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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept of Transportation & Public Facilities v. Miller (10/06/2006) sp-6060
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| DEPARTMENT OF | ) Supreme Court No. S- 11946 |
| TRANSPORTATION AND | ) |
| PUBLIC FACILITIES, | ) Superior Court No. |
| ) 4BE-01-00445 CI | |
| Appellant, | ) |
| ) O P I N I O N | |
| v. | ) |
| ) No. 6060 - October 6, 2006 | |
| LANCE MILLER and VELDA | ) |
| MILLER, for themselves and on | ) |
| behalf of MIRANDA MILLER and | ) |
| LANCE MILLER, JR., minors, and | ) |
| ANNMARIE MILLER, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Leonard R. Devaney III, Judge.
Appearances: David H. Knapp, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellant. Jim J. Valcarce, Cooke, Roosa &
Valcarce, LLC, Bethel, and William S.
Cummings, Ashburn & Mason, P.C., Anchorage,
for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
In January 2001 Lance Miller was injured in a plane
crash while attempting to land at an unattended airport in
Kipnuk. He brought an action against the State of Alaska,
alleging that its failure to warn him that neither of the
airports windsocks was functioning constituted negligence and
seeking damages on behalf of himself, his wife, and his three
children for his injuries, lost earning capacity, and loss of
consortium. A jury awarded Miller $1,256,000 and awarded his
wife $20,000. The State appeals this judgment on four grounds.
First, it claims that the superior court erred in denying the
State a continuance when information potentially affecting
Millers credibility and the measure of damages came to light two
and a half months before trial. Second, it alleges that the
court erred in its jury instructions on negligence. Third, the
State claims that the court erred in permitting the jury to
consider Millers lost earning capacity. Finally, the State
argues that the superior court erred by failing to grant the
motion for judgment notwithstanding the verdict (JNOV). Because
we conclude that the superior court did not err in its rulings on
these issues, we affirm the judgment.
II. FACTS AND PROCEEDINGS
A. Kipnuk Airport
The accident at issue here occurred at a State-owned
airport in the Native Village of Kipnuk. The airport is open to
the public, including student pilots, and when it was built in
1981, the State installed a windsock at each end of the 2,160-
foot-long runway.1 The State aviation director testified that it
was important to have windsocks at each end because you can
easily have a different wind condition 2,000 feet away . . .
[and] [t]he windsock will indicate what the wind direction and .
. . velocity is only in the proximity right adjacent to the
windsock. Anything thats hundreds of feet away . . . could be
different.
The pole supporting the south windsock was broken in a
snowmobile accident a few years before the 2004 trial in this
case. The State issued a Notice to Airmen (NOTAM) in November
2000, stating that the south windsock was damaged [and] not
functioning properly, but not providing any further details. By
2001 the sock was still stuck in the mud[,] . . . torn and in
disrepair.
Although the north windsock had not fallen over, rust
at the base of the pole caused it to lean to one side. In
addition, the bearings that allowed the north sock to rotate
(indicating the direction of the wind) were worn out, and part of
the sock itself was missing. Paul Kiunya, an Alaska Department
of Transportation and Public Facilities (DOTPF) worker in Kipnuk,
testified that he used wooden boards to prop the sock up but that
the boards would rot quickly. He maintained that he always
report[ed] everything he knew about the socks condition to his
superiors. According to a Kipnuk resident who could see the sock
from his home, the sock did not accurately indicate the direction
of the wind. The States NOTAM did not mention the north
windsock.
B. The Accident
On January 23, 2001, Miller flew his Cessna 172 from
Bethel to Kipnuk to perform maintenance work for his employer,
the Federal Aviation Administration (FAA). His only passenger,
Stan Hoffman, was a co-worker. The trip had been delayed for at
least two days due to a snowstorm at Kipnuk. Although Miller had
flown to this airport several times before, he had just recently
received his pilots license, and was prepared to turn back if the
wind was powerful enough to make landing dangerous. Relying on
the north windsock, which was just l[y]ing limp[,] . . . not
indicating a very strong wind, he decided to land.
Miller felt a strong crosswind as he was landing, but
corrected for it by crabbing the plane to keep the wings level.
Although the plane touched down where he intended, the wind blew
it to the left as soon as it made contact with the runway.
Miller was shocked at the strength of the wind that was pushing
[the plane] off the runway, and attempted to compensate for it.
When this attempt failed, Miller decided to abort the landing,
and brought the plane to full throttle to take off again. But
the plane continued to veer to the left and, when it rolled off
the runway, it flipped over.
Millers shoulder harness was still buckled, suspending
him in an upside-down seated position. He had to use both hands
to unbuckle it, and when he did so, he landed on his head and
wrenched his neck. After opening the door and crawling out, he
helped his uninjured passenger extricate himself. He then walked
over to the north windsock:
I . . . look[ed] at that windsock and I was
dismayed at [its] condition . . . . I mean .
