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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept of Transportation & Public Facilities v. Miller (10/06/2006) sp-6060

State, Dept of Transportation & Public Facilities v. Miller (10/06/2006) sp-6060, 145 P3d 521

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA, )
DEPARTMENT OF ) Supreme Court No. S- 11946
TRANSPORTATION AND )
PUBLIC FACILITIES, ) Superior Court No.
) 4BE-01-00445 CI
Appellant, )
) O P I N I O N
v. )
) No. 6060 - October 6, 2006
LANCE MILLER and VELDA )
MILLER, for themselves and on )
behalf of MIRANDA MILLER and )
LANCE MILLER, JR., minors, and )
ANNMARIE MILLER, )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of  Alaska, Fourth Judicial District, Bethel,
          Leonard R. Devaney III, Judge.

          Appearances:    David  H.  Knapp,   Assistant
          Attorney  General, Anchorage,  and  David  W.
          M rquez,   Attorney  General,   Juneau,   for
          Appellant.  Jim J. Valcarce, Cooke,  Roosa  &
          Valcarce,   LLC,  Bethel,  and   William   S.
          Cummings,  Ashburn & Mason, P.C.,  Anchorage,
          for Appellees.

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

          FABE, Justice.
I.   INTRODUCTION
          In  January  2001 Lance Miller was injured in  a  plane
crash  while  attempting  to land at  an  unattended  airport  in
Kipnuk.   He  brought  an action against  the  State  of  Alaska,
alleging  that  its  failure to warn  him  that  neither  of  the
airports  windsocks  was functioning constituted  negligence  and
seeking  damages on behalf of himself, his wife,  and  his  three
children  for his injuries, lost earning capacity,  and  loss  of
consortium.   A  jury awarded Miller $1,256,000 and  awarded  his
wife  $20,000.  The State appeals this judgment on four  grounds.
First,  it  claims that the superior court erred in  denying  the
State   a  continuance  when  information  potentially  affecting
Millers credibility and the measure of damages came to light  two
and  a  half  months before trial.  Second, it alleges  that  the
court  erred in its jury instructions on negligence.  Third,  the
State  claims  that  the court erred in permitting  the  jury  to
consider  Millers  lost  earning capacity.   Finally,  the  State
argues  that  the superior court erred by failing  to  grant  the
motion  for judgment notwithstanding the verdict (JNOV).  Because
we conclude that the superior court did not err in its rulings on
these issues, we affirm the judgment.
II.  FACTS AND PROCEEDINGS
     A.   Kipnuk Airport
          The  accident  at issue here occurred at a  State-owned
airport in the Native Village of Kipnuk.  The airport is open  to
the  public, including student pilots, and when it was  built  in
1981,  the  State installed a windsock at each end of the  2,160-
foot-long runway.1  The State aviation director testified that it
was  important  to  have windsocks at each end  because  you  can
easily  have a different wind condition 2,000 feet  away  .  .  .
[and] [t]he windsock will indicate what the wind direction and  .
.  .  velocity  is  only in the proximity right adjacent  to  the
windsock.   Anything thats hundreds of feet away . . .  could  be
different.
          The pole supporting the south windsock was broken in  a
snowmobile  accident a few years before the 2004  trial  in  this
case.   The  State issued a Notice to Airmen (NOTAM) in  November
2000,  stating  that  the south windsock was  damaged  [and]  not
functioning properly, but not providing any further details.   By
2001  the  sock was still stuck in the mud[,] . . . torn  and  in
disrepair.
          Although  the north windsock had not fallen over,  rust
at  the  base  of  the pole caused it to lean to  one  side.   In
addition,  the  bearings that allowed the north  sock  to  rotate
(indicating the direction of the wind) were worn out, and part of
the  sock  itself was missing.  Paul Kiunya, an Alaska Department
of Transportation and Public Facilities (DOTPF) worker in Kipnuk,
testified that he used wooden boards to prop the sock up but that
the  boards  would  rot quickly.  He maintained  that  he  always
report[ed]  everything he knew about the socks condition  to  his
superiors.  According to a Kipnuk resident who could see the sock
from his home, the sock did not accurately indicate the direction
of  the  wind.   The  States  NOTAM did  not  mention  the  north
windsock.
