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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lynden Inc. v Walker (09/14/2001) sp-5468

Lynden Inc. v Walker (09/14/2001) sp-5468

     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.


AIR FREIGHT, INC., LYNDEN     )    Supreme Court No. S-9496
LOGISTICS, INC.,              )    Superior Court No.
                              )    3AN-94-11144 CI
             Appellants,      )
     v.                       )    O P I N I O N
JAMES R. WALKER,              )
             Appellee.        )    [No. 5468 - September 14, 2001]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        John Reese, Judge.

          Appearances:  L. G. Berry, Robertson, Monagle
& Eastaugh, Anchorage, for Appellant Lynden Logistics, Inc. 
Timothy J. Petumenos, Birch, Horton, Bittner and Cherot, Anchorage,
for Appellee.

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

          MATTHEWS, Justice.

          Lynden Logistics appeals a judgment entered against it in
a personal injury suit brought by James Walker.  Lynden argues that
the trial court erred in not granting Lynden summary judgment
because it had no duty to Walker to load materials so that Walker
could safely unload them and because there were no material facts
at issue.  Lynden also argues that the trial court erred in its
jury instructions, abused its discretion in permitting one of
Walker's expert witnesses to testify, erred in not granting JNOV on
Walker's claim for future medical expenses, and erred in denying
Lynden's motion for JNOV or a new trial.
          Because Lynden had a duty to Walker to load the materials
so that they could be safely unloaded, and there was a question of
fact whether Lynden fulfilled its duty, we affirm the superior
court's refusal to grant summary judgment or JNOV.  We find that
any confusion in individual instructions was harmless when
considered in light of the instructions as a whole.  We further
find that the superior court did not abuse its discretion in
permitting one of Walker's experts to testify.  But because Walker
failed to provide data on which the jury could reasonably rely in
estimating future medical expenses, we vacate the award of future
medical expenses and remand for remittitur.
          James Walker, an employee of H.C. Price Co., broke his
ankle on February 19, 1993, while unloading pipe saddles from a
truck at a construction site on the North Slope.  The injury
required eight surgeries on and fusion of his ankle, and led to
several infections which required skin grafts.  Walker will limp
for the rest of his life. 
          Lynden Logistics, Inc., operated a warehouse facility
owned by Arco.  Lynden was responsible for managing the warehouse. 
When Arco contractors ordered construction material from the
warehouse, Lynden employees staged and loaded the materials onto
trucks supplied by the contractor.  At the time of Walker's injury,
his employer, H.C. Price, was building a pipeline for Arco. 
          On the date of the accident, Walker was sent to unload
pipe saddles from a truck and to transport the saddles with a
forklift to the construction site.  Pipe saddles are U-shaped steel
structures which weigh between 250 and 300 pounds.  The truck
Walker was instructed to unload carried six saddles banded to
wooden pallets, and three loose saddles.  It was a common practice
at the warehouse for Lynden employees to load saddles without a
          Walker unloaded the six saddles banded to pallets using
his forklift.  He attempted to unload the loose pipe saddles by
hand with the help of the truck driver.  Walker fell when they lost
control of one of the pipe saddles, and shattered his ankle. 
          Walker sued Lynden, claiming that Lynden was negligent in
failing to secure the loose saddles to pallets, and that this
failure caused the accident.  Lynden moved for summary judgment,
asserting that it did not have a duty to load the saddles in a way
that would protect Walker from injury when he unloaded them and
that "all the evidence shows the plaintiff's injuries were caused
by his own neglect, not defendant's acts or omissions."  The
superior court denied Lynden's motion, holding that Lynden had a
duty to Walker based on the Restatement (Second) of Torts sec.sec.
391-393.  The court found that there was a factual dispute as to
whether Lynden's failure to bind the loose saddles to pallets was
          At trial, some witnesses testified that loading loose
pipe saddles onto trucks was a common practice.  But other
witnesses testified that loading loose saddles was dangerous and
that prior to the accident, H.C. Price had requested that Lynden
not load loose saddles.  The jury also heard testimony that Walker
could have safely unloaded the saddles using a forklift or other
          Michael Burleson, testifying as an expert witness for
Walker, stated that Lynden had failed to package the saddles
properly, and that Lynden's failure to do so caused the accident. 
Lynden sought to preclude Burleson's testimony prior to trial,
arguing that Burleson was not qualified as an expert witness.  The
superior court denied this motion. 
          At trial, the jury found that both Lynden and Walker were
negligent, attributing seventy-five percent of the responsibility
to Lynden and twenty-five percent to Walker.  The jury found
damages totaling $3,308,700, of which $200,000 were for future
medical expenses.  Lynden moved for JNOV or a new trial, alleging
that the saddle could have been safely unloaded by Walker, and that
the award of future medical expenses was not supported by the
evidence.  The court denied this motion and this appeal followed. 
          The denial of a motion for summary judgment is reviewed
de novo. [Fn. 1]  A moving party is entitled to summary judgment if
there are no material facts at issue and the movant is entitled to
judgment as a matter of law. [Fn. 2]  All inferences of fact will
be drawn in favor of the non-moving party. [Fn. 3]
          A challenge to jury instructions presents a question of
law which is reviewed independently. [Fn. 4]  A legally erroneous
instruction will lead to reversal only where it prejudices a party;
prejudice exists unless one can "say with fair assurance that the
result was not affected by [the] error." [Fn. 5]  
          The decision to admit or exclude expert testimony is
reviewed on appeal for abuse of discretion. [Fn. 6]  That standard
also applies to appellate review of the denial of motions for a new
trial. [Fn. 7] 
          The denial of a motion for a directed verdict or JNOV
will 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 as to the facts." [Fn.
     A.   The Superior Court Properly Denied Lynden's Motion for
Summary Judgment.