. . that pole that was being bent. Thats
what I [saw]. I walked over . . . and the
windsock [was] sitting there froze[n]
up . . . . I mean, I was just shocked at the
condition.
Miller took a commercial flight back to Bethel and immediately
went to the emergency room.
C. Millers Injuries
At the emergency room, Miller complain[ed] of neck
pain, some light-headedness and [a] headache with a little bit of
nausea. The doctor diagnosed cervical neck strain, lower back
strain, and a concussion. Six days later, Miller saw Dr. Shannon
Radke, a physician who had treated him several times before the
accident.2 Radke testified that Miller complained of worsening
pain in his neck and lower back and that she prescribed pain
medication.
Although Miller returned to work in March 2001,
performing light dut[ies] that did not involve flying or lifting,
he continued to experience back pain. His economic expert,
Francis Gallela, testified that Miller was kept on the payroll
without being given significant duties: He got transferred to
Anchorage, they put him at a job, he had nothing to do here. He
would sit [at] his desk with nothing to do. According to
Gallela, that wore pretty heavily on him . . . [a]nd it became
clear to [Miller] that [the] FAA did not want him there since he
couldnt do his job. A December 2002 medical evaluation, which
measured his ability to engage in physical activities [such as] .
. . lifting, carrying, walking, standing [and] different
activities involving reaching, found that Miller did not qualify
for a maintenance mechanic position with the FAA. At that time,
Miller was still taking pain medication.
In January 2003 he saw Dr. Larry Levine, a physical
rehabilitation specialist. Dr. Levine performed several
procedures, including a surgical procedure called provocative
discography,3 to identify the source of Millers back pain, and
diagnosed him with a spinal disc herniation. He testified that
Miller might need further intervention in the future, including a
possible disc replacement. Although Dr. Levine imposed
restrictions on Millers physical activities at work, he
maintained that, by September 2003, Miller was capable of working
in either sedentary or light positions.
In May 2004 Miller testified that his back hurt[] all
the time, and [that] at times, it feels like [a] knife is getting
twisted in his back. He also claimed to suffer depression and to
have contemplated suicide because of the effects of his injuries.
In addition to adversely affecting his relationship with his son,
Miller maintained that his pain had caused him to become
dependent on medication:
This is what my life has come to, bottles of
Oxycontin, Oxycodone, Neurocontin, just
endless bottles of pills. I dont want to
take this stuff, but this is what my life has
come to so I can get up, get out of my house
and try to do something as best I can . . . .
Theres Prozac there so I dont kill myself.
Heres Oxycontin, more Oxycontin. I mean,
this is all narcotics. This is what my life
has come to.
A neurologist who testified for Miller stated that Miller had
been depressed since the time of the accident and had also
suffered dizziness, blurred vision, and sexual difficulties. He
attributed these ailments to the head trauma Miller experienced
during the accident.
The States experts, however, found that Millers
injuries from the accident consisted primarily [of] . . . neck
strain, or what we would call cervical spine strain, and that
strain [was] resolved. Their examination found that Miller had a
preexisting degenerative condition in his back, and that his
range of motion was normal for someone suffering from that
condition. In addition, they concluded that Millers physical
capacity had not been permanently reduced by the accident and
that he would have been able to fly a small airplane after July
2001. One of the States experts, Dr. Stephen Marble, a
rehabilitation specialist, described Millers regimen of pain
medication as excessive in light of his injuries from the plane
accident.
Gallela, an economist, testified that the accident
adversely affected Millers earning capacity by relegat[ing] him
to light or medium work . . . jobs. Based on a comparison
between his previous wages and the average wages of the jobs he
could now perform, Gallela determined that Millers lost earning
capacity amounted to $340,431. He calculated several other
categories of economic losses, including retirement benefits,
contributions to Millers subsistence, and other household
contributions. His calculations, discussed in a letter dated May
27, 2003, assumed that Miller would be leaving his FAA job to
seek employment suitable to his physical condition on January 1,
2004. The total (including both expected losses and losses that
Miller would already have sustained by the time of trial) was
over $1 million.
D. Additional Work in Late 2003
In August 2003 Miller left the FAA without leave for
between three and four weeks to work for a private contractor in
Eek. But he did not mention this to Dr. Levine, the doctor who
was treating him at the time. Instead, he led Dr. Levine to
believe that he was staying home. The Eek contractor Millers
brother-in-law paid him roughly $16,000 to work as a barge
foreman on a construction project. The parties dispute the
nature and intensity of the work, with Miller claiming that he
generally did not do physically strenuous work, and the State
alleging that he worked an average of thirteen hours a day for
three weeks and went moose hunting after the job was completed.