     B.   The Accident
          On  January 23, 2001, Miller flew his Cessna  172  from
          Bethel to Kipnuk to perform maintenance work for his employer,
the  Federal Aviation Administration (FAA).  His only  passenger,
Stan Hoffman, was a co-worker.  The trip had been delayed for  at
least two days due to a snowstorm at Kipnuk.  Although Miller had
flown  to this airport several times before, he had just recently
received his pilots license, and was prepared to turn back if the
wind  was powerful enough to make landing dangerous.  Relying  on
the  north  windsock, which was just l[y]ing limp[,] .  .  .  not
indicating a very strong wind, he decided to land.
          Miller  felt a strong crosswind as he was landing,  but
corrected  for it by crabbing the plane to keep the wings  level.
Although the plane touched down where he intended, the wind  blew
it  to  the  left  as soon as it made contact  with  the  runway.
Miller  was shocked at the strength of the wind that was  pushing
[the  plane] off the runway, and attempted to compensate for  it.
When  this  attempt failed, Miller decided to abort the  landing,
and  brought the plane to full throttle to take off  again.   But
the  plane continued to veer to the left and, when it rolled  off
the runway, it flipped over.
          Millers  shoulder harness was still buckled, suspending
him  in an upside-down seated position.  He had to use both hands
to  unbuckle  it, and when he did so, he landed on his  head  and
wrenched his neck.  After opening the door and crawling  out,  he
helped his uninjured passenger extricate himself.  He then walked
over to the north windsock:
          I  .  . . look[ed] at that windsock and I was
          dismayed at [its] condition . . . . I mean  .
          .  .  that  pole that was being bent.   Thats
          what  I  [saw].  I walked over . . . and  the
          windsock   [was]   sitting   there   froze[n]
          up  . . . . I mean, I was just shocked at the
          condition.
          
Miller  took  a commercial flight back to Bethel and  immediately
went to the emergency room.
     C.   Millers Injuries
          At  the  emergency  room, Miller complain[ed]  of  neck
pain, some light-headedness and [a] headache with a little bit of
nausea.   The doctor diagnosed cervical neck strain,  lower  back
strain, and a concussion.  Six days later, Miller saw Dr. Shannon
Radke,  a physician who had treated him several times before  the
accident.2   Radke testified that Miller complained of  worsening
pain  in  his  neck and lower back and that she  prescribed  pain
medication.
          Although  Miller  returned  to  work  in  March   2001,
performing light dut[ies] that did not involve flying or lifting,
he  continued  to  experience back pain.   His  economic  expert,
Francis  Gallela, testified that Miller was kept on  the  payroll
without  being  given significant duties:  He got transferred  to
Anchorage, they put him at a job, he had nothing to do here.   He
would  sit  [at]  his  desk with nothing  to  do.   According  to
Gallela,  that wore pretty heavily on him . . . [a]nd  it  became
clear to [Miller] that [the] FAA did not want him there since  he
couldnt  do  his job.  A December 2002 medical evaluation,  which
          measured his ability to engage in physical activities [such as] .
.   .   lifting,  carrying,  walking,  standing  [and]  different
activities involving reaching, found that Miller did not  qualify
for  a maintenance mechanic position with the FAA.  At that time,
Miller was still taking pain medication.
          In  January  2003 he saw Dr. Larry Levine,  a  physical
rehabilitation   specialist.   Dr.   Levine   performed   several
procedures,  including  a surgical procedure  called  provocative
discography,3  to identify the source of Millers back  pain,  and
diagnosed  him with a spinal disc herniation.  He testified  that
Miller might need further intervention in the future, including a
possible    disc   replacement.   Although  Dr.  Levine   imposed
restrictions  on  Millers  physical  activities   at   work,   he
maintained that, by September 2003, Miller was capable of working
in either sedentary or light positions.
