basis for the jurys decision.14
          For the reasons set forth above, we AFFIRM the judgment
of the trial court.
     1     But  Raven  and  Kenai do dispute the  extent  of  the
injuries attributable to the accident, alleging that some of  the
ailments  for  which  Hogg received treatment  were  pre-existing

     2    Hogg quoted our opinion in Pugliese v. Perdue, 988 P.2d
577, 581 (Alaska 1999).

     3    Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1176 (Alaska
2002) (footnotes omitted) (quoting 11 Charles Alan Wright et al.,
Federal  Practice and Procedure  2806, at 65 (2d ed. 1995));  see
also  Pugliese, 988 P.2d at 581 (The decision to grant or deny  a
new trial is within the trial courts discretion.).

     4    Kava, 48 P.3d at 1173.

     5    Id; see also Richey v. Oen, 824 P.2d 1371, 1375 (Alaska
1992)  (noting that we are required to view the evidence  in  the
light most favorable to the non-moving party).

     6    Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).

     7     Grant  v.  Stoyer,  10  P.3d 594,  596  (Alaska  2000)
(quoting Pugliese, 988 P.2d at 581).

     8     10  P.3d  at 598; see also Pugliese, 988 P.2d  at  583
(remanding  for  a  new trial where the jury  declined  to  award
damages  to a plaintiff who had been negligently hit by a  pickup

     9    10 P.3d at 596-99.

     10    Id. at 595-96.

     11     Id.  at  599; see also id. (noting that  Stoyers  own
experts agreed that Stoyer had injured Grant and that [t]he trial
evidence establishes without doubt that Stoyers negligence caused
a serious and violent accident that injured Grant); Pugliese, 988
P.2d  at  581 (remanding for a new trial because [t]he undisputed
facts  establish that Perdue negligently drove his  pickup  truck
into Pugliese, a collision involving direct bodily impact).

     12     Grant, 10 P.3d at 596 (quoting Pugliese, 988 P.2d  at

     13    See Kava, 48 P.3d at 1173.

     14    Glamann, 29 P.3d at 259.

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