Miller testified that this job was not an accurate indication of
his future earning potential, as similar positions would likely
not be available in the future.
In September 2003 the FAA took possession of an all-
terrain vehicle (ATV) that Miller had shipped to himself at the
Bethel airport. The FAA, which claimed that it owned the
vehicle, began investigating Millers apparent theft attempt.4
The following month, it demanded Millers medical records and
threatened him with termination if he remained absent without
leave. Miller resigned shortly thereafter.
E. Procedural History
Although the trial was originally scheduled to begin in
August 2003, the State moved for a continuance when the assistant
attorney general assigned to the case was called to active
military duty. The superior court granted this motion over
Millers objection, rescheduling the trial for May 2004.
Discovery, which had already been conducted, was not reopened.
When Miller filed a cross-motion for summary judgment seven weeks
after the courts deadline, and claimed that it was late because
he had not received certain evidence until after the filing
deadline, the court declined to accept the motion.
In March 2004 a new assistant attorney general entered
an appearance for the State. This attorney sought evidence on
three new matters, including surgical diagnostic procedures
performed by Dr. Levine, Millers work for a private contractor in
August and September 2003, and the circumstances of Millers
resignation from the FAA. The State also sought discovery on an
independent medical examination conducted in Seattle. This exam
was included in Millers workers compensation records, which
Miller had given the State permission to obtain in November 2002.
The State requested Millers records in January 2003, received no
response, and did not make a second request until February 2004.
It then received the records.
On April 27, 2004, less than a month before the
scheduled trial date, the State moved for a continuance to
conduct additional discovery on these issues. Miller opposed
this motion, arguing that every discovery issue that the State
complains about has either been remedied, or is due to the States
failure[] to timely seek discovery long before now.
The superior court denied the motion for a continuance,
noting that the new issues may be extremely relevant, but finding
that the State had not been diligent in following up on them.
But when the State moved for reconsideration, the court reached
the opposite result:
In denying the defendants[] [m]otion for a
[c]ontinuance, the court was legitimately
concerned with preventing further delay of
the trial because the defendants had failed
to be diligent in their discovery efforts.
However, after review[,] . . . it is apparent
that the defendants were diligent in their
efforts.
Asserting that obvious prejudice . . . [would] result to the
defendants if they [were] forced to go to trial without being
able to fairly present these issues, the court granted a
continuance and reopened discovery for ninety days.
Miller moved for reconsideration, maintaining that some
of the documents sought by the State were not in his possession
and pointing out that the courts previous order had failed to
acknowledge or weigh the prejudice [caused] to the plaintiffs by
a second continuance. In response, the court reversed itself yet
again:
While the defense raises valid concerns of
discovery and disclosure issues, upon further
review and consideration, the court is unable
to determine what prejudice the defendant[]
will actually suffer because at this time the
court cannot determine exactly what the
disputed facts will show. The court is
better able to determine these issues after
the evidence has been presented at trial and
the court will obviously entertain post-trial
motions if it becomes necessary. The
plaintiffs will suffer prejudice if the trial
is continued, and in view of the fact [that]
this is the defendant[s] second continuance,
the plaintiffs[] motion for reconsideration
is GRANTED.
The State sought an emergency stay from this court, but its
motion was denied.5
The following week, when the superior court convened
for jury selection, the State moved for the superior court judge
to voluntarily recuse himself on the ground that the courts
series of contradictory orders had seriously prejudiced its case.
Although the court denied the motion, it conceded that it had
seemed a little schizophrenic with regard to the motion to
continue, and attempted to explain why:
Clearly there [are], I think, really good
arguments on both sides[,] with plaintiffs .
. . having already given up one continuance
with strong objection last year, and then
with the agreement that discovery would
close. And at the same time, the red flags
raised by the defense regarding information
they dont feel like theyll have, it would
cause them not to be able to present their
case fairly.
Being a relatively new judge, I have
conferred with what I consider some other . .
. wiser judges or more experienced judges . .
. and I was getting different advice from
various judges. And that changed over time,
and I think some of the advice I was relying
on I had forgotten to mention that there had
already been a previous continuance for the
defense granted. And obviously, Im not
letting other judges make my decisions. Ive
pondered this. If I got paid by the hour
. . . I wouldnt be rich, but maybe Id be
making more than my salary.
. . . Clearly there are remedies to the
defense if the evidence comes in that causes
the [s]tate not to be able . . . to present
their case fairly. Its difficult for the
[c]ourt to predict the future and what
exactly was controverted in what would be
admitted. So that may explain a little bit
of [the] stop and go [orders].
The case proceeded to trial.
Evidence about the Seattle medical exam and the three
new issues was introduced at trial. The State received a copy of
the Seattle medical examination report, and, although it was not
admitted into evidence, the State was permitted to question two
of the testifying physicians about it. Dr. Levine gave detailed
testimony about his diagnostic procedures, including the
provocative discography, and testified that Miller had deceived
him about his whereabouts in August and September 2003.