          1.   Lynden had a duty to load the pipe saddles in a
manner that allowed them to be unloaded safely.

          In its motion for summary judgment, Lynden argued that it
had no duty to Walker, and that Walker had therefore failed to
establish a viable cause of action.  It repeats this argument on
          "The existence of a duty turns not on the particularized
facts of a given case, but rather on the basic nature of the
relationship between the parties to the cause of action." [Fn. 9] 
While the question whether a duty exists may be susceptible to
summary judgment, questions about the scope of a duty and whether
the duty was breached are normally not susceptible to summary
judgment, "particularly so when the scope of the duty poses a fact-
specific question, involving policy and 'circumstantial judgments'
that our legal system reserves for the jury." [Fn. 10]
          The trial court denied Lynden's motion for summary
judgment, basing its conclusion in part on sec.sec. 391, 392 and
393 of
the Restatement (Second) of Torts.  These sections impose a duty of
care on suppliers who supply chattels to others "for the suppliers'
business purposes" when the suppliers know or have reason to know
that the chattels are likely to be dangerous for intended uses. 
          Lynden argues that it did not supply chattels (pipe
saddles) for its business purposes and so these sections do not
apply.  Comment d of sec. 392 of the Restatement addresses the
question of what uses are for a "supplier's business purposes."
[Fn. 11]  Exactly what is meant by this phrase is not completely
clear.  But we are told that "the fact that [a chattel] is being
used for the purpose of completing a contract or business dealing
as undertaken by the supplier is often important." [Fn. 12]  As an
example the comment states that a railroad having a contract to
deliver goods may be liable for the unloading of a railcar by its
customer's employees at its customer's plant:  "This is true
because the contract to deliver involves the unloading of the car,
and also involves such movements of the car in the private yards of
the manufacturing company as are necessary to place it in a
position convenient for unloading." [Fn. 13]  
          Lynden's contractual responsibility in this case was to
load equipment onto a truck owned by H.C. Price, not to deliver
materials.  Lynden's contractual duties were completed once Lynden
loaded the requested equipment.  Thus, based on comment d to sec.
it seems doubtful that the pipe saddles met the "supplier's
business purposes" requirement at the time Walker was injured.
          Although the trial court may have erred in finding a duty
based on sec.sec. 391-393 of the Restatement, other jurisdictions
found a duty to load materials so that they can be safely unloaded
independent of the Restatement's requirements. [Fn. 14]     
          In Jablownski v. United States, a man unloading crates
from a boxcar was severely injured when a column of crates fell on
top of him. [Fn. 15]  In upholding a jury verdict against the
United States, which had loaded the crates, the court permitted
recovery on the theory that a consignor has a duty to a consignee
to load freight on a railroad car properly. [Fn. 16]  
          In Wintersteen v. National Cooperage and Woodenware Co.,
the Illinois Supreme Court upheld a jury verdict against a shipper
when the unloader of the improperly loaded railroad car was injured
by barrels falling out of the car door. [Fn. 17]  Rejecting the
shipper's contention that it had no duty of care to the unloader,
the court wrote that "[i]t is axiomatic that every person owes a
duty to all persons to exercise ordinary care to guard against any
injury which may naturally flow as a reasonably probable and
foreseeable consequence of his act . . . ." [Fn. 18] 
          As Wintersteen indicates, generally an actor, "if he acts
at all, must exercise reasonable care to make his acts safe for
others." [Fn. 19]  In this sense there is a general duty of care
running to all who might foreseeably be injured by an actor's
conduct.  But duty takes on a special relevance where the question
is whether the actor must take affirmative action, or where there
are special policy reasons for not imposing tort liability. [Fn.
20]  Here, the defendant acted, so the question is whether this
case falls within the latter category; that is, are there reasons
of policy for not imposing tort liability on this type of negligent
action?  As the following review of our case law indicates, such
cases are unusual, [Fn. 21] and this is not one of them.
          In D.S.W. v. Fairbanks North Star Borough School
District, we considered whether a public school had a duty of care
to discover and assist in overcoming a child's learning disability.
[Fn. 22]  In holding that the school had no such duty, we outlined
seven factors a court should consider when determining whether duty
attaches to or demands particular conduct. [Fn. 23]  We derived our
test from Peter W. v. San Francisco Unified School District, in
which the California Court of Appeals addressed a similar question,
and articulated factors to inform the public policy inquiry into
whether a duty should attach. [Fn. 24]  Those factors are:
          1.   The foreseeability of harm to the
          2.   The degree of certainty that the
plaintiff suffered injury,
          3.   The closeness of the connection between
the defendant's conduct and the injury suffered,
          4.   The moral blame attached to the
defendant's conduct,
          5.   The policy of preventing future harm,
          6.   The extent of the burden to the defendant
and consequences to the community of imposing a duty to exercise
care with resulting liability for breach, and
          7.   The availability, cost, and prevalence of
insurance for the risk involved.[ [Fn. 25]]

