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McCubbins v. Alaska Div. Of Parks & Recreation (3/5/99), 573 P 2d 588
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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
RAY MCCUBBINS and RONA )
MCCUBBINS, ) Supreme Court Nos. S-7930/7990
)
Appellants and )
Cross-Appellees, )
) Superior Court No.
v. ) 3AN-93-9933 CI
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF NATURAL RESOURCES, DIVISION)
OF PARKS AND RECREATION, )
)
Appellee and ) [No. 5088 - March 5, 1999]
Cross-Appellant. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: George M. Kapolchok, Elizabeth D.
Friedman, Anchorage, for Appellants and Cross-
Appellees. Michael C. Geraghty, Tracey L.
Knutson, and Sarah Diemer Moyer, DeLisio,
Moran, Geraghty & Zobel, Anchorage, for
Appellee and Cross-Appellant.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
MATTHEWS, Chief Justice.
1. INTRODUCTION
Ray Woodrow McCubbins and his wife, Rona McCubbins,
appeal from a jury verdict awarding McCubbins $26,914.10 against
the State of Alaska for injuries sustained in a diving accident at
Big Lake. They appeal the trial court's failure to grant them a
new trial on the issue of damages; its determination that the State
was the prevailing party for purposes of Civil Rule 82 attorney's
fees; and its award of decreased prejudgment interest pursuant to
Civil Rule 68. We hold that the jury's damage award was inconsis-
tent and order a new trial on the issue of damages.
II. FACTS AND PROCEEDINGS
1. Facts
On May 31, 1993, Ray "Woody"McCubbins, his wife, Rona, 1
and several friends went jet skiing at the Big Lake North
Recreation Site (Big Lake site) near Wasilla. The Big Lake site is
owned by the State of Alaska and managed by the Department of
Natural Resources, Division of Parks and Outdoor Recreation. A
floating orange boomline separates a swimming area from boat
traffic on the rest of the lake. During a break from jet skiing,
McCubbins ran into the lake at the swimming area and performed a
belly-flop. At this point in the lake, the water was approximately
two to three feet deep. McCubbins struck his head on what was
likely a large submerged rock.
McCubbins's friends drove him to the AIC Medical Clinic
in Wasilla where he was treated by Ed Manning, a physician's
assistant. Manning stitched together McCubbins's head laceration
and took X-rays of McCubbins's neck, which indicated a "teardrop
fracture." Manning referred McCubbins to Valley Hospital in
Palmer. That same day, Valley Hospital reviewed McCubbins's X-
rays, ordered a CT scan and notified McCubbins's Anchorage family
physician, Dr. Robert Hall.
McCubbins returned to his job as a truck driver with
Weaver Brothers in Anchorage. Three days later McCubbins saw Dr.
Hall, who sent him to the Providence Hospital Emergency Room for
new X-rays of his neck. Approximately two weeks later, McCubbins
referred himself to Dr. Lynn Taylor, a neurologist at the Virginia
Mason Medical Center in Seattle. Dr. Taylor concluded that
McCubbins had a small compression fracture in a neck bone, but was
not a surgical candidate. On Dr. Taylor's advice, McCubbins sought
physical therapy at Chugach Physical Therapy in Anchorage.
McCubbins testified that the physical therapy increased his pain
due to exercises designed to eventually expand the range of motion
in his neck.
Dr. Hall reexamined McCubbins in August and released him
for work. McCubbins resumed truck driving that month. However,
McCubbins began to experience a numbing and tingling sensation in
his limbs. He returned to Dr. Hall, who conducted another MRI at
Providence Hospital. McCubbins then sought treatment from Dr. Lee
Dorey in Tacoma in September 1993. Dr. Dorey recommended that
McCubbins undergo a two-level anterior cervical fusion to fuse his
fractured neck vertebrae. McCubbins did not obtain a second
opinion. McCubbins underwent the fusion surgery and returned to
Anchorage in October 1993 for physical therapy but did not return
to work. The surgery alleviated the numbness and tingling, but
McCubbins's neck pain increased. In November McCubbins returned to
Weaver Brothers as a full-time office employee. In the spring of
1994, McCubbins again saw Dr. Dorey because he began suffering from
neck pain in a different area. Dr. Dorey conducted a discogram,
injecting fluid into McCubbins's spine and taking an X-ray. Dr.