Similarly, Miller testified to having worked in Eek and stated
that he attempt[ed] to ship a four-wheeler home with him. He
admitted that it had been confiscated under suspicion of theft,
but claimed that he had been sold a machine that wasnt someone
elses to sell. The State had the FAAs notes about the
investigation of the alleged ATV theft, and the FAAs letter to
Miller about his unauthorized leave of absence. These items were
introduced as exhibits when the State moved for additional
discovery time, but do not appear to have been admitted into
evidence at trial.
After Miller had presented his evidence, the State
moved for a directed verdict on the ground that there was no
evidence that it had notice about the condition of the north
windsock,6 or alternatively, on the ground that the NOTAM
constituted a sufficient warning. This motion was denied. The
jury was then given a series of instructions detailing Millers
claims, the definitions of negligence and causation, and the
method of calculating economic damages. One of the instructions
stated that the alleged acts of negligence include failures to
maintain the south windsock pole and attachments, or failure to
warn and issue accurate notices to the public of defects and
hazards, and then listed the conditions under which the jury
could find that Miller was entitled to recover. The following
instruction, using similar wording, discussed Millers claim
regarding the north windsock. Another instruction explained the
concept of comparative negligence. In addition, an instruction
informed the jury that Miller was not seeking damages related to
[his] voluntary decision to leave his employment with the FAA,
but stated that the jury could award the plaintiff a fair amount
for any reduction in future ability to earn money that he is
reasonably probable to experience. A mitigation instruction was
also given: Plaintiff is not entitled to be paid for any loss or
for any part of any loss he could have avoided with reasonable
efforts and without und[ue] risk, hardship, or embarrassment,
even though the loss originally resulted from an act or omission
for which the defendant is legally responsible.
The jury ultimately concluded that the State had been
negligent and that its negligence was the legal cause of Millers
injuries. Concluding that Miller had not been negligent, it
awarded Miller $1,256,000 and awarded his wife $20,000. Although
Millers children were listed as plaintiffs, the jury declined to
award them damages. The States subsequent motion for JNOV was
denied,7 and this appeal followed.
III. DISCUSSION
A. Standards of Review
A trial courts decision to deny a continuance is
reviewed for abuse of discretion.8 An abuse of discretion exists
if a party has been deprived of a substantial right or seriously
prejudiced by the lower courts ruling, 9 a determination that
must be made in light of [t]he particular facts and circumstances
of each case.10
We will affirm a trial courts denial of a motion for
[JNOV] unless the evidence, when viewed in the light most
favorable to the non-moving party, is such that reasonable
persons could not differ in their judgment of the facts. 11 In
our review of the trial courts ruling on a motion for JNOV, we
will not weigh conflicting evidence, or judge the credibility of
witnesses.12
With regard to a superior courts jury instructions, we
apply our independent judgment to determine whether the
challenged or refused instruction states the law correctly.13
Giving an erroneous jury instruction constitutes prejudicial
error if it probably affected the verdict.14 Finally,
determinations regarding the admissibility of evidence are
generally within the discretion of the trial court and will not
be disturbed absent an abuse of discretion.15
B. The Trial Courts Denial of a Continuance
The State argues that both the process of trial
preparation and the substance of its case were prejudiced by the
trial courts denial of a continuance. By waiting to rule on the
States motion until weeks before trial, and then issuing a series
of contradictory rulings in the days immediately before trial,
the superior court allegedly led the State to squander crucial
trial preparation time. The State appears to be making two
separate arguments here. One argument, more implicit than
explicit, is that the State was effectively denied notice of the
trial date during the two-day period between the trial courts May
19 decision to delay the trial and its final order reinstating
the trial date of May 24. But Miller filed his own motion for
reconsideration later on May 19, so the State could not have been
unaware of the possibility that trial could still begin on
May 24. Thus, out of a period stretching back to the summer of
2003, when the May 2004 trial date was set, the State lost a
maximum of two days and, even during those two days, it had
reason to continue preparing for trial.
The States second argument is that the trial courts
decision to deny further discovery prevented it from presenting
its case with regard to four allegedly new matters that
substantially changed the trial picture. As the Siggelkow court
explained, review of a trial courts decision to deny a
continuance hinges on [t]he particular facts and circumstances of
each case,16 and implicates competing policy considerations. A
courts efforts to avoid delay should not prejudice the
substantial rights of parties by forcing them to go to trial
without being able to fairly present their case.17 But the
necessity for orderly, prompt and effective disposition of
litigation and the loss and hardship to the parties . . . as well
as to witnesses compel trial judges to insist upon cases being
heard and determined with as [much] promptness as the exigencies
of the case will permit.18 This need is particularly pressing in
cases that have already been subject to substantial delay.19
Although the trial court could have been more decisive
in its handling of the continuance issue, it did not force [the
State] to go to trial without being able to fairly present [its]
case.20 By the time of trial, the State had conducted sufficient
preparation to present its core case that it did not negligently
cause Millers accident and bring the four new issues to the
attention of the jury.