In finding no duty in D.S.W. we stressed the uncertainty inherent
in determining educational injury and its cause. [Fn. 26] 
          Other cases in which we have found no duty based on a
review of the D.S.W. factors include:
          Mesiar v. Heckman. [Fn. 27]  Here we held that the state
did not have a duty to fishermen to collect fish population data in
a nonnegligent manner.  Despite the foreseeability of economic
injury to fisherman if data was improperly collected, we found that
the following factors argued against imposing a duty:  lack of
moral blameworthiness associated with negligent conduct which
creates a risk of economic harm, as distinct from a risk of
personal injury or death; the possibility that imposing a duty
would prompt the state to manage "to heed the loudest threats
rather than rely on sound principles of resource management" for
the benefit of all Alaskans; and the severe burden a duty would
impose on the public, opening "the door to endless damage claims by
unlimited groups of resource users." [Fn. 28]  
          Kooly v. State [Fn. 29] and Schumacher v. City and
Borough of Yakutat. [Fn. 30]  In these cases we addressed the
question whether the state and local governments had a duty to make
streets and rights-of-way safe for sledding.  In determining that
no such duty exists, we stressed the burden imposing such a duty
would have on the community: [Fn. 31]  
               Given the varied terrain in Alaska, it is not
possible to make the thousands of miles of state rights-of-way
adjacent to highways safe for sledding.  Any effort to do so would
be both expensive and futile.  Imposing such a duty would simply
inflict heavy damage judgments on the State with little or no
corresponding increase in public safety.[ [Fn. 32]]

