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Richey v. Oen and Rent-A-Wreck, Inc. (1/24/92), 824 P 2d 1371
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
SHARON G. RICHEY and )
ALAN RICHEY, ) Supreme Court File No.
Appellants, ) Superior Court File No.
) 3AN-88-5336 Civil
v. ) O P I N I O N
GLEN M. OEN, individually, )
AARON, INC., d/b/a RENT-A- )
WRECK, INC., an Alaskan )
corporation, and ROY E. )
STRAUB, d/b/a RENT-A-WRECK, )
) [No. 3801 - January 24, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Dana A. Fabe, Judge.
Appearances: Larry D. Card and Laurel
J. Peterson, Law Offices of Laurel J.
Peterson, P.C., Anchorage, for Appellants.
Larry Z. Moser and Bruce A. Moore, Pletcher,
Weinig, Lottridge & Moser, Anchorage, for
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
This appeal arises from a personal injury action filed
by Sharon Richey and her husband, Alan Richey, against Glen Oen,
Aaron, Inc., d/b/a Rent-A-Wreck, and Roy Straub, d/b/a Rent-A-
Wreck. Sharon Richey (Richey) was rear-ended by an automobile
driven by Oen and rented by him from Rent-A-Wreck. Richey
settled with Rent-A-Wreck and proceeded to trial against Oen. At
trial, Oen claimed that Richey's injuries were due to a pre-
existing condition. The superior court granted Richey's motion
for a directed verdict on the issue of negligence and advised
counsel that the issue of causation and damages would be
submitted to the jury. Neither party objected to the superior
court's ruling on this motion. Using a special verdict form, the
jury found that Richey suffered no damages as a result of the
accident. Richey moved for a judgment n.o.v. and a new trial.
Both motions were denied by the superior court. Richey appeals.
I. Factual and Procedural History
On January 9, 1987, Richey was stopped in her car
waiting for a signal light to change at the intersection of
Arctic Boulevard and International Airport Road in Anchorage.
Oen's car approached from behind, attempted to stop, and slid on
ice into the rear of Richey's car.1 Oen was visiting from
Fairbanks and had rented the car earlier that day from Rent-A-
Richey filed suit against Oen and Rent-A-Wreck for
personal injuries resulting from the accident. Richey dismissed
Rent-A-Wreck and went to trial against Oen. At trial, the
parties offered conflicting evidence as to the nature and extent
of Richey's injuries. Richey testified that she experienced
lower back pain immediately following the accident. She further
testified that she complained of this to investigating traffic
officer Kirkley, and claimed that as a result she left work and
remained at home. The day following the accident, Richey visited
her chiropractor, Dr. Nordstrom, who diagnosed her as suffering
from an acutely traumatized lower back disorder. Nordstrom
immediately referred her to Dr. Hoversten, who prescribed muscle
relaxants and pain medication.3
On February 10, 1987, Dr. Nordstrom referred Richey to
Dr. Garner, an orthopedic surgeon. Doctor Garner testified that
he examined her, reviewed her medical records and various test
results, and concluded that she suffered from a herniated disc at
the L-5, S-1 level. Richey testified that although she took
medication and received cortisone injections and nerve blocks for
the pain, she could not sleep, stand, or lie down for very long
without experiencing pain. By August 1987, her condition had not
improved. Consequently, on October 14, 1987, Richey underwent a
laminectomy performed by Garner. Richey presented evidence that
she lost almost six months of work and incurred in excess of
$22,000 in medical expenses as a result of the accident.