          In  May 2004 Miller testified that his back hurt[]  all
the time, and [that] at times, it feels like [a] knife is getting
twisted in his back.  He also claimed to suffer depression and to
have contemplated suicide because of the effects of his injuries.
In addition to adversely affecting his relationship with his son,
Miller  maintained  that  his  pain  had  caused  him  to  become
dependent on medication:
          This is what my life has come to, bottles  of
          Oxycontin,   Oxycodone,   Neurocontin,   just
          endless  bottles of pills.  I  dont  want  to
          take this stuff, but this is what my life has
          come  to so I can get up, get out of my house
          and try to do something as best I can . . . .
          Theres  Prozac there so I dont  kill  myself.
          Heres  Oxycontin,  more Oxycontin.   I  mean,
          this  is all narcotics.  This is what my life
          has come to.
          
A  neurologist  who testified for Miller stated that  Miller  had
been  depressed  since  the time of the  accident  and  had  also
suffered dizziness, blurred vision, and sexual difficulties.   He
attributed  these ailments to the head trauma Miller  experienced
during the accident.
          The   States  experts,  however,  found  that   Millers
injuries  from the accident consisted primarily [of] . .  .  neck
strain,  or  what we would call cervical spine strain,  and  that
strain [was] resolved.  Their examination found that Miller had a
preexisting  degenerative condition in his  back,  and  that  his
range  of  motion  was  normal for someone  suffering  from  that
condition.   In  addition, they concluded that  Millers  physical
capacity  had  not been permanently reduced by the  accident  and
that  he would have been able to fly a small airplane after  July
2001.   One  of  the  States  experts,  Dr.  Stephen  Marble,   a
rehabilitation  specialist, described  Millers  regimen  of  pain
medication as excessive in light of his injuries from  the  plane
accident.
          Gallela,  an  economist, testified  that  the  accident
adversely  affected Millers earning capacity by relegat[ing]  him
to  light  or  medium  work . . . jobs.  Based  on  a  comparison
          between his previous wages and the average wages of the jobs he
could  now perform, Gallela determined that Millers lost  earning
capacity  amounted  to  $340,431.  He  calculated  several  other
categories  of  economic losses, including  retirement  benefits,
contributions   to  Millers  subsistence,  and  other   household
contributions.  His calculations, discussed in a letter dated May
27,  2003,  assumed that Miller would be leaving his FAA  job  to
seek employment suitable to his physical condition on January  1,
2004.  The total (including both expected losses and losses  that
Miller  would  already have sustained by the time of  trial)  was
over $1 million.
     D.   Additional Work in Late 2003
          In  August  2003 Miller left the FAA without leave  for
between three and four weeks to work for a private contractor  in
Eek.   But he did not mention this to Dr. Levine, the doctor  who
was  treating  him at the time.  Instead, he led  Dr.  Levine  to
believe  that  he was staying home.  The Eek contractor   Millers
brother-in-law   paid him roughly $16,000  to  work  as  a  barge
foreman  on  a  construction project.  The  parties  dispute  the
nature  and intensity of the work, with Miller claiming  that  he
generally  did  not do physically strenuous work, and  the  State
alleging  that he worked an average of thirteen hours a  day  for
three  weeks and went moose hunting after the job was  completed.
Miller testified that this job was not an accurate indication  of
his  future earning potential, as similar positions would  likely
not be available in the future.
          In  September 2003 the FAA took possession of  an  all-
terrain vehicle (ATV) that Miller had shipped to himself  at  the
Bethel  airport.   The  FAA,  which claimed  that  it  owned  the
vehicle,  began  investigating Millers apparent  theft  attempt.4
The  following  month, it demanded Millers  medical  records  and
threatened  him  with termination if he remained  absent  without
leave.  Miller resigned shortly thereafter.