          Hawks v. State, Department of Public Safety. [Fn. 33] 
This case involved a claim of negligent infliction of emotional
distress by a murder victim's mother against the state police for
negligent failure to identify the victim's remains.  We found that
the lack of moral blameworthiness for the police negligence and the
burden on the community from permitting such claims weighed heavily
against finding a duty. [Fn. 34]
          Adkinson v. Rossi Arms Company. [Fn. 35]  Adkinson was
convicted of manslaughter for the intentional killing of a third
party.  He sued the manufacturer of the gun used in the killing for
damages including emotional distress and economic losses, alleging
that it was defective and discharged accidentally, causing his
conviction and imprisonment.  We found that no duty ran from the
manufacturer to Adkinson, emphasizing that public policy
considerations argued against allowing one convicted of an
intentional crime from shifting the consequences of the conviction
to a third party and ultimately to the public. [Fn. 36]
          Imposing liability for breach of a duty to load chattels
in such manner that they may be safely unloaded has little in
common with the foregoing cases.  Unlike D.S.W., Mesiar, Hawks,
and, in part, Adkinson, the injury suffered as a consequence of
violation of such a duty is personal injury, not emotional distress
or economic loss. [Fn. 37]  No plausible "floodgate of litigation"
argument can be made.  Moreover, recognition of a duty does not
conflict with or threaten the implementation of other recognized
policies, as was the case in Mesiar (sound natural resource
management for the general benefit) and Adkinson (sound corrections
          Instead, analysis of the D.S.W. factors weighs in favor
of imposing a duty to load materials in a manner so that they can
be safely unloaded, and reveals no reason not to conclude that such
a duty exists.  It is readily foreseeable that if materials are
loaded in a way such that they cannot be safely unloaded, people
assigned to unload the materials might be injured.  Lynden argues
that Walker's injury was not foreseeable, and that it was therefore
not proper to find it had an actionable duty to Walker.  However,
the fact-specific foreseeability to which Lynden refers goes to
causation and negligence, rather than to the existence of a duty.
[Fn. 38] 
          There is ample evidence the plaintiff suffered injury,
indeed an obvious personal injury.  The closeness of the connection
between Lynden's conduct and the injury suffered by plaintiff is an
issue of some dispute. Lynden argues that there is very little
connection between its conduct and plaintiff's injury, pointing out
that it had no knowledge or control over where or how Walker
attempted to unload the pipe saddles.  However, Walker presented
evidence at trial showing that loading pipe saddles without pallets
was unreasonably dangerous, and that the absence of pallets caused
him to attempt to unload the saddles by hand.  This is also a fact-
specific controversy relevant to the question of negligence and
causation.  For purposes of the D.S.W. inquiry, it is enough to
observe that if a product is loaded in a way that it cannot be
safely unloaded there generally will be a close connection between
the act of loading and injuries suffered while unloading.
          As to moral blame, negligence resulting in a risk of
personal injury is regarded as significantly blameworthy in ways
that negligence resulting only in emotional distress or economic
loss is not. [Fn. 39]  The risk in cases of this nature is personal
          The policy of preventing future harm is served by
imposing on suppliers a duty to exercise reasonable care when
loading material to ensure the material may be safely unloaded. 
Lynden argues that permitting liability in this case would be
tantamount to a legal finding of a duty to band pipe saddles to
pallets.  Lynden mischaracterizes the duty, however.  Whether
reasonable care required banding the saddles to pallets in Lynden's
case was a factual determination that was for the jury to make.
[Fn. 40] 
          Imposing a duty of reasonable care on Lynden in the
circumstances of this case would not unduly burden the community. 
Our law generally allows those who suffer personal injury caused by
the negligent acts of others to shift their losses to the negligent
actors.  Permitting litigation having a loss-shifting objective in
cases of this nature does not threaten to flood the courts with
numerous cases of a heretofore unrecognized type.  Nor is there the
possibility that recognizing a duty to safely load will conflict
with the achievement of other important social policies.
          Last, there is no evidence in the record regarding the
availability of insurance for the risk involved, but it is
reasonable to assume that a party like Lynden is able to purchase
liability insurance to cover risks like that involved here.
          In sum, the D.S.W. factors support the trial court's
finding that Lynden had a duty of care to load materials in a way
that permitted them to be safely unloaded.  What the duty of care
required under the circumstances, and whether Lynden breached that
duty, were questions properly presented to the trial jury. [Fn. 41] 

          2.   There was a genuine issue of fact whether Lynden
had fulfilled its duty to load the pipe saddles so that they could
be safely unloaded.

          Lynden argues that it was entitled to summary judgment
because there was no factual dispute as to whether the pipe saddles
could be safely unloaded.  However, one of the central factual
disputes in the case was whether the pipe saddles could be safely
unloaded.  Some evidence shows the pipe saddles could have been
safely unloaded, but there was also contrary evidence, and thus a
factual dispute. 
          Because the trial court correctly found that Lynden had
a duty of care, and because there was a factual dispute as to
whether the pipe saddles could have been safely unloaded, the trial
court's denial of summary judgment is affirmed.  For the same
reasons, the trial court's denial of JNOV must also be affirmed. 
     B.   The Superior Court Did Not Commit Reversible Error in Its
Jury Instructions.

          1.   Instruction No. 18 was neither an erroneous
statement of law nor confusing.

          Lynden argues that the trial court erred in submitting
Jury Instruction No. 18 [Fn. 42] to the jury.  Lynden's primary
argument is that the instruction incorrectly asserts that Lynden
had a duty to load the saddles so that they could be safely
unloaded.  Because Lynden does have such a duty, we reject Lynden's
          Lynden's second argument is that the instruction is
confusing.  Lynden claims that "the instruction obviously invited
the jury to assume that Lynden had a duty to load the saddles in a
manner that can be unloaded safely by Walker on the morning in
question, with the equipment he had at hand, and in the manner
attempted by Walker."  However, the instruction said only that "a
supplier of parts has a legal duty . . . to load materials in a
manner that can be unloaded safely."  It does not instruct the jury
that Lynden had to anticipate who the unloader would be, what
equipment might be available, or how the unloading would be
          In addition, Instruction No. 23 instructed the jury that
Lynden had a duty "to exercise reasonable care in loading the
material in a manner so that it can be unloaded by a properly
equipped and reasonably qualified unloader without creating an
unreasonable risk of injury to the unloader."  Instruction No. 17
directed the jury to consider whether Walker used reasonable care
under the circumstances, requiring the jury to consider the manner
in which Walker attempted to unload the pipes.  Instruction No. 3
directed the jury to consider all of the instructions together and
as a whole.  Instruction No. 18, along with Instruction Nos. 3, 17
and 23, considered collectively, correctly described the relevant
legal standards.  
          Jury instructions are to be analyzed as a whole, rather
than in isolation. [Fn. 43]  In reviewing jury instructions, the
relevant inquiry is whether the instructions inform the jury of the
applicable law. [Fn. 44]  Because the jury instructions, taken as
a whole correctly describe Lynden's duty, we reject Lynden's claim
that the submission of Instruction No. 18 to the jury was
reversible error. 
          2.   Instruction No. 19 had an evidentiary basis, and
was not so confusing that it affected the jury's verdict.