Dorey did not recommend additional surgery; instead he referred
McCubbins to a pain clinic in Anchorage employing Dr. Robert Swift.
Dr. Swift prescribed narcotic medication for McCubbins's pain.
2. Proceedings
McCubbins and Rona filed a complaint against the State of
Alaska on October 26, 1993, alleging that the State was negligent
in failing to inspect the Big Lake site for dangerous conditions;
warn of subsurface rocks or other dangerous conditions; and remove
the submerged rock that McCubbins struck. McCubbins and Rona
requested damages for medical expenses, pain and suffering,
physical impairment, emotional distress, lost income and loss of
consortium. The State answered on December 16, 1993, asserting,
inter alia, that McCubbins's injuries were caused by his own
negligence and that he had failed to mitigate his damages.
Trial was held from January 23 to February 3, 1995. On
the issue of damages, McCubbins presented his own testimony, Rona's
testimony and the testimony of Dr. Dorey, Dr. Swift, coworker
Patrick Smith, employer James Doyle, vocational rehabilitation
counselor Jill Friedman, and economist Francis Gallela. The State
presented the testimony of physician's assistant Ed Manning, Dr.
Taylor, orthopedic surgeon Dr. Douglas Smith, psychologist Dr.
Michael Rose, and vocational rehabilitation counselor Richard
Stone. On February 3 the jury found the State negligent for
failing to maintain the Big Lake site in a reasonably safe
condition. The jury also found McCubbins comparatively negligent
and attributed 50% fault to him and 50% to the State. By special
verdict, it awarded McCubbins $28,800 for future medical expenses,
$3,200 for past pain and suffering, and $18,000 for future pain and
suffering. The jury awarded no damages for past medical expenses,
past earnings, future earning capacity, past physical impairment,
future physical impairment, and loss of consortium.
Before the jury was discharged, McCubbins objected to the
special verdict, arguing that it was inconsistent and should be
resubmitted. The trial court discharged the jury, ruling that the
issue could be addressed in post-trial motions. McCubbins then
moved for a new trial on the issue of damages. The court denied
McCubbins's motion, noting that the verdict was consistent with the
evidence adduced at trial, except for the jury's failure to award
damages for immediate post-accident expenses, for which the court
later ordered additur. McCubbins moved for entry of final judgment
and a new trial, this time alleging improper argument by the State.
The trial court held oral argument on the motion for a new trial,
but did not issue a second ruling.
The trial court issued a final judgment for McCubbins in
the amount of $26,914.10, assessed prejudgment interest against the
State at 5.5% pursuant to Civil Rule 68 and determined that the
State was the prevailing party. The trial court ordered additur of
$3,828.20 for "emergency medical care, physical therapy and
evaluation"immediately following McCubbins's accident. McCubbins
filed a motion for reconsideration on August 1, 1996, claiming that
the State's offer of judgment was invalid and that the trial court
should have found McCubbins to be the prevailing party. The trial
court denied this motion and awarded the State attorney's fees of
$17,348.70.
III. DISCUSSION
A. Standard of Review
"The grant or refusal of a motion for a new trial rests
in the sound discretion of the trial court, and we will not disturb
a trial court's decision on such a motion except in exceptional
circumstances to prevent a miscarriage of justice." Buoy v. ERA
Helicopters, Inc., 771 P.2d 439, 442 (Alaska 1989). The evidence
must be "so slight and unconvincing as to make the verdict
unreasonable and unjust." Hutchins v. Schwartz, 724 P.2d 1194,
1199 (Alaska 1986) (citing City of Whittier v. Whittier Fuel &
Marine Corp., 577 P.2d 216, 222 (Alaska 1978)). This court will
uphold a refusal "if there is an evidentiary basis for the jury's
decision." State v. Will, 807 P.2d 467, 469 (Alaska 1991) (citing
Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982)).