     E.   Procedural History
          Although the trial was originally scheduled to begin in
August 2003, the State moved for a continuance when the assistant
attorney  general  assigned  to the case  was  called  to  active
military  duty.   The  superior court granted  this  motion  over
Millers   objection,  rescheduling  the  trial  for   May   2004.
Discovery,  which had already been conducted, was  not  reopened.
When Miller filed a cross-motion for summary judgment seven weeks
after  the courts deadline, and claimed that it was late  because
he  had  not  received certain evidence until  after  the  filing
deadline, the court declined to accept the motion.
          In  March 2004 a new assistant attorney general entered
an  appearance for the State.  This attorney sought  evidence  on
three  new  matters,  including  surgical  diagnostic  procedures
performed by Dr. Levine, Millers work for a private contractor in
August  and  September  2003, and the  circumstances  of  Millers
resignation from the FAA.  The State also sought discovery on  an
independent medical examination conducted in Seattle.  This  exam
was  included  in  Millers  workers compensation  records,  which
Miller had given the State permission to obtain in November 2002.
The State requested Millers records in January 2003, received  no
          response, and did not make a second request until February 2004.
It then received the records.
          On  April  27,  2004,  less than  a  month  before  the
scheduled  trial  date,  the State moved  for  a  continuance  to
conduct  additional  discovery on these issues.   Miller  opposed
this  motion, arguing that every discovery issue that  the  State
complains about has either been remedied, or is due to the States
failure[] to timely seek discovery long before now.
          The superior court denied the motion for a continuance,
noting that the new issues may be extremely relevant, but finding
that  the  State had not been diligent in following up  on  them.
But  when the State moved for reconsideration, the court  reached
the opposite result:
          In  denying the defendants[] [m]otion  for  a
          [c]ontinuance,  the  court  was  legitimately
          concerned  with preventing further  delay  of
          the  trial because the defendants had  failed
          to  be  diligent in their discovery  efforts.
          However, after review[,] . . . it is apparent
          that  the  defendants were diligent in  their
          efforts.
          
Asserting  that  obvious prejudice . . . [would]  result  to  the
defendants  if  they [were] forced to go to trial  without  being
able  to  fairly  present  these  issues,  the  court  granted  a
continuance and reopened discovery for ninety days.
          Miller moved for reconsideration, maintaining that some
of  the  documents sought by the State were not in his possession
and  pointing  out that the courts previous order had  failed  to
acknowledge or weigh the prejudice [caused] to the plaintiffs  by
a second continuance.  In response, the court reversed itself yet
again:
          While  the  defense raises valid concerns  of
          discovery and disclosure issues, upon further
          review and consideration, the court is unable
          to  determine what prejudice the  defendant[]
          will actually suffer because at this time the
          court  cannot  determine  exactly  what   the
          disputed  facts  will  show.   The  court  is
          better  able to determine these issues  after
          the  evidence has been presented at trial and
          the court will obviously entertain post-trial
          motions   if   it  becomes  necessary.    The
          plaintiffs will suffer prejudice if the trial
          is  continued, and in view of the fact [that]
          this  is the defendant[s] second continuance,
          the  plaintiffs[] motion for  reconsideration
          is GRANTED.
          
The  State  sought  an emergency stay from this  court,  but  its
motion was denied.5
          The  following  week, when the superior court  convened
for  jury selection, the State moved for the superior court judge
to  voluntarily  recuse  himself on the ground  that  the  courts
          series of contradictory orders had seriously prejudiced its case.
Although  the court denied the motion, it conceded  that  it  had
seemed  a  little  schizophrenic with regard  to  the  motion  to
continue, and attempted to explain why:
          Clearly  there  [are], I think,  really  good
          arguments on both sides[,] with plaintiffs  .
          .  .  having already given up one continuance
          with  strong  objection last year,  and  then
          with   the  agreement  that  discovery  would
          close.   And at the same time, the red  flags
          raised  by  the defense regarding information
          they  dont  feel like theyll have,  it  would
          cause  them  not to be able to present  their
          case fairly.
          
          Being   a  relatively  new  judge,   I   have
          conferred with what I consider some other . .