As a threshold matter, it is not clear that the Seattle
medical report was a new issue at all, since the State could have
obtained a copy as early as November 2002 and attempted to do so
in January 2003. The record is silent as to why the State waited
over a year to follow up on this request, and the State conceded
at oral argument that it could have, with more diligence,
obtained the record earlier. It ultimately obtained a copy of
the report in March 2004 and questioned two of the testifying
physicians about it.21
The other three issues were also brought to the jurys
attention. Dr. Levine gave detailed testimony about the
provocative discography, and also testified that Miller had
deceived him about his whereabouts in August and September 2003.
Miller himself testified that he had worked in Eek and had
attempted to ship an ATV to himself. Although he claimed to have
been deceived by the seller, he admitted that it had been
confiscated, and acknowledged that he did not know if it had been
stolen. Thus, the four issues that the State expected to
substantially change[] the trial picture were in fact presented
at trial. They simply failed to persuade the jury.22
Moreover, the trial courts final order on the
continuance indicated a willingness to revisit the underlying
issues and entertain further motions to cure any prejudice
resulting from insufficient discovery. During trial, the
superior court considered and granted motions directed at
ameliorating any prejudice resulting from the denial of a
continuance. For example, it granted the State a one-day
continuance at the beginning of the trial to compensate for the
abruptness of its final order denying a long-term continuance.
Thus, far from being indifferent to the States ability to present
its case, the trial court appears to have guarded against any
prejudice that might result from its earlier ruling.
Finally, the continuance requested by the State would
have been the second in a case where the trial date had already
been delayed by nearly a year. It is not clear that the State
made good use of this time, as the new assistant attorney general
did not enter an appearance until March 2004. Furthermore, by
May 2004, witnesses memories of the incident, and of the
conditions at the Kipnuk airport, were over three years old. The
delay entailed by reopening discovery would likely have been a
lengthy one. As we noted, the State did not request a short
stay. In addition to the obvious dangers of deteriorating
evidence and fading memories, the requested delay would also have
entailed new travel arrangements for witnesses an important
consideration for a trial held in Bethel. In these
circumstances, the necessity for orderly, prompt and effective
disposition of litigation and the [potential] loss and hardship
to the parties . . . as well as to witnesses23 supported the trial
courts ultimate decision to deny a continuance. Because the
State has not shown that this decision deprived it of a
substantial right, we hold that the denial of a continuance did
not constitute an abuse of discretion.24
C. Jury Instructions
1. The south windsock
The State also claims that the trial court erred
regarding two jury instructions. First, in describing Millers
complaint, the court noted that the alleged acts of negligence
include failures to maintain the south windsock pole and
attachments, or failure to warn . . . the public of defects, and
immediately listed the conditions under which the State could be
held liable.25
Because the south windsock was not standing, and was
the subject of a NOTAM warning of its unreliability, it is
difficult to imagine that it, in isolation, could have been a
legal cause of Millers accident. But, as Miller notes, a
particular jury instruction should be viewed in the context of
other instructions given to the jury.26 Here, a similar
instruction was given regarding the north windsock. And, as
noted at oral argument, the two instructions were given
separately at the States request. Read together, the two
instructions describe a claim that the State was negligent in its
operation of the airport as a whole, and that this negligence
resulted in a breach of the duty the State assumed when it
constructed the windsocks.27 The instructions also explained that
Miller would not be entitled to recovery unless the jury found
that three conditions were met: (1) the State was negligent; (2)
the States negligence was a legal cause of Millers harm; and (3)
Miller suffered actual harm. In a subsequent instruction, the
court defined legal cause as a substantial factor in bringing
about the harm, such that 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
. . . the harm would not have occurred but for the act or failure
to act.
In view of the evidence about the role of windsocks and
the condition of the airport, a reasonable jury could easily have
found that all three conditions were met. The jury heard
testimony that windsocks were essential to airport safety and
that a malfunctioning windsock was as dangerous as a
malfunctioning traffic light. As the State aviation director
testified, if the pilot is coming into an unattended airport,
[he or she has] little other [than a windsock] . . . to determine
what the wind direction is.28 In an airport where one of two
windsocks is obviously not functioning, pilots would be forced to
rely entirely on the other sock a conclusion supported by
Millers testimony that he circled around twice, looking carefully
at the north windsock. A reasonable jury could therefore have
concluded that the lack of a south windsock made the airport more
dangerous by heightening reliance on the north windsock. For
this reason, viewing both the jury instructions and the condition
of the airport as a whole, rather than in isolation,29 we hold
that the trial court did not err by instructing the jury on the
south windsock.