B. Did the Trial Court Abuse Its Discretion by Failing to
Grant a New Trial on Damages?
1. Did the State violate the collateral source rule?
In November 1994 McCubbins filed a motion in limine,
seeking to preclude the State from introducing evidence of his
health insurance "in any way." The trial court granted the motion
"to the extent outlined at AS 09.17.070."2 McCubbins argues that
the trial court abused its discretion in failing to grant him a new
trial because the State improperly elicited testimony that his
medical expenses were covered by insurance in violation of the
collateral source rule. The exchange that McCubbins complains of
took place during the State's cross-examination of Dr. Dorey. 3
McCubbins asserts that the jury "evidently believed that
[his] past medical expenses had been paid for by his Teamsters'
insurance, but that he would need money for future expenses."
McCubbins notes that the trial court recognized that an improper
reference was made to a collateral source.
Relying on Williams v. Utility Equipment, Inc., 837 P.2d
1112 (Alaska 1992), the State argues that McCubbins has waived this
argument because he "did not make specific objections"when Dr.
Dorey mentioned McCubbins's medical coverage during his cross-
examination by the State. We agree. In Williams, the plaintiff,
Williams, filed a motion asking the trial court to prohibit the
defendant from using evidence of Williams's prior drug use. Id. at
1114. This motion was apparently granted. However, at trial the
defense did introduce such evidence and Williams failed to object
to it. On appeal, Williams argued that the trial court erred in
violating its own protective order. We disagreed, holding that
"Williams waived his objections, despite the protective order, when
he did not make specific objections as the testimony [about his
drug use] was presented." Id. at 1116-17.
Similarly, in the present case, although McCubbins's
motion in limine preventing the State from introducing evidence of
his health insurance was granted, McCubbins never objected to the
portion of the State's cross-examination of Dr. Dorey which had
effectively elicited information about McCubbins's health
insurance. Accordingly, because he did not make specific
objections to the introduction of this evidence, McCubbins has
waived the issue on appeal. 4
2. Did the State improperly argue that it was not
responsible for subsequent medical negligence?
McCubbins asserts that the State improperly argued that
subsequent medical negligence by Drs. Dorey and Swift caused or
exacerbated McCubbins's injuries, thus relieving the State of
responsibility for these damages. Specifically, McCubbins points
to the State's closing argument and its cross-examination of Dr.
Dorey, which both suggested that Dr. Dorey negligently recommended
McCubbins undergo the fusion surgery. 5 However, McCubbins never
objected to any of the State's allegedly improper arguments or
questions of which he now complains. As such, he failed to
preserve this alleged error on appeal. In Clary Insurance Agency
v. Doyle, 620 P.2d 194 (Alaska 1980), we held that appellants
waived their claim about improper closing argument because they
"failed to raise their objection in the trial court until the
hearing on their motion for a new trial, long after the jury had
reached its verdict." Id. at 204. We explained that "[o]bjections
to statements made during closing argument must be given prior to
the time the jury is instructed so that the court has an
opportunity to instruct the jury to ignore the statement or to
submit a corrective instruction." Id.; see also 58 Am. Jur. 2d New
Trial § 164 (1989) ("Generally, in order that a party may seek a
new trial on the ground that counsel for the opposing party has
made improper remarks or comments, the complaining party must have
made a proper and timely objection to the statements, and sought to
have the harmful effect thereof removed by an instruction to the
jury."). Because he did not timely object to these statements,
McCubbins has waived his arguments regarding subsequent medical
negligence.
3. Was the jury's verdict logically inconsistent?
McCubbins argues that the verdict is logically
inconsistent because the jury awarded damages in some categories
but failed to award them in "corresponding"categories. We agree
that the jury's verdict awarding damages for future medical
expenses but not for diminished earning capacity was inconsistent.
"We will not disturb a jury verdict if there is a theory
which reconciles the apparent inconsistencies." Yang v. Yoo, 812
P.2d 210, 215 (Alaska 1991). No logical theory exists for the
jury's award of $28,800 for future medical expenses, but its
failure to award anything for diminished future earning capacity.