          . wiser judges or more experienced judges . .
          .  and  I  was getting different advice  from
          various judges.  And that changed over  time,
          and  I think some of the advice I was relying
          on  I had forgotten to mention that there had
          already  been a previous continuance for  the
          defense  granted.   And  obviously,  Im   not
          letting other judges make my decisions.   Ive
          pondered  this.  If I got paid  by  the  hour
          .  .  .  I wouldnt be rich, but maybe  Id  be
          making more than my salary.
          
          .  .  .  Clearly  there are remedies  to  the
          defense if the evidence comes in that  causes
          the  [s]tate not to be able . . . to  present
          their  case  fairly.  Its difficult  for  the
          [c]ourt  to  predict  the  future  and   what
          exactly  was  controverted in what  would  be
          admitted.   So that may explain a little  bit
          of [the] stop and go [orders].
          
The case proceeded to trial.
          Evidence  about the Seattle medical exam and the  three
new issues was introduced at trial.  The State received a copy of
the  Seattle medical examination report, and, although it was not
admitted  into evidence, the State was permitted to question  two
of  the testifying physicians about it.  Dr. Levine gave detailed
testimony   about  his  diagnostic  procedures,   including   the
provocative  discography, and testified that Miller had  deceived
him   about  his  whereabouts  in  August  and  September   2003.
Similarly,  Miller testified to having worked in Eek  and  stated
that  he  attempt[ed] to ship a four-wheeler home with  him.   He
admitted  that it had been confiscated under suspicion of  theft,
but  claimed  that he had been sold a machine that wasnt  someone
elses  to  sell.   The  State  had  the  FAAs  notes  about   the
investigation  of the alleged ATV theft, and the FAAs  letter  to
Miller about his unauthorized leave of absence.  These items were
introduced  as  exhibits  when the  State  moved  for  additional
discovery  time,  but do not appear to have  been  admitted  into
evidence at trial.
          After  Miller  had  presented his evidence,  the  State
moved  for  a  directed verdict on the ground that there  was  no
evidence  that  it had notice about the condition  of  the  north
windsock,6  or  alternatively,  on  the  ground  that  the  NOTAM
constituted  a sufficient warning.  This motion was denied.   The
jury  was  then given a series of instructions detailing  Millers
claims,  the  definitions of negligence and  causation,  and  the
method  of calculating economic damages.  One of the instructions
stated  that  the alleged acts of negligence include failures  to
maintain  the south windsock pole and attachments, or failure  to
warn  and  issue  accurate notices to the public of  defects  and
hazards,  and  then listed the conditions under  which  the  jury
could  find  that Miller was entitled to recover.  The  following
instruction,  using  similar  wording,  discussed  Millers  claim
regarding the north windsock.  Another instruction explained  the
concept  of  comparative negligence.  In addition, an instruction
informed the jury that Miller was not seeking damages related  to
[his]  voluntary decision to leave his employment with  the  FAA,
but  stated that the jury could award the plaintiff a fair amount
for  any  reduction in future ability to earn money  that  he  is
reasonably probable to experience.  A mitigation instruction  was
also given:  Plaintiff is not entitled to be paid for any loss or
for  any  part of any loss he could have avoided with  reasonable
efforts  and  without und[ue] risk, hardship,  or  embarrassment,
even  though the loss originally resulted from an act or omission
for which the defendant is legally responsible.
          The  jury ultimately concluded that the State had  been
negligent and that its negligence was the legal cause of  Millers
injuries.   Concluding  that Miller had not  been  negligent,  it
awarded Miller $1,256,000 and awarded his wife $20,000.  Although
Millers children were listed as plaintiffs, the jury declined  to
award  them damages.  The States subsequent motion for  JNOV  was
denied,7 and this appeal followed.
