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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hogg v. Raven Contractors, Inc. (05/05/2006) sp-6009
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DONALD W. HOGG, | ) |
| ) Supreme Court No. S- 11874 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3KN-03-00361 CI |
| ) | |
| RAVEN CONTRACTORS, INC., | ) O P I N I O N |
| an Alaska Corporation, and KENAI | ) |
| PENINSULA BOROUGH, | ) No. 6009 - May 5, 2006 |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: A. Lee Petersen, Petersen
Professional Corp., Willow, for Appellant.
Patrick J. McKay, Law Offices of Patrick J.
McKay, Anchorage, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
This appeal arises from the superior courts denial of a
motion for a new trial. The verdict at issue arose from a
negligence action that Donald Hogg brought against Raven
Contractors and Kenai Peninsula Borough after Hogg fell into a
trash container at the Kenai Transfer Facility. Although the
jury found that Raven, the operator of the facility, had been
negligent, it determined that Ravens negligence was not a legal
cause of Hoggs injury. Hoggs subsequent motion for a new trial
was denied, and he claims on appeal that the trial court did not
apply the correct standard when reviewing the jurys verdict. But
the trial courts decision was consistent with an application of
the correct legal standard. Furthermore, we apply a
significantly more deferential standard of review to a superior
courts denial of a new trial than the superior court applies to a
jury verdict, and the superior courts decision complies with our
standard. For these reasons, we affirm the judgment of the
superior court.
II. FACTS AND PROCEEDINGS
A. Background
The Kenai Transfer Facility contains large metal docks
into which members of the public can unload trash. The inner
walls of each dock form a chute, sloping downward towards an
opening, under which sits a container to collect the trash. On
the outside opening, where visitors unload trash, the dock is
blocked by a two-foot-high concrete barrier, with a thin ledge on
top. There is a horizontal metal pipe above the barrier, with
both ends bent at right angles and inserted into sockets on the
ledge. A photo of the dock taken September 19, 2002 shows a sign
in plain view warning members of the public not to stand on the
ledge, and Hogg concedes that such a sign had been posted at the
time of his visit.
On September 1, 2002, Hogg was unloading trash from his
pickup at one of the docks. Hogg claims that he backed his truck
up to the ledge, got into the box of his pickup and unloaded [the
trash] and then stepped onto the ledge and put his hand on the
bar. He alleges that the bar swung away when he put his weight
on it because one end was not in the socket, causing him to lose
his balance and fall into the trash chute. Raven and Kenai,
however, assert that Hogg pulled his truck so far toward the dock
that when he stepped out of the bed of the truck, he was actually
stepping over the ledge and into the chute. They also claim that
neither Hogg nor the single Raven employee to witness the
incident saw the pipe loose before the incident. Neither
appellee disputes that the fall rendered Hogg unconscious and
caused injuries that required hospitalization.1
B. Evidence Presented at Trial
The only witness to the accident other than Hogg
himself was Matt Neal, a Raven employee who was standing on a
nearby catwalk at the time of the accident. Neal gave an account
of the accident in a report written for his employer on September
2:
Mr. Hogg had just finished emptying his
garbage at the site. As he climbed from the
back of his truck, he stepped on the bay
ledge, using the rail for support. The
problem occur[r]ed because the last person
disposing in that area had unhooked the rail;
instead of rehooking it[,] however, they
swung it back so that it appeared closed.
Consequently, Mr. Hogg fell into the trailer.
I was on the catwalk when the accident
occur[r]ed. When he hit the bottom he seemed
unconscious, so I immediately called 911.
When I returned he had regained consciousness
and was lucid and alert, but could not stand.
Paramedics arrived minutes later and removed
him from the trailer doors.
Neal testified at trial that he had not seen the pipe taken out
of the socket that day, either by Hogg or by other members of the
public, and that he had assumed that it was loose when writing
his accident report. Although he did not recall specifically, he
claimed that he thought Hogg climbed into the bed of the truck by
stepp[ing] in on the bumper and into his truck.
Hoggs account at trial differed slightly from Neals in
that he claimed to have taken a more circuitous route out of the
pickup truck bed:
I backed up to the stall . . . . Backed
right up against the facility with my bumper
against it. I got out of my pickup, went
under the rail in the next bay, went around
the pillar, let my tailgate down, went in my
pickup, emptied the trash. Got out of the
pickup, walked over to where the pole is,
bent down, reached down, and with my left
hand raised the tailgate.
As I started to stand up, I reached up and
caught the rail with my left hand. The rail
came loose. The only thing I remember after
that point was [that] I heard a bang, and the
next thing the medics were taking me out of
the dumpster.