The jury's award of $28,800 for future medical expenses closely
approximated the $28,600 cost for McCubbins's treatment at a pain
management clinic, as estimated by his expert. Thus, it is very
likely that the jury's award for future medical expenses was
intended to cover the costs of McCubbins attending a pain
management clinic, especially since one of the State's main
arguments at trial was that McCubbins suffered from chronic pain
syndrome. The State acknowledges this but argues that the jury
could have reasonably concluded that attendance and participation
in a pain management clinic would enable McCubbins to resolve his
chronic pain problems without impairing his future earning
capacity.
This argument fails to address the inconsistencies in the
jury's verdict. The State's own witness, Dr. Smith, testified that
pain clinic programs generally are "at least five days a week,
eight hours a day,"lasting for "four to eight weeks." Thus, by
traveling to and attending such a clinic, McCubbins will
necessarily miss at least four to eight weeks of work. His future
earning capacity is diminished by at least the amount of money he
would have made in the time necessary to complete a pain management
clinic. The jury's failure to award any amount for loss of future
earning capacity is therefore internally inconsistent with its
award of $28,800 for future medical expenses. Thus, the superior
court abused its discretion by not ordering a new trial on the
issue of damages. 6 Cf. State v. Lewis, 785 P.2d 24, 26-27 (Alaska
1990) (superior court abused its discretion in refusing to order a
new trial given that the jury's verdict about the amount of just
compensation owed to plaintiff was internally inconsistent).
We have held that "when an issue requiring reversal is
fairly separable from the other issues involved in the case, we may
grant a partial new trial, setting aside only so much of the
judgment as is affected by error." Poulin v. Zartman, 542 P.2d
251, 275 (Alaska 1975). "The most typically separable issues are
those of liability and damages." Caterpillar Tractor Co. v. Beck,
624 P.2d 790, 795 (Alaska 1981) (citations omitted). Those issues
are separable in the present case and therefore we order a new
trial on the issue of damages only. Cf. Sturm, Ruger & Co., Inc.
v. Day, 615 P.2d 621, 624 (Alaska 1980) ("in this case the evidence
on liability is almost entirely separate from the evidence on
damages . . . [therefore,] [i]n order to limit the time and
expenditure required by a new trial, we direct that there shall be
a partial new trial"on the issue of liability).
C. The State's Conditional Cross-Appeal
The State seeks a new trial on the issue of liability
only in the event that we grant McCubbins's request for a new trial
on damages. 7 We reject the State's argument that it is entitled to
a new trial.
1. Did the trial court abuse its discretion by
excluding testimony relating to inspections of the
swimming area?
According to the State, Doug Sonerholm was a state-
employed ranger who had the "primary day-to-day responsibility for
the maintenance and operation of the Big Lake North Recreation
Site"at the time of McCubbins's accident. Sonerholm resigned in
June 1993 and began working for the Wasilla Police Department. The
State's July 19, 1994 witness list included Sonerholm as a
potential fact witness. The State also notes that it identified
Sonerholm in a response to an interrogatory. 8 However, the State
had difficulty contacting Sonerholm and did not speak with him
until midway through the trial. The State notified McCubbins of
the substance of this contact on January 25, 1995, two days after
the beginning of trial, through a supplemental interrogatory
response.
On January 30, 1995, McCubbins moved to exclude any
testimony regarding "inspection of the subsurface or bottom of the
Big Lake North Swimming Area,"because the State had failed to
disclose this information in response to "very specific"
interrogatories. After hearing oral argument, the trial court
concluded that the State's supplemental disclosure was untimely,
although it noted that the State had not engaged in "intentional
misrepresentation." The trial court concluded that McCubbins would
be prejudiced by the late disclosure, because at this point in the
trial, McCubbins had just completed his entire liability case-in-
chief.
The trial court allowed the State to introduce
Sonerholm's testimony that he had conducted inspections on shore
and in a boat to discover litter and hazards such as broken glass,
because it was consistent with the State's answers to McCubbins's
interrogatories. Thus, the court only precluded Sonerholm from
testifying that he inspected the lake for hazardous objects in hip
waders.