III. DISCUSSION
     A.   Standards of Review
          A  trial  courts  decision to  deny  a  continuance  is
reviewed for abuse of discretion.8  An abuse of discretion exists
if  a party has been deprived of a substantial right or seriously
prejudiced  by  the  lower courts ruling, 9 a determination  that
must be made in light of [t]he particular facts and circumstances
of each case.10
          We  will  affirm a trial courts denial of a motion  for
[JNOV]  unless  the  evidence, when  viewed  in  the  light  most
favorable  to  the  non-moving party,  is  such  that  reasonable
persons could not differ in their judgment of the facts.  11   In
our  review of the trial courts ruling on a motion for  JNOV,  we
will not weigh conflicting evidence, or judge the credibility  of
witnesses.12
          With regard to a superior courts jury instructions,  we
apply   our   independent  judgment  to  determine  whether   the
challenged  or  refused instruction states the  law  correctly.13
Giving  an  erroneous  jury instruction  constitutes  prejudicial
          error  if it probably affected the verdict.14  Finally,
determinations  regarding  the  admissibility  of  evidence   are
generally within the discretion of the trial court and  will  not
be disturbed absent an abuse of discretion.15
     B.   The Trial Courts Denial of a Continuance
          The  State  argues  that  both  the  process  of  trial
preparation and the substance of its case were prejudiced by  the
trial courts denial of a continuance.  By waiting to rule on  the
States motion until weeks before trial, and then issuing a series
of  contradictory rulings in the days immediately  before  trial,
the  superior  court allegedly led the State to squander  crucial
trial  preparation  time.  The State appears  to  be  making  two
separate  arguments  here.   One  argument,  more  implicit  than
explicit, is that the State was effectively denied notice of  the
trial date during the two-day period between the trial courts May
19  decision  to delay the trial and its final order  reinstating
the  trial  date of May 24.  But Miller filed his own motion  for
reconsideration later on May 19, so the State could not have been
unaware  of  the  possibility that trial  could  still  begin  on
May  24.  Thus, out of a period stretching back to the summer  of
2003,  when  the May 2004 trial date was set, the  State  lost  a
maximum  of  two  days and, even during those two  days,  it  had
reason to continue preparing for trial.
          The  States  second argument is that the  trial  courts
decision  to deny further discovery prevented it from  presenting
its   case  with  regard  to  four  allegedly  new  matters  that
substantially changed the trial picture.  As the Siggelkow  court
explained,  review  of  a  trial  courts  decision  to   deny   a
continuance hinges on [t]he particular facts and circumstances of
each  case,16 and implicates competing policy considerations.   A
courts   efforts  to  avoid  delay  should  not   prejudice   the
substantial  rights of parties by forcing them  to  go  to  trial
without  being  able  to fairly present their  case.17   But  the
necessity  for  orderly,  prompt  and  effective  disposition  of
litigation and the loss and hardship to the parties . . . as well
as  to  witnesses compel trial judges to insist upon cases  being
heard  and determined with as [much] promptness as the exigencies
of the case will permit.18  This need is particularly pressing in
cases that have already been subject to substantial delay.19
          Although  the trial court could have been more decisive
in  its handling of the continuance issue, it did not force  [the
State] to go to trial without being able to fairly present  [its]
case.20  By the time of trial, the State had conducted sufficient
preparation to present its core case  that it did not negligently
cause  Millers  accident  and bring the four new  issues  to  the
attention of the jury.
          As a threshold matter, it is not clear that the Seattle
medical report was a new issue at all, since the State could have
obtained a copy as early as November 2002 and attempted to do  so
in January 2003.  The record is silent as to why the State waited
over  a year to follow up on this request, and the State conceded
at  oral  argument  that  it  could have,  with  more  diligence,
obtained  the record earlier.  It ultimately obtained a  copy  of
the  report  in  March 2004 and questioned two of the  testifying
          physicians about it.21
          The  other three issues were also brought to the  jurys
attention.   Dr.  Levine  gave  detailed  testimony   about   the
provocative  discography,  and also  testified  that  Miller  had
deceived him about his whereabouts in August and September  2003.