          Lynden's arguments against the court's submission of
Instruction No. 19 [Fn. 45] to the jury are twofold; the first is
that the instruction is circular, the second is that there was no
evidence presented to support the instruction.  Lynden's criticism
of Instruction No. 19 has some merit, because the instruction is
circular.  The instruction defines an unreasonable risk of harm as
existing where an act involves an unreasonable risk of harm. 
Lynden points out that using a phrase to define itself is not
useful.  Instruction No. 23 cures the circularity of Instruction
No. 19, however, as it instructs the jurors that 
          [t]he loader of pipeline construction material
has a duty to exercise reasonable care in loading the material in
a manner so that it can be unloaded by a properly equipped and
reasonably qualified unloader without creating an unreasonable risk
of injury to the unloader.  A breach of this duty is negligence.  
But Lynden does not argue that the circular definition made it
impossible for jurors to understand the concept of "unreasonable
risk of harm."  Instead, Lynden argues that the instruction imposed
"another duty on Lynden," arguing that "[t]here is no evidence that
Lynden should have foreseen that loading single saddles on the
truck would create an unreasonable risk of harm."  But as discussed
earlier there was evidence that loose pipe saddles created an
unreasonable risk of harm, and that Lynden had been warned about
this practice.  Lynden's argument must therefore fail, because the
defect in the instruction caused no harm and because there was an
evidentiary basis for the instruction. [Fn. 46]
     C.   The Superior Court Did Not Abuse Its Discretion By
Permitting Michael Burleson to Offer Expert Testimony.
          Admission of expert witness testimony is reviewed for
abuse of discretion. [Fn. 47]  A decision to allow an expert
witness to testify will be overturned where the trial court
misapprehends the rule regarding the level of skill required to
qualify an expert as such. [Fn. 48]  Expert testimony is admissible
where it will assist the trier of fact. [Fn. 49] 
          Lynden claims that the trial court abused its discretion
when it permitted Michael Burleson to testify as an expert for
Walker.  According to Lynden, Burleson lacked the expertise to help
the jury understand the standard of care relevant to this case.
          Lynden takes issue with Burleson's testimony that
          [i]t was my opinion that Lynden failed to
provide adequate, safe packaging of this material being shipped,
the materials being handled and the materials being sent through
and but for their failure to provide safe packaging by palletizing
this equipment, this accident wouldn't have happened.

Lynden claims that Burleson did not have adequate expertise
concerning loading heavy items on trucks in conditions like those
prevailing on the North Slope to offer testimony which would
provide appreciable help to the jury.  The facts Lynden advances in
support of its argument range from Burleson's unfamiliarity with
North Slope conditions to his failure to perform any experiments
specific to this case.  All of Lynden's arguments against the
applicability of Burleson's experience are relevant, but only as to
the weight of his testimony, not to its admissibility. [Fn. 50]  
          Burleson testified on the topics of industrial safety and
human factors, areas in which he has considerable expertise. 
Burleson has a degree in industrial engineering.  He is a member of
several professional organizations relevant to industrial safety
and human factors.  He has expertise in the field of industrial
safety.  Burleson has researched and investigated industrial
accidents, including accidents involving forklifts. 
          That Burleson has not been to the North Slope or has not
conducted experiments specific to the accident in this case does
not disqualify him as an expert, and does not render the trial
court's decision to permit his testimony an abuse of discretion.
Lynden had an opportunity to cross-examine Burleson at trial, which
was the appropriate way for Lynden to challenge the reliability of
Burleson's testimony. [Fn. 51]  Moreover, Lynden's own experts had
similar deficiencies in their qualifications.  We therefore find
that the trial court's admission of Burleson's testimony was not an
abuse of discretion.
     D.   The Award of Future Medical Expenses Lacked a Sufficient
Evidentiary Basis.