But Hogg admitted that his recollection of how he got out of the
truck might be inaccurate, noting that the accident resulted in a
serious head injury. On cross-examination, Hogg conceded that
the tailgate of his truck covered the entire ledge, and that he
actually stepped beyond the ledge underneath the pole there
(which seems to be a reference to the rail) and onto the slope
surface where he squatted to raise the tailgate of his truck
before falling.
The court also took testimony about the design of the
facility, with Hoggs expert arguing that it should have been
designed with guardrails in front of the trash docks, and an
engineer employed by Kenai claiming that a design with guardrails
would have been ineffective because different-sized guardrails
would be required for different sizes of trash and unloading
vehicles. The Kenai engineer, who was involved . . . as a
project manager throughout design and construction, pointed out
that the facility met the Uniform Building Code standards for a
docking facility in effect at the time of construction, and that
these standards did not require a guardrail at all. He also
maintained that warning signs were installed prior to [the
facilitys] opening and upon completion of construction.
C. Jury Instructions and Verdict
Before the case was submitted for deliberation, the
court instructed the jury that, in order to find that Hogg was
entitled to recover, the jury had to determine (1) that the
defendants were negligent; (2) that the defendants negligence was
a legal cause of the plaintiffs harm; and (3) that Hogg was
actually harmed. The court defined negligence as the failure to
use . . . that amount of care that a reasonably prudent person
would use under similar circumstances. It also instructed the
jury about the meaning of legal cause:
A legal cause of harm is an act or a failure
to act which is a substantial factor in
bringing about the harm. An act or failure
to act is a substantial factor in bringing
about harm if it is more likely true than not
true that:
1. the act or failure to act was so
important in bringing about the
harm that a reasonable person would
regard it as a cause and attach
responsibility to it; and
2. the harm would not have occurred
but for the act or failure to act.
After deliberating, the jury issued a special verdict
finding that Raven had been negligent, but that its negligence
had not been a legal cause of Hoggs injury. It found that Kenai
had not been negligent.
D. Hoggs Motion for a New Trial
Hogg subsequently moved for a new trial, claiming that
the jurys verdict was inconsistent with the courts instructions
on negligence and causation. His motion pointed out that the
judge is free to weigh the evidence for himself . . . and may set
aside a verdict even though there is substantial evidence to
support it, and noted that [t]he judge is not required to view
the evidence most favorably to the verdict winner. The motion
also noted that the appellate court view[s] the evidence in the
light most favorable to the non-moving party2 when reviewing a
trial courts denial of a new trial. In support of the jurys
verdict, Raven argued, among other things, that the evidence
presented at trial could have permitted the jury to find Raven
negligent in ways that did not cause the accident. For example,
Raven argued that the jury could have found that Raven should
have moved some of the warning signs to more obvious places but
that this would have made no difference since Mr. Hogg did not
pay any attention to the signs. The trial court denied Hoggs
motion.
III. DISCUSSION
A. Standard of Review
When determining whether to grant a motion for a new
trial,
a trial court may set aside a verdict and
order a new trial in the interest of justice
if the verdict is against the weight of the
evidence. In deciding a motion for a new
trial on this basis, the court must use its
discretion and independently weigh the
evidence. A court may set aside a verdict as
being against the weight of the evidence even
when there is substantial evidence to support
it. The decision is a matter for the trial
courts discretion.[3]
None of our cases requires the trial court to view the evidence
in the light most favorable to the non-moving party.
We apply a different standard when reviewing a trial
courts decision to deny a new trial after a jury verdict.
Although the question [w]hether the trial court applied the
correct legal standard is a question of law that we review de
novo,4 our review of the trial courts decision itself is
considerably more deferential. Because [t]he question . . .
whether to grant or refuse a new trial rests in the sound
discretion of the trial court . . . we view the evidence in the
light most favorable to the non-moving party.5 We will affirm a
trial courts decision to deny a new trial if there is an
evidentiary basis for the jurys decision,6 and will only reverse
a decision to deny a new trial if the evidence supporting the
verdict was so completely lacking or slight and unconvincing as
to make the verdict plainly unreasonable and unjust. 7
B. The Trial Court Did Not Err in Denying the Motion for a
New Trial.
Hogg argues that the jurys findings that Raven was
negligent but that Ravens negligence was not the legal cause of
Hoggs fall requires one of the following assumptions: (1) that
the loose metal pipe was not a cause of Hoggs fall; (2) that the
fall was not a legal cause of the damages suffered by Hogg; or
(3) that Ravens negligence was not the legal cause of the metal
pipes being loose. But at oral argument of this appeal, Hoggs
counsel pointed out that he had argued a number of negligence
theories to the jury, including inadequate warning signage
regarding the pipe and the danger of stepping on the ledge, the
alleged failure of the nearby Raven employee to give a verbal
warning to Hogg, and the alleged failure of the employee to
secure the pipe.