2. Loss of earning capacity
The State also claims that the court erred in
permitting the jury to consider Millers lost earning capacity
after Miller had stipulated that he was not seeking damages
related to his decision to leave the FAA. As the State points
out, Miller continued working for the FAA for approximately three
years after the accident and, even though the nature of his work
changed, his pay remained the same. When he did resign, he did
so in the context of an investigation into a lengthy, unexplained
absence, and the possible theft of an ATV.30
But an award for lost earning capacity, which provides
compensation for a permanent diminution of the ability to earn
money,31 is distinct from an award of actual lost earnings.32 A
plaintiff whose actual lost earnings are negligible or
nonexistent may still be compensated for lost earning capacity,
even where the lack of actual earnings is a result of the
plaintiffs own choices.33 Moreover, a plaintiffs duty to mitigate
does not extend to accepting a position that entails great
hardship or personal embarrassment.34 For this reason, the
relevant inquiry is not whether Miller voluntarily resigned from
the FAA, but rather, whether Millers long-term earning capacity
was reduced by the accident and whether Miller mitigated his
damages.
The record contains conflicting evidence on this point.
On the one hand, Miller remained an employee of the FAA for
approximately three years after the accident. Had he not taken
an unauthorized leave of absence and attempted to ship a
government-owned ATV to himself, it is possible that he would
have been able to remain at the FAA indefinitely. On the other
hand, his new duties consisted largely of sit[ting] [at] his desk
with nothing to do and, according to Gallela, it was clear to
[Miller] that [the] FAA did not want him there since he couldnt
do his job. If the accident had permanently deprived Miller of
his ability to do his job, and if the FAA had no other
substantive work for him, it is unlikely that the agency would
have given him an indefinite sinecure.35 Even if it had, holding
a job with no significant responsibilities could be a source of
embarrassment to someone who maintained that he previously had
derived pride from the usefulness of his work.36 The light work37
that Miller was actually capable of performing paid significantly
less than his FAA salary. Based on this evidence, a reasonable
jury could have found that Miller was entitled to damages for
reduced earning capacity.
Moreover, the trial court gave a mitigation of damages
instruction. The State was free to argue that Millers decision
to leave the FAA voluntarily despite the higher pay represented a
failure to mitigate his damages.38 We therefore hold that the
trial court did not err in giving an instruction on future
earning capacity.39
D. Motion for JNOV
The State also claims that the court erred in denying
its motion for JNOV. A superior courts denial of a motion for
JNOV must be affirmed unless the evidence, when viewed in the
light most favorable to the non-moving party, is such that
reasonable persons could not differ in their judgment of the
facts.40 Here, the central issue of fact is whether the State
complied with its duty to use due care to guard against
unreasonable risks created by dangerous conditions.41
Although the State is correct to point out that no
federal or state law imposed a duty to install windsocks, there
is no dispute that it installed them at the Kipnuk airport. By
doing so, and inducing pilots to rely on them for safety, the
State undertook a duty to maintain the windsocks, or warn if they
were malfunctioning.42 The NOTAM, which indicated that the south
windsock was damaged [and] not functioning properly, arguably
fulfilled the States duty with regard to that windsock in
isolation. But Millers claim was based on the overall condition
of the airport.43 At trial, Miller testified that he had relied
on the north windsock in determining whether he could safely land
a reliance that was likely heightened by the lack of a south
windsock. A DOTPF worker in Kipnuk testified that he sometimes
used wooden boards to prop the sock up, but that the boards would
rot quickly. He also maintained that he always report[ed]
everything about the socks condition to his superiors. Viewed in
the light most favorable to Miller,44 this evidence would permit a
reasonable person to conclude that the State was aware that its
actions had created a dangerous condition at the Kipnuk airport
and that it failed to remedy or warn about this condition. For
that reason, we affirm the superior courts denial of JNOV.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment
of the superior court.
_______________________________
1 A windsock is a flexible cloth cone, the opening of
which is attached to a wire frame at the end of a vertical pole.
By looking at the direction the sock is pointing, and the amount
of air collected in it, pilots can gauge the direction and speed
of the wind. An aviation expert with extensive flying experience
in rural Alaska testified that every airport he had ever flown
into, including those in third world countries had a windsock.
He compared the danger of a malfunctioning windsock to the risk
of a car accident at an intersection with a malfunctioning
traffic light.