Oen presented a different story at trial concerning
Richey's injuries. Oen testified that his rental car simply
"bumped"into Richey's car, resulting in only minor damage to her
car. Oen testified that Richey never told him after the accident
that she was in pain nor did he observe her to be in any
discomfort. Oen claimed that "she said she had a little quirk in
her back." Officer Kirkley testified that he did not recall
Richey describing or exhibiting pain and that he "coded" the
accident for "no injuries."4
The gist of Oen's defense was that Richey's physical
injuries were preexisting, spanning "almost twenty years prior to
her 1987 [rear-end] accident." Richey was involved in two
automobile accidents in the 1960s, one of which was a rear-end
collision and the other which required hospitalization. Richey
also had two slip and fall accidents in 1978. On November 3,
1978, she slipped and fell down a flight of stairs at work. She
suffered lower back pain, radiating leg pain, and numbness in her
foot as a result of the fall. Six weeks later, Richey suffered a
second fall, which again resulted in lower back pain. She was
treated by Dr. Dittrich, an orthopedic surgeon, for back pain
resulting from the two falls. Doctor Dittrich testified that he
had diagnosed Richey at the time as possibly suffering from a
ruptured disc at the fifth lumbar vertebra. Doctor Nordstrom
took x-rays of Richey and sent them to a radiologist, Dr. Cain,
for interpretation. Doctor Cain reported that he found
degenerative arthritis and narrowing of the disc space at L-5, S-
1 in reviewing x-rays taken in 1981 and after the rear-end
accident in 1987. Doctor Garner testified that when he operated
on Richey he noticed some dense nerve scarring. Doctor Dittrich
testified that the 1978 fall could have caused the nerve scarring
observed by Doctor Garner. Finally, a neurologist, Dr. Pervier,
reviewed Richey's medical records and testified that reports of
Richey's pre-accident condition were consistent with a disc
problem at the L-5, S-1 level.
At the close of all evidence, Richey moved for a
directed verdict as to Oen's negligence. The court granted the
motion, noting "[o]f course, the issue with regard to causation
of injury and preexisting injury remains." The case was
thereafter submitted to the jury. Using a special verdict form,
the jury found that Richey suffered no injuries from the
Richey then moved for a judgment n.o.v. or, in the
alternative, for a new trial. The superior court denied both
motions. Richey appeals here the denial of those two motions.
II. Richey's Motion for Judgment N.O.V.
Richey argues that the superior court erred in not
granting her motion for judgment n.o.v. for two reasons. First,
she asserts that reasonable persons could not have concluded
other than that she suffered "some" damages. Second, she
contends that the superior court committed an abuse of discretion
in allowing a physician, Dr. Pervier, to give expert testimony.
Oen argues that the denial of the judgment n.o.v.
should be affirmed because Richey failed to move for a directed
verdict specifically as to damages and causation.
The standard of review for a denial of a judgment
n.o.v. requires us to determine whether 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. Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska
1982). In making this determination, we do not weigh conflicting
evidence or judge the credibility of witnesses. Holiday Inns of
America v. Peck, 520 P.2d 87, 92 (Alaska 1974).
Alaska Rule of Civil Procedure 50(b) provides in part:
"[A] party who has moved for a directed verdict may move to have
the verdict and any judgment entered thereon set aside and to
have judgment entered in accordance with his motion for a
directed verdict . . . ." Where a party fails to move for a
directed verdict at the close of the evidence, a superior court's
refusal to grant a judgment n.o.v. cannot be considered on
appeal. Metcalf v. Wilbur, Inc., 645 P.2d 163, 170 (Alaska
At the close of all the evidence, Richey's attorney
stated, "Your Honor, if I may at this time formally of record
move for a directed verdict based on the status of the evidence,
all the evidence, that is before the Court on the issue of
negligence of the Defendant driver[.]" (Emphasis added).
Richey's attorney then proceeded to explain in detail how Oen's
conduct was negligent and how Richey did absolutely nothing to
contribute to the accident. Applying this court's ruling in
Green v. Plutt, 790 P.2d 1347 (Alaska 1990), the superior court
stated, "I will grant the motion for directed verdict and will
instruct the jury that the issue of the Defendant's negligence is
no longer before them." The court noted, "[o]f course, the issue
with regard to causation of injury and preexisting injury
remains." Richey's attorney thereafter made a motion for a
directed verdict as to joint tortfeasors, which the court denied.5
Following the return of the jury's verdict, Richey moved for a
judgment n.o.v., which the court denied.
The narrow question here is whether Richey's motion for
directed verdict included the causation and damages issues
ultimately resolved by the jury. In our opinion, it did not.