          Lynden asks that the jury's award of future medical
expenses be reversed, arguing that "there was precious little
evidence of any such expenses, and [that] there was no evidence
with which the jury could determine any such expense."  Directed
verdicts on future medical expenses, as on other subjects, are
reviewed to determine whether the evidence, viewed in a light most
favorable to the non-moving party, supports the verdict. [Fn. 52] 
Although Walker presented enough evidence to prove a reasonable
probability of future medical expense, [Fn. 53] we conclude that he
failed to give the jury sufficient information to estimate
reasonably the amount of his likely future expenses. 
          A party seeking damages for future medical expenses bears
the burden of proving damages. [Fn. 54]  The fact of damages must
be proven by a preponderance of the evidence. [Fn. 55]  The amount
of damages needs to be proven only to such a degree that the finder
of fact can make a reasonable estimate. [Fn. 56]
          Dr. Richard Cobden testified that Walker would need more
surgery on the ankle, that he would have pain for the rest of his
life, and that he will have future complications from his injury. 
But Dr. Cobden testified that Walker would only need one additional
surgery.  Except as to that surgery, Dr. Cobden did not testify
that Walker would probably require future medical attention.  For
example, he testified that there was a fifty percent chance Walker
would require antibiotics for the rest of his life.  He testified
that there was a risk of future arthritis.  He testified that
Walker's ankle would break more easily than before the injury, but
not that it would probably break. 
          Lynden argues that Walker therefore failed to demonstrate
a reasonable probability that he would have future medical
expenses, except as to antibiotics and occasional pain medication,
and except for the one surgery anticipated by Dr. Cobden.  But a
jury could have considered all of the possible complications
described by Dr. Cobden and decided that Walker would incur
significant future medical expenses.  Because reasonable persons
could differ in their judgments whether Walker will require future
medical treatment, we will not overturn the trial court's denial of
Lynden's motion for a directed verdict. [Fn. 57]
          Lynden asserts that even if Walker had proved that he
would incur future medical expenses by a preponderance of the
evidence, he failed to give the jury data upon which to make a
reasonable estimate of Walker's future medical costs.  The
proponent of a damage award for future medical expenses must give
the fact finder a means by which to "reasonably estimate" the
amount of such damages. [Fn. 58]  In support of its contention,
Lynden argues that the only future medical expenses Walker proved
to a reasonable probability were antibiotic and pain medication,
and monitoring for infection. [Fn. 59]  Lynden then argues that,
based on what was reasonably shown, the award of $200,000 was
          In Sherbahn v. Kerkove, we upheld a $15,000 award of
future damages for medical expenses. [Fn. 60]  In that case, the
plaintiff offered expert testimony that he would require trigger-
point injection therapy, with a potential cost of $8,000-$15,000.
[Fn. 61]  Because a plaintiff need only present "some data . . .
upon which [the jury] might reasonably estimate the amount" of
future medical expenses, we found that the award was supported by
the evidence. [Fn. 62]
          By contrast, Walker did not present the jury with
evidence, even in the form of estimates, of the costs of the
various future medical procedures he would require. Except for
$3,376.82 of past expenses for transportation and prescription
drugs, Walker provided no data on the cost of his potential future
medical costs.  He presented the court with a lump sum of
$92,757.56 of past medical expenses, but did not break down the
lump sum to demonstrate what various procedures or therapies cost. 
The jury therefore did not have adequate information before it on
which it could have based an award of future medical costs, except
for prescription drugs.  Even though Dr. Cobden testified that
Walker would require at least one more surgery, he did not estimate
the cost of that procedure.  We therefore vacate the award of
future medical expenses and order a remittitur. [Fn. 63] 
          The superior court did not err in denying Lynden's motion
for summary judgment and JNOV because Lynden had a duty to load its
materials in a way that permitted them to be safely unloaded, and
because there was a material dispute of fact whether Lynden
breached its duty.  The superior court did not err in permitting
Burleson to testify as an expert.  The jury instructions were not
a misstatement of the law and were not so confusing that they
failed to correctly explain the law to the jury.  There was
evidence supporting the jury's decision that Walker would incur
future medical expenses, but there was not sufficient evidence in
front of the jury to permit them to calculate damages.  We
therefore AFFIRM the judgment in all respects, but VACATE the
damages award for future medical expenses and order a remittitur on
that portion of the damages award.


Footnote 1:

     See United Airlines, Inc. v. Good Taste, Inc., 982 P.2d 1259,
1262 (Alaska 1999).

Footnote 2:

     See id.

Footnote 3:

     See id.