The State asserts that it repeatedly attempted to contact
Sonerholm in good faith and did not willfully violate the discovery
process. Relying on Wasserman v. Bartholomew, 923 P.2d 806, 811-12
(Alaska 1996), it argues that any sanction was improper. McCubbins
responds that allowing Sonerholm to testify that he inspected the
lake in hip waders would have severely prejudiced his case because
the State failed to disclose any evidence of such inspections until
after McCubbins had completed his liability presentation to the
jury. 9
The trial court did not abuse its discretion in limiting
Sonerholm's testimony. The State's reliance on Wasserman is not
persuasive. In Wasserman, we held that the trial court improperly
excluded the testimony of a non-party witness as a sanction
because, under the circumstances, the witness's uncooperative
behavior was not properly attributable to the sanctioned defendant.
Wasserman, 923 P.2d at 812-13. However, Wasserman also held that
"[t]rial courts have the power to regulate the manner in which
evidence is discovered and disclosed at trial. In extreme
circumstances, a trial court may properly conclude that only
exclusion of a non-party witness's testimony can redress the
unfairness of the situation." Id. at 812.
Also, in State v. Guinn, 555 P.2d 530 (Alaska 1976), we
upheld the trial court's exclusion of a State Trooper's testimony
because the State, the defendant on whose behalf the Trooper was
going to testify, failed to produce the Trooper's notebook on which
his testimony was to be based. Id. at 542-43. The trial court's
exclusion of the Trooper's testimony was upheld even though the
State's failure to produce the notebook was not in "bad faith"or
a "purposeful deception." Id. at 543. Indeed, we explicitly
rejected the State's argument that the trial court abused its
discretion because "there was no showing of wilful recalcitrance"
on the part of the State. Id. Thus, the fact that the State in
the present case allegedly made good faith efforts to locate
Sonerholm is not necessarily dispositive of the issue of whether
the court abused its discretion in limiting his testimony. Accord
Fairbanks N. Star Borough v. Lakeview Enterprises, Inc., 897 P.2d
47, 58 (Alaska 1995) (citing Guinn for the proposition that "a
showing of 'wilful' disobedience was not required in order to
preclude a witness' testimony.").
Finally, the trial court's sanction was narrowly crafted
in that it merely excluded testimony inconsistent with the State's
interrogatory responses. The trial court considered other lesser
sanctions, concluding that an award of costs would not remedy the
disadvantage to McCubbins if the State were allowed to introduce
the testimony. Further, the sanction was carefully limited to the
nature of the State's violation. The trial court only excluded
testimony inconsistent with the State's interrogatory responses.
It permitted the State to argue and elicit testimony that
inspections for litter and hazards were routinely conducted from
the shore and that litter was removed by canoe. Sonerholm did in
fact testify at trial, and in closing argument the State emphasized
that Sonerholm "paid special attention"to his routine inspections
of the swimming area for "stuff in the water." Such narrowly
tailored, "less drastic"measures have been previously upheld by
this court. See, e.g., Lakeview Enterprises, Inc., 897 P.2d at 58;
Guinn, 555 P.2d at 543.
Our holding that the superior court did not abuse its
discretion in limiting the scope of Sonerholm's testimony is also
supported by other authority. See, e.g., Yukon Equip., Inc. v.
Gordon, 660 P.2d 428, 432 (Alaska 1983) (upholding exclusion of
specific testimony for failure to disclose in response to
interrogatory); cf. Grimes v. Haslett, 641 P.2d 813, 822-23 (Alaska
1982) (holding that trial court has considerable discretion in
excluding or limiting testimony); Drickersen v. Drickersen, 604
P.2d 1082, 1087 (Alaska 1979) (upholding trial court's exclusion of
expert's new opinions offered for first time at trial).
2. Was Jury Instruction Number 23 erroneous?
The State argues that the trial court improperly included
the last sentence in Jury Instruction Number 23. The instruction
read:
Plaintiff's cause of action against the
State is based upon and must meet the
requirements of the law relating to the
liability of a landowner for a dangerous
condition of property.