A party seeking to prevail in a negligence action must
prove a duty, a breach of that duty, and an injury which was
proximately caused by the breach. Leigh v. Lundquist, 540 P.2d
492, 494 (Alaska 1975). In proving its case, a party may choose
to move for a directed verdict as to its entire case, City of
Palmer v. Anderson, 603 P.2d 495, 501 (Alaska 1979), or only one
part of its case, Gregory v. Padilla, 379 P.2d 951, 953 (Alaska
We read Richey's motion for a directed verdict as
pertaining only to Oen's negligence, that is, to Richey's burden
of proving that Oen owed her a duty to exercise due care and that
Oen breached that duty. If Richey's attorney had intended the
motion to include the causation and damages issue, he should have
included them in either his argument in support of the directed
verdict motion or a separate motion after the court stated it was
letting the two issues go to the jury. Richey's attorney did
neither and, consequently, Richey was precluded from moving for a
judgment n.o.v. Under our ruling in Metcalf, Richey is barred
from appealing the superior court's denial of the motion.
III. Richey's Motion for a New Trial
Richey argues that the superior court erred in denying
her motion for a new trial for two reasons. First, she contends
that the superior court erred in allowing Dr. Pervier to give
expert testimony. Second, she asserts that "[t]he evidence
supporting the jury's verdict was so completely lacking or so
slight and unconvincing as to make the verdict plainly
unreasonable and unjust."
Oen argues that the motion for a new trial was properly
denied because the admission of Dr. Pervier's testimony does not
warrant a new trial, the verdict is supported by the evidence,
and the jury's finding of no causation relieved the jury of the
duty to determine aggravation.
In Buoy v. ERA Helicopters, Inc., 771 P.2d 439 (Alaska
1989), we stated the standard of review concerning the denial of
a motion for a new trial:
The decision to grant or deny a new
trial is within the trial court's discretion.
If there is an evidentiary basis for the
jury's decision, the denial of a new trial
must be affirmed. However, if the evidence
supporting the verdict was so completely
lacking or slight and unconvincing as to make
the verdict plainly unreasonable and unjust,
then we must reverse the denial of a motion
for a new trial. In reviewing such denials,
we must view the evidence in the light most
favorable to the non-moving party.
Id. at 445 (quoting Hayes v. Xerox Corp., 718 P.2d 929, 933
A. Doctor Pervier's Testimony
Richey argues that the superior court erred in allowing
Dr. Pervier to give his expert opinion without either sufficient
hypothetical facts or credentials in accident reconstruction.
As Oen points out, however, Richey never proffered this
argument as part of her motion for a new trial or in her
statement of points on appeal. Although Richey did object on
foundational grounds to Dr. Pervier's testimony during the trial,
Richey is not appealing an evidentiary ruling concerning the
admissibility of Dr. Pervier's testimony. Instead, she is
appealing the superior court's denial of her motion for a new
trial. Thus, Richey's argument that the superior court erred in
permitting Dr. Pervier's testimony is now raised for the first
time. We find that because the superior court never considered
whether admitting Dr. Pervier's testimony was grounds for a new
trial, and because this case neither was tried to the court,
Isaacs v. Hickey, 391 P.2d 449, 452 (Alaska 1964), nor warrants
our use of the plain error rule, Matter of L.A.M., 727 P.2d 1057,
1059 (Alaska 1986), Richey's argument here is waived for purposes
of this appeal. Evron v. Gilo, 777 P.2d 182, 186 (Alaska 1989).
B. Whether There Is an Evidentiary
Basis for the Jury's Verdict
The crux of Richey's argument is that she suffered at
least "some" damages as a result of the accident and that the
evidence suggesting otherwise is so completely lacking or is so
slight and unconvincing as to make the jury's verdict plainly
unreasonable and unjust.6
The question is a close one because there is a plethora
of conflicting testimony concerning the nature and extent of
Richey's lower back injury. On the one hand, Richey testified
that she immediately experienced lower back pain about which she
told Oen and Officer Kirkley. Oen testified, however, that she
never said she was in pain, but that she felt "a little quirk"in
her lower back. Officer Kirkley testified that he did not recall
Richey complaining of any injuries. He further testified that he
coded the accident for "no injuries"and would not have done so
unless the parties had indicated that they were not injured.
Richey testified that she called Dr. Nordstrom on the day of the
accident and visited him in his office the following day. Doctor
Nordstrom testified that he diagnosed her as suffering from an
acutely traumatized lower back disorder and referred her to a
physician who immediately prescribed muscle relaxants and pain
medication. Richey testified that although she took the
medication, she still could not sleep, stand, or lie down for any
length of time without experiencing pain.