Footnote 4:

     See Barrett v. Era Aviation, Inc., 996 P.2d 101, 103 (Alaska
2000); see also VECO, Inc. v. Rosebrock, 970 P.2d 906, 911 n.11
(Alaska 1999).

Footnote 5:

     Barrett, 996 P.2d at 105.

Footnote 6:

     See State v. Coon, 974 P.2d 386, 398 (Alaska 1999).

Footnote 7:

     See Buoy v. Era Helicopters, Inc., 771 P.2d 439, 442 (Alaska

Footnote 8:

     Alaska Tae Woong Venture, Inc. v. Westward Seafoods, Inc., 963
P.2d 1055, 1062 (Alaska 1998) (quoting Ben Lomond, Inc. v.
Schwartz, 915 P.2d 632, 635 (Alaska 1996)).

Footnote 9:

     P.G. v. State, Dep't of Health and Human Servs., 4 P.3d 326,
331 (Alaska 2000) (quoting M.A. v. United States, 951 P.2d 851, 854
& n.6 (Alaska 1998)).

Footnote 10:

     Guerrero v. Alaska Housing Finance Corp., 6 P.3d 250, 257
(Alaska 2000) (quoting Arctic Tug & Barge, Inc. v. Raleigh, Schwarz
& Powell, 956 P.2d 1199, 1203 (Alaska 1998)).

Footnote 11:

     Restatement (Second) of Torts sec. 392, cmt. d (1965). 

Footnote 12:


Footnote 13:


Footnote 14:

     See Jablownski v. United States, 230 F. Supp. 740 (E.D. Pa.
1964); Yandell v. National Fireproofing Corp., 79 S.E.2d 223, 226
(N.C. 1953); Wintersteen v. National Cooperage & Woodenware Co.,
197 N.E. 578 (Ill. 1935); see also 13 Am. Jur. 2d sec. 320 (1964)
(shipper who loads shipment under duty of care to load such that
shipment can be safely unloaded); cf. Elk Corp. of Arkansas v.
Jackson, 725 S.W.2d 829, 833 (Ark. 1987) (company loading goods
onto tractor trailer has duty to load so that truck can be operated

Footnote 15:

     230 F. Supp. 740, 741 (E.D. Pa. 1964).

Footnote 16:

     See id. at 742.

Footnote 17:

     197 N.E. 578, 582 (Ill. 1935).

Footnote 18:


Footnote 19:

     Restatement (Second) of Torts sec. 4 (1965).

Footnote 20:

     See Restatement (Third) of Torts sec. 6, cmt. d, and sec. 7
Draft No. 1, March 28, 2001).

Footnote 21:

     See Restatement (Third) of Torts, supra, sec. 7.

Footnote 22:

     628 P.2d 554, 555 (Alaska 1981).

Footnote 23:

     See id.; see also Schumacher v. City & Borough of Yakutat, 946
P.2d 1255, 1257 (Alaska 1997).

Footnote 24:

     131 Cal. Rptr. 854, 860 (Cal. App. 1976).

Footnote 25:


Footnote 26:

     See 628 P.2d at 556.

Footnote 27:

     964 P.2d 445 (Alaska 1998).

Footnote 28:

     Id. at 450-52.

Footnote 29:

     958 P.2d 1106 (Alaska 1998).

Footnote 30:

     946 P.2d 1255 (Alaska 1997).

Footnote 31:

     See Kooly, 958 P.2d at 1106; Schumacher, 946 P.2d at 1257.

Footnote 32:

     Kooly, 958 P.2d at 1109.

Footnote 33:

     908 P.2d 1013 (Alaska 1995).

Footnote 34:

     See id. at 1016-17.

Footnote 35:

     659 P.2d 1236 (Alaska 1983).

Footnote 36:

     See id. at 1238.

Footnote 37:

     Section 6, comment (d) of the Restatement (Third) of Torts
(Tent. Draft No. 1, March 28, 2001) draws a pointed distinction
between physical harm on the one hand and emotional distress and
economic loss on the other:  

          [J]ust as the general standard of liability
stated in this section is limited to physical harm, the general
duty of reasonable care is affirmed only in cases involving
physical harm.  In cases involving negligence that causes emotional
distress or economic loss, there is no rule of liability that is as
general as this section's physical-harm rule.  Accordingly, in such
cases courts need to consider whether there is any particular rule
of liability that is applicable.  In providing this consideration,
courts frequently employ the terminology of duty in explaining
whether liability is or is not available.

Footnote 38:

     See P.G. v. State, Dep't of Health and Human Servs., 4 P.3d
326, 332-33 (Alaska 2000) (explaining distinction between
foreseeability in determining duty and in establishing causation
and negligence).