Before the plaintiff may be entitled to
your verdict against the State under this law,
you must find from a preponderance of the
evidence:
First: That the Big Lake North
Recreation Site, and specifically the swimming
area at the recreation site, was in a
dangerous condition on May 31, 1993;
Second: That the injury of which
plaintiff complains was proximately caused by
the dangerous condition;
Third: That the injury occurred in a way
which was reasonably foreseeable as a
consequence of the dangerous condition of the
property; and
Fourth: That the dangerous condition had
existed for a sufficient period of time or was
so obvious, or both, that the State should
have discovered and eliminated it.
The State had a duty to make reasonable
inspections.
(Emphasis added.) The State argues that the trial court misstated
the law because the instruction implied that the State had the duty
to inspect "each and every piece of remote land it owns."
Implicit in the duty to discover and eliminate hidden
dangers of a sufficient duration, which is set out in the "Fourth"
part of Instruction 23, is the duty to make reasonable inspections.
Thus the last sentence of the instruction did not impose a new
duty on the State. As the propriety of the earlier part of the
instruction is not challenged, the final sentence cannot be
considered error.
Nor do we believe that the final sentence was error in
the context of this case. We do not have here undifferentiated
public land which people may utilize for recreational pursuits only
at their own risk. In Kooly v. State, 958 P.2d 1106 (Alaska 1998),
we held that the State did not owe a duty of care to sledders who
used state rights-of-way as sledding hills. We noted that although
the hill where the accident occurred was commonly used for
sledding, the State had not "formally dedicated the sledding hill
as a recreational area." Id. at 1109. We also observed that it
was "not possible to make the thousands of miles of state rights-
of-way adjacent to highways safe for sledding." Id. Here, by
contrast, the area in question was roped off for swimming and was
part of a state recreation area. In Moloso v. State, 644 P.2d 205,
219 (Alaska 1982), a case involving a state construction area, we
observed that landowners have a duty to warn entering persons of
hidden dangers of which the entering persons are unaware. Implicit
in this duty is a duty to inspect for hidden dangers. Such a duty
should properly apply to designated use areas like the swimming
area involved in this case.
IV. CONCLUSION
The jury's verdict awarding damages for future medical
expenses and not for diminished future earning capacity was
inconsistent. Accordingly, McCubbins's motion for a new trial on
the issue of damages should have been granted. No error was
committed which requires a new trial on liability, including
apportionment of fault. Therefore, we REMAND for a new trial on
damages and VACATE the rulings regarding the prevailing party
determination and decreased prejudgment interest.
Footnotes
1 Because Rona sued only for loss of consortium, only Woody
McCubbins is referred to as "McCubbins"throughout this opinion,
unless otherwise indicated.
2 AS 09.17.070(a) provides:
(a) After the fact finder has rendered an
award to a claimant, and after the court has
awarded costs and attorney fees, a defendant
may introduce evidence of amounts received or
to be received by the claimant as compensation
for the same injury from collateral sources
that do not have a right of subrogation by law
or contract.
3 The dialogue occurred as follows:
Q Now I have one other record from your office from
September 30th that indicates after your one-and-a-half
hour appointment with Mr. McCubbins that you had obtained
authorization from the Teamsters to proceed to surgery
and that you had also obtained authorization from the
Teamsters to waive a second opinion. Do you have that
record?
A Yes.
. . . .
Q What I'm asking you is during the course of your one-and-
a-half hour appointment with Mr. McCubbins on the 30th of
September you had accomplished a telephone call to the
Teamsters authorizing surgery and advising Mr. McCubbins
to waive obtaining a second opinion before surgery. Is
that a correct reading of that note?
A No.
Q What's incorrect about it?
A Well, I didn't write it out here. My handwriting is at
the top and this is one of my office persons.
Q This is somebody on your staff?
A Correct. And it said: "Called Teamsters, Susan, any
hospital $100 deductible, 90 percent; called Beach
Street....." I think it is. ".....review, talked with
Sharon at that number, second opinion waived." That does
not mean that I waived a second opinion, that means that
. . . . the insurance company didn't require a second
opinion, they felt that they didn't need another opinion,
that my opinion was enough to authorize it.