2 Miller had consulted Radke about back pain before the
accident. In April 2000 he had experienced back pain related to
the treatment of a bout of meningitis, and in July of the same
year, he was diagnosed with a protruding disc. Although he
reported decreased sensation in his right leg in July 2000, his
pain had decreased since April 2000. In October 2000 he reported
to the emergency room, complaining of sharp chest pains, but his
back was noted to be non-tender on that visit, and he also didnt
complain of any back pain. Dr. Radke testified that the medical
record from October would lead [her] to believe that [Millers]
previous disc herniations and any other back injuries that he had
had were resolved at that time. She stated that the injuries
Miller complained of in January 2001 were likely caused by the
plane accident because prior to the plane crash[,] he had not had
any complaints of back pain for quite some time, and since . . .
the plane crash he has had pain ever since.
3 Dr. Levine testified that this procedure involved
put[ting] needles into the disc space, one of which would go to
the bone, and gradually inject[ing] a little bit of dye under
pressure and record[ing] the pressure[,] as well as visually
look[ing] and see[ing] what the disc is doing.
4 The investigation appears not to have resulted in
criminal charges. Miller testified at trial that he had
purchased the ATV from a dishonest seller and had only learned
that it did not belong to the seller when the FAA confiscated it.
5 Although we pointed out the stop-and-go character of
the superior courts orders in our order denying the stay motion,
we also noted that review of the superior courts order under the
applicable standard of review, abuse of discretion, would not be
likely to result in a conclusion that the court abused its
discretion in denying a continuance.
6 The motion did not discuss the testimony of the DOTPF
employee who maintained that the sock was leaning to one side and
that he repeatedly used pieces of wood to prop it up.
7 This motion relied on arguments similar to those put
forward in the States motion for a directed verdict.
8 Neal & Co., Inc. v. City of Dillingham, 923 P.2d 89, 94
n.6 (Alaska 1996); House v. House, 779 P.2d 1204, 1206 (Alaska
1989); Siggelkow v. Siggelkow, 643 P.2d 985, 986 (Alaska 1982).
9 House, 779 P.2d at 1206 (quoting Barrett v. Gagnon, 516
P.2d 1202, 1203 (Alaska 1973)); see also House, 779 P.2d at 1207
(noting that we will not lightly overturn a lower courts decision
which was based on a review of all the relevant evidence and in
which the complaining party had reasonable opportunity in court
to introduce evidence and contest the other sides evidence).
10 Sigglekow, 643 P.2d at 987.
11 Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003)
(quoting Lynden Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001)).
12 Blumenshine v. Baptiste, 869 P.2d 470, 473 n.3 (Alaska
1994).
13 City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004).
14 Id.
15 Alderman v. Iditarod Props., Inc., 104 P.3d 136, 140
(Alaska 2004).
16 643 P.2d at 987.
17 Id.
18 Id. (quoting Kalmus v. Kalmus, 230 P.2d 57, 63 (Cal.
Dist. App. 1951), partially overturned on other grounds by Hudson
v. Hudson, 344 P.2d 295, 296-97 (Cal. 1959)).
19 Cf. Neal & Co., Inc., 923 P.2d at 95 (holding that
decision to deny continuance after five years of litigation was
not an abuse of discretion . . . at that late point in the
litigation).
20 Id.
21 The State points out that the court did not admit the
report itself and that the stop-and-go orders interfered with its
efforts to call an expert to testify about the report. But it
cites no authority in support of the proposition that the court
erred in declining to admit the report. Furthermore, the record
does not establish that the absence of the report itself, and of
an additional witnesss testimony about it, had any effect on the
result. See Fleegel v. Estate of Boyles, 61 P.3d 1267, 1270
(Alaska 2002) (We will only reverse evidentiary rulings if upon
review of the record as a whole we are left with the definite and
firm conviction that the trial court erred in its ruling and the
error affected the substantial rights of a party.); House, 779
P.2d at 1206 (This court will not disturb a trial courts refusal
to grant a continuance unless . . . a party has been deprived of
a substantial right or seriously prejudiced by the lower courts
ruling.) (citations and quotation marks omitted).
22 Cf. House, 779 P.2d at 1207 (Inability to mount a
successful case does not mean that . . . an abuse of discretion
occurred.).
23 Sigglekow, 643 P.2d at 987 (quoting Kalmus, 230 P.2d at
63).
24 Cf. House, 779 P.2d at 1207 (declining to lightly
overturn a lower courts decision which was based on a review of
all the relevant evidence and in which the complaining party had
reasonable opportunity in court to introduce evidence and contest
the other sides evidence).
25 The State did not discuss this jury instruction in its
motion for directed verdict or motion for JNOV, but it did
present its underlying argument that its duty regarding the
south windsock had been satisfied by publishing a warning in its
motion for JNOV.
26 See Lynden Inc., 30 P.3d at 617 (Jury instructions are
to be analyzed as a whole, rather than in isolation.).
27 See City of Seward v. Afognak Logging, 31 P.3d 780, 784
(Alaska 2001) (We have long recognized that a duty of reasonable
care generally arises when a person undertakes an action and that
one who assumes to act, even though gratuitously, may thereby
become subject to the duty of acting carefully. ) (quoting Moloso
v. State, 644 P.2d 205, 212 (Alaska 1982)).