Footnote 39:

     See Mesiar, 964 P.2d at 451.

Footnote 40:

     See Maddox v. River & Sea Marine, Inc., 925 P.2d 1033, 1035-36
(Alaska 1996) (stating that, in general, summary judgment is not
appropriate to negligence cases, particularly where there is a
factual dispute regarding the extent of a duty). 

Footnote 41:

     See id.; see also Bolieu v. Sisters of Providence in Wash.,
953 P.2d 1233, 1241 (Alaska 1998) ("[F]act-intensive inquiries
pertain to the issues of breach, causation, and damages, not the
threshold legal question of whether a duty exists.").

Footnote 42:

     Instruction No. 18 provides:

               The law requires that a finding of
negligence be based upon the existence of a legal duty on the part
of a defendant or party and the unreasonable breach of that duty. 
In this case you will consider whether there was any negligence on
the part of Lynden Logistics, Inc.  With respect to the duty of
Lynden Logistics, Inc., you are instructed that a supplier of parts
has a legal duty, independent of the duty of the driver, to load
materials in a manner that they can be unloaded safely.  Whether
that duty was breached is for you to determine. 

Footnote 43:

     See Guertin v. State, 854 P.2d 1130, 1133 (Alaska App. 1993).

Footnote 44:

     See Cummings v. Sea Lion Corp., 924 P.2d 1011, 1019 n.11
(Alaska 1996).

Footnote 45:

     Instruction No. 19 provides:

               An act is negligent if the actor
realizes, or should realize, that it is likely to affect the
conduct of another in such a way as to create an unreasonable risk
of harm to another.  An unreasonable risk of harm exists when a
particular act or type of act involves an unreasonable risk of
harm, even when carefully done.

               A person may also act negligently if he
          creates a situation which is likely to cause
another to do a particular act in a particular manner which creates
an unreasonable risk of harm, even if the third person's act may be
conducted negligently or without adequate preparation. 

Footnote 46:

     See id. (stating that jury instructions will be upheld if the
instructions, read as a whole, adequately inform the jury of the
relevant law); see also Nautilus Marine Enters., Inc. v. Valdez
Fisheries Dev. Ass'n, 943 P.2d 1201, 1204 n.7 (Alaska 1997)
(harmless error in jury instructions does not warrant reversal).

Footnote 47:

     See State v. Coon, 974 P.2d 386, 398 (Alaska 1999).

Footnote 48:

     See Lewis v. State, 469 P.2d 689, 695 (Alaska 1970).

Footnote 49:

     See Alaska R. Evid. 702(a); see also Coon, 974 P.2d at 393
("[E]xpert opinion evidence is admissible if the trial court . . .
determines that . . . the trier of fact will be assisted . . . .").

Footnote 50:

     See Lewis, 469 P.2d at 693-94 (holding that reasonable contact
and requisite intelligence with the subject is sufficient to admit
expert testimony).

Footnote 51:

     See id. at 696.

Footnote 52:

     See Sherbahn v. Kerkove, 987 P.2d 195, 198 (Alaska 1999).

Footnote 53:

     See Maddocks v. Bennett, 456 P.2d 453, 457-58 (Alaska 1969)
(requiring that medical damages be proved to a reasonable
probability); see also Blumenshine v. Baptiste, 869 P.2d 470, 473
(Alaska 1994). 

Footnote 54:

     See Maddocks, 456 P.2d at 457-58.

Footnote 55:

     See Pluid v. B.K., 948 P.2d 981, 984 (Alaska 1997).

Footnote 56:

     See id.

Footnote 57:

     See Sherbahn, 987 P.2d at 198 ("If there is room for diversity
of opinion among reasonable people the question is one for the

Footnote 58:

     See Pluid, 948 P.2d at 984; see also City of Fairbanks v.
Nesbett, 432 P.2d 607, 616 (Alaska 1967) (award of damages may not
be speculative or conjectural; jury must have reasonable basis upon
which to assess damages by a fair degree of certainty).

Footnote 59:

     In addition to the care described above, Dr. Cobden testified
that Walker would need at least one additional surgery.  That
testimony is sufficient to support a jury's finding that there is
a reasonable probability that Walker would undergo at least one

Footnote 60:

     987 P.2d at 199.

Footnote 61:

     See id.

Footnote 62:

     Id. at 199-200 (quoting Blumenshine, 869 P.2d at 473).

Footnote 63:

     The superior court should determine the maximum amount of the
award for future medical expenses that the evidence supports
concerning prescription drug costs, and require the plaintiff to
choose whether to accept a remittitur of that amount or to have a
new trial on the issue of future medical damages.