Yet Drs. Nordstrom, Cain, Dittrich, and Pervier
testified that Richey suffered from a degenerative lower back
condition which may have resulted from several previous
accidents. In fact, as recently as two months before the
accident, Dr. Nordstrom had treated Richey for pain in her lower
back. Finally, Dr. Pervier testified that he did not believe
that the accident caused any of Richey's injuries.
Oen argues here that Richey's lack of candor with
respect to her preexisting injuries and the events surrounding
the accident was a factor in causing the jury to find no
causation. The jury heard her give the following testimony:
Q. Have you had any other falls
prior to the accident that we are here
Q. Have you ever had any prior
She admitted to seeing Dr. Nordstrom and stated:
Q. And, were you seeing him for
some back pains during those times?
A. If that is what he has, than
[sic] that's what I was seeing him for.
. . .
Q. Did you see any other doctors
for back pain?
Q. Have you ever had any other
prior leg pains?
Given these inconsistent and inaccurate statements and her
inability to identify any damage or repair to her vehicle from
the accident, the jury had the opportunity to disregard or take
lightly her testimony on the issue of causation. See Innes v.
Beauchene, 370 P.2d 174, 177 (Alaska 1962) (trier of fact may
observe witness demeanor and choose to disbelieve even unrefuted
testimony, especially where the testimony contains patent
omissions and inconsistencies).
Construing the conflicting evidence in the light most
favorable to Oen, as we must do, we are unable to say that the
evidence indicating that Richey suffered no damages is so
completely lacking as to make the jury's finding unreasonable or
unjust. Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 447 (Alaska
1989); Hayes v. Xerox Corp., 718 P.2d 929, 933 (Alaska 1989).
Indeed, this evidence derives directly from at least three
different persons (Officer Kirkley, Dr. Pervier, and Oen) and
indirectly from other evidence presented by Oen as to Richey's
prior medical history.
Nor can we say that this evidence is slight and
unconvincing. Both Officer Kirkley and Oen testified--in direct
contradiction to Richey's testimony--that Richey never stated or
indicated she was in pain during the period immediately following
the accident. Doctor Pervier testified that Richey's condition
was not related to the accident. The jury was asked, in effect,
to weigh this testimony and other evidence of Richey's prior
medical history against the testimony of Dr. Nordstrom and
Richey. A careful reading of Dr. Nordstrom's testimony, however,
reveals that he stated only that Richey suffered an acute
traumatization of her lower back. He neither stated nor
suggested that her condition was a result of the accident.
In the face of conflicting testimony, the jury
determined that Richey suffered no injuries as a result of the
accident. Jurors are entitled to disbelieve a witness or
otherwise discount a witness's testimony. Bailey v. Lenord, 625
P.2d 849, 856 (Alaska 1981). Such credibility determinations
made by the jury are generally left undisturbed by this court on
review. Jackson v. White, 556 P.2d 530, 532 n.4 (Alaska 1976).
On the record before us, we cannot say that the evidence
supporting the jury's conclusion is so slight or unconvincing as
to render the verdict either unfair or unreasonable.
Accordingly, the superior court did not err in denying Richey's
motion for a new trial.
1. Oen testified that his car was traveling at
approximately fifteen miles per hour when it struck Richey's car.
2. The Rent-A-Wreck car did not have studded or all-weather
3. Doctor Nordstrom continued to treat her for several
weeks following the accident for muscle spasms of the lumbar
4. Officer Kirkley testified that, as a matter of
procedure, when he arrives at the scene of an accident he asks
whether there are any injuries. He stated that he only reports
"no injury"if the persons involved in the accident so indicate.
5. Richey's attorney neither articulated a motion for a
directed verdict as to damages or causation, nor mentioned these
issues when explaining why Richey should prevail on her directed
verdict motion as to negligence.
6. Richey also argues that the jury should have considered
whether the accident resulted in an aggravation of a preexisting
injury. The aggravation question was addressed in jury
instruction 25 and was answered by the jury's determination on
the special verdict form that Richey suffered no damages as a
result of the accident.