4 Despite the waiver, we may still review the alleged error
by the trial court under the plain error standard. However, that
standard, which requires a "high likelihood"that the alleged error
will result in a "miscarriage of justice,"see Jaso v. McCarthy,
923 P.2d 795, 800 (Alaska 1996) (citations omitted), is not met
here. Even if the trial court did err, the error was harmless
because prior to the State eliciting information about McCubbins's
medical coverage, McCubbins's own attorney elicited information
from McCubbins and his employer that revealed to the jury that
McCubbins had medical coverage.
5 McCubbins also argues that the State should be barred
from propounding a "mitigation of damages"theory for the first
time on appeal since it neither raised this issue before the trial
court nor requested a jury instruction on this theory. This
argument has no merit. The State raised the affirmative defense
that McCubbins had failed to mitigate his damages in its answer,
the issue was arguably the State's primary defense on the damage
issue, and a mitigation instruction was given to the jury. Jury
Instruction Number 31 provided:
Plaintiff is not entitled to be paid for
any loss or for part of any loss he could have
avoided with reasonable efforts and without
undue risk, hardship or embarrassment, even
though the loss originally resulted from an
act or omission for which the defendant is
legally responsible. If you decide that it is
more likely true than not true that plaintiff
could have avoided any loss or part of any
loss with reasonable efforts and without undue
risk, hardship or embarrassment, you may not
require the defendant to pay the amount
plaintiff could have reasonably avoided.
In these instructions I have asked you to
decide in two separate contexts whether the
plaintiff's actions were reasonable and I want
to make sure you understand the difference.
Earlier I told you how to decide whether the
plaintiff's failure to use reasonable care
caused plaintiff's loss. If you decide it
did, you were asked to compare the plaintiff's
negligence with the negligence, if any, of the
defendant. Now I am asking you to decide
whether after the loss occurred, the plaintiff
failed to use reasonable efforts to minimize
or avoid the loss. If you decide (he/she)
did, then you may not compensate for the loss
which could have been reasonably avoided.
6 The superior court's additur order did not redress the
inconsistency of the jury's verdict because the additur focused on
past medical expenses, not future earning capacity.
Because we order a new trial on damages based on
McCubbins's argument that the jury's award for loss of future
earning capacity was inconsistent with its award for future medical
expenses, we find it unnecessary to address his other arguments
about the inconsistency of the verdict. Nor do we address his
claims that the damages award was inadequate, that the trial court
erred in holding that the State was the prevailing party, or that
the trial court erred in awarding decreased prejudgment interest
pursuant to Civil Rule 68.
7 McCubbins argues that the State cannot raise this issue
because it "failed to request a new trial on the issue of liability
in its points on appeal." This argument is without merit. The
State, in its points on appeal, did "specifically reserve[]"for
review the issues it now argues on appeal "in the event a new trial
is granted for the McCubbins."
8 The substance of the response is as follows:
Request: Please list which rangers or other state employees
were responsible for patrolling the Big Lake North,
East Wayside area in 1993.
Response: Prior to Mr. McCubbins' injury on Memorial Day, the
following park staff worked at Big Lake North State
Recreation Site:
District Ranger Dennis Heikes
Area Ranger Doug Sonerholm
Volunteer Hosts Ned and Fay Johnson
9 The State also argues that the trial court improperly
relied on Civil Rule 11 in imposing this sanction. McCubbins
responds that the trial court did not rely on Rule 11 to impose the
sanction. Although the trial court mentioned that Rule 11 "makes
it clear that counsel are responsible for the facts that they're
promoting in litigation,"the court went on to explain that the
State's response to McCubbins's interrogatory "was incorrect and
incomplete compared to what Mr. Sonerholm presently is expected to
say." It seems clear to us that the sanction was imposed pursuant
to Civil Rule 37. See Wasserman, 923 P.2d at 811 (noting that
"[a]lthough the court did not explicitly cite Civil Rule 37 in its
ruling, the principal source of sanctions for inadequate discovery
responses is Civil Rule 37.").
-22- 5088
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