The jurys verdict, then, need not have been based on
one of the three assumptions listed by Hogg. Rather, the jury
could have found Raven to be negligent on one of the other
theories argued by Hogg and excluded this negligence as a
potential cause of the accident. For example, some signs warning
the public not to climb onto the ledge were posted at the
facility before Hoggs fall. The jury could have determined that
although the signs should have been bolder or placed in a
different location, Hogg saw them and stepped onto the ledge
anyway, as he had done before. Further, one of Ravens main
theories as to how the accident happened was that the pipe was in
both of its sockets prior to the accident but was dislodged by
Hoggs action when he ducked under it or when he grabbed for it
while he was crouching on the downward sloping surface beyond the
pipe. Thus, the first assumption on which Hoggs argument is
based that the pipe was loose prior to Hoggs arrival on the
scene may not have been accepted by the jury.
Hogg argues that this courts decision in Grant v.
Stoyer requires a reversal of the trial courts order because
where negligence and causation of compensable physical injury are
conceded or proved, and where evidence of at least some pain and
suffering is substantial and uncontroverted, some damages must
ordinarily be awarded.8 In Grant, we reversed a trial courts
decision to deny a new trial where a jury determined that the
defendant in a car accident had been negligent, but that the
accident was not the legal cause of the defendants injuries.9
But in Grant, the defendant conceded negligence, and the evidence
clearly established that the defendants negligent conduct had
caused the accident.10 We reversed the trial courts decision
[b]ecause it [was] beyond dispute that Stoyer negligently caused
substantial physical injury to Grant.11 In the present case, the
evidence convinced the jury that Raven was negligent, and clearly
establishes that Hogg suffered serious physical injuries, but it
does not necessarily establish that Ravens negligence was the
cause of Hoggs injuries. Thus, the trial courts decision to deny
a new trial is consistent with an independent review of the
evidence and does not violate the rule announced by this court in
Grant.
Our own standard of review is significantly more
deferential than the standard that the trial court should apply
to a motion for a new trial. In this case, we do not believe
that the evidence supporting the verdict was completely lacking
or slight and unconvincing.12 Moreover, the decision whether to
grant a new trial was within the discretion of the trial court.
Unlike this court, for which testimony is necessarily but words
on a page, the trial court had the opportunity to hear the
witnesses testify in person. Similarly, the trial court could
weigh the evidence in the context of its credibility
determinations about witnesses. Our deferential standard of
review13 takes this into account. For this reason, we hold that
there was an evidentiary basis for the jurys decision.14
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment
of the trial court.
_______________________________
1 But Raven and Kenai do dispute the extent of the
injuries attributable to the accident, alleging that some of the
ailments for which Hogg received treatment were pre-existing
problems.
2 Hogg quoted our opinion in Pugliese v. Perdue, 988 P.2d
577, 581 (Alaska 1999).
3 Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1176 (Alaska
2002) (footnotes omitted) (quoting 11 Charles Alan Wright et al.,
Federal Practice and Procedure 2806, at 65 (2d ed. 1995)); see
also Pugliese, 988 P.2d at 581 (The decision to grant or deny a
new trial is within the trial courts discretion.).
4 Kava, 48 P.3d at 1173.
5 Id; see also Richey v. Oen, 824 P.2d 1371, 1375 (Alaska
1992) (noting that we are required to view the evidence in the
light most favorable to the non-moving party).
6 Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).
7 Grant v. Stoyer, 10 P.3d 594, 596 (Alaska 2000)
(quoting Pugliese, 988 P.2d at 581).
8 10 P.3d at 598; see also Pugliese, 988 P.2d at 583
(remanding for a new trial where the jury declined to award
damages to a plaintiff who had been negligently hit by a pickup
truck).
9 10 P.3d at 596-99.
10 Id. at 595-96.
11 Id. at 599; see also id. (noting that Stoyers own
experts agreed that Stoyer had injured Grant and that [t]he trial
evidence establishes without doubt that Stoyers negligence caused
a serious and violent accident that injured Grant); Pugliese, 988
P.2d at 581 (remanding for a new trial because [t]he undisputed
facts establish that Perdue negligently drove his pickup truck
into Pugliese, a collision involving direct bodily impact).
12 Grant, 10 P.3d at 596 (quoting Pugliese, 988 P.2d at
581).
13 See Kava, 48 P.3d at 1173.
14 Glamann, 29 P.3d at 259.
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