28 He also noted that the State should have put the
[south] windsock back up.
29 Lynden Inc., 30 P.3d at 617.
30 The State also appeals the trial courts decision to
admit Gallelas testimony about Millers lost earning capacity. In
support of this argument, it relies on Millers stipulation that
he left his position voluntarily (and therefore would not be
pursuing a lost earnings claim). As the superior court noted,
however, Miller did not waive his claim for lost earning
capacity, a type of economic damages different from actual lost
earnings.
31 Grimes v. Haslett, 641 P.2d 813, 818 (Alaska 1982)
(quoting City of Fairbanks v. Nesbett, 432 P.2d 607, 617 (Alaska
1967)).
32 Cf. Anderson v. Litzenberg, 694 A.2d 150, 161 (Md.
Spec. App. 1997) (Impairment of earning capacity is measured by
the lost capacity to earn, rather than what a plaintiff would
have earned.) (citation and quotation marks omitted).
33 See, e.g., Am. Natl Watermattress Corp. v. Manville,
642 P.2d 1330, 1342 (Alaska 1982) (affirming a superior courts
decision to instruct the jury on lost earning capacity for a
plaintiff with negligible actual earnings, and rejecting the
defendants argument that the plaintiff had no . . . [earning]
capacity, because she had worked for [a] family-owned business
for many years for an almost nominal salary); Grimes, 641 P.2d at
818 n.3 (citing Morrison v. State, 516 P.2d 402, 405 (Alaska
1973) for the proposition that [t]he right of an injured
homemaker to recover for impaired earning capacity regardless of
whether she was employed before the injury exemplifies the
distinction between an award for lost earnings and an award for
lost earning capacity).
34 See Univ. of Alaska v. Chauvin, 521 P.2d 1234, 1240
(Alaska 1974) (noting that a university employee alleging breach
of contract was required to mitigate his damages if it did not
involve embarrassment or hardship, and holding that the employee
was not required to take an untenured position that was not
comparable to his previous job). Here, the jury was instructed
that the [p]laintiff is not entitled to be paid for any loss or
for any part of any loss he could have avoided with reasonable
efforts and without und[ue] risk, hardship, or embarrassment,
even though the loss originally resulted from an act or omission
for which the defendant is legally responsible.
35 Gallelas calculations assumed that Miller would be
leaving his FAA job to seek employment suitable to his physical
condition on January 1, 2004. Millers actual resignation
occurred shortly after the FAA began investigating him in the
fall of 2003.
36 Cf. Chauvin, 521 P.2d at 1240. According to Gallela,
having nothing to do at work wore pretty heavily on Miller.
37 The work that Miller was capable of performing was
itself the subject of conflicting evidence. While a physician
called by Miller testified that Miller was capable of working in
either sedentary or light positions and might need further
medical treatment, the States physician found that Millers
physical capacity had not been permanently reduced by the
accident, and that he would have been able to fly a small
airplane after July 2001.
38 Cf. Oost-Lievense v. N. Am. Consortium, P.C., 969 F.
Supp. 874, 881 n.3 (S.D.N.Y. 1997) (noting, in the context of an
action for breach of employment contract, that the defendants
were free to argue at trial that plaintiff has failed to mitigate
his damages . . . , as the question of damages is for the jury).
39 Cf. Am. Nat. Watermattress Corp., 642 P.2d at 1342.
40 Lynden Inc., 30 P.3d at 612 (citation omitted).
41 City of Seward, 31 P.3d at 784 (quoting Guerrero v.
Alaska Housing Fin. Corp., 6 P.3d 250, 255-56 (Alaska 2000)).
42 See City of Seward, 31 P.3d at 784 (We have long
recognized that a duty of reasonable care generally arises when a
person undertakes an action and that one who assumes to act, even
though gratuitously, may thereby become subject to the duty of
acting carefully. ) (quoting Moloso v. State, 644 P.2d 205, 212
(Alaska 1982)). A landowners duty regarding a dangerous
condition can generally be satisfied by either remedying the
condition or warning those who are likely to encounter it. Cf.
Schroeder v. St. Louis County, 708 N.W.2d 497, 511 (Minn. 2006)
(discussing a municipalitys duty to remedy or warn of dangerous
conditions on its roads).
43 See City of Seward, 31 P.3d at 784 n.12 (noting that
whether a defendants actions constitute negligence depends on all
[of] the circumstances, including the likelihood of injury to
others, the seriousness of the injury, and the burden on the
respective parties of avoiding the risk) (citing Webb v. City of
Sitka, 561 P.2d 731, 732-33 (Alaska 1977)).
44 Lynden Inc., 30 P.3d at 612.
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