Miller  himself  testified that he had  worked  in  Eek  and  had
attempted to ship an ATV to himself.  Although he claimed to have
been  deceived  by  the  seller, he admitted  that  it  had  been
confiscated, and acknowledged that he did not know if it had been
stolen.   Thus,  the  four  issues that  the  State  expected  to
substantially  change[] the trial picture were in fact  presented
at trial.  They simply failed to persuade the jury.22
          Moreover,   the  trial  courts  final  order   on   the
continuance  indicated  a willingness to revisit  the  underlying
issues  and  entertain  further motions  to  cure  any  prejudice
resulting   from  insufficient  discovery.   During  trial,   the
superior  court  considered   and granted   motions  directed  at
ameliorating  any  prejudice  resulting  from  the  denial  of  a
continuance.   For  example,  it  granted  the  State  a  one-day
continuance at the beginning of the trial to compensate  for  the
abruptness  of  its final order denying a long-term  continuance.
Thus, far from being indifferent to the States ability to present
its  case,  the trial court appears to have guarded  against  any
prejudice that might result from its earlier ruling.
          Finally,  the continuance requested by the State  would
have  been the second in a case where the trial date had  already
been  delayed by nearly a year.  It is not clear that  the  State
made good use of this time, as the new assistant attorney general
did  not  enter an appearance until March 2004.  Furthermore,  by
May  2004,  witnesses  memories  of  the  incident,  and  of  the
conditions at the Kipnuk airport, were over three years old.  The
delay  entailed by reopening discovery would likely have  been  a
lengthy  one.   As  we noted, the State did not request  a  short
stay.   In  addition  to  the  obvious dangers  of  deteriorating
evidence and fading memories, the requested delay would also have
entailed  new  travel  arrangements for witnesses   an  important
consideration   for   a   trial  held  in   Bethel.    In   these
circumstances,  the necessity for orderly, prompt  and  effective
disposition  of litigation and the [potential] loss and  hardship
to the parties . . . as well as to witnesses23 supported the trial
courts  ultimate  decision  to deny a continuance.   Because  the
State  has  not  shown  that  this  decision  deprived  it  of  a
substantial  right, we hold that the denial of a continuance  did
not constitute an abuse of discretion.24
     C.   Jury Instructions
          1.   The south windsock
          The  State  also  claims  that the  trial  court  erred
regarding  two  jury instructions.  First, in describing  Millers
complaint,  the court noted that the alleged acts  of  negligence
include  failures  to  maintain  the  south  windsock  pole   and
attachments, or failure to warn . . . the public of defects,  and
immediately listed the conditions under which the State could  be
held liable.25
          Because  the south windsock was not standing,  and  was
          the subject of a NOTAM warning of its unreliability, it is
difficult  to imagine that it, in isolation, could  have  been  a
legal  cause  of  Millers  accident.  But,  as  Miller  notes,  a
particular  jury instruction should be viewed in the  context  of
other   instructions  given  to  the  jury.26   Here,  a  similar
instruction  was  given regarding the north  windsock.   And,  as
noted   at  oral  argument,  the  two  instructions  were   given
separately  at  the  States  request.   Read  together,  the  two
instructions describe a claim that the State was negligent in its
operation  of  the airport as a whole, and that  this  negligence
resulted  in  a  breach  of the duty the State  assumed  when  it
constructed the windsocks.27  The instructions also explained that
Miller  would not be entitled to recovery unless the  jury  found
that three conditions were met: (1) the State was negligent;  (2)
the  States negligence was a legal cause of Millers harm; and (3)
Miller  suffered  actual harm.  In a subsequent instruction,  the
court  defined  legal cause as a substantial factor  in  bringing
about  the  harm,  such that the act or failure  to  act  was  so
important  in  bringing about the harm that a  reasonable  person
would regard it as a cause and attach responsibility to it[,] and
. . . the harm would not have occurred but for the act or failure
to act.
          In view of the evidence about the role of windsocks and
the condition of the airport, a reasonable jury could easily have
found  that  all  three  conditions were  met.   The  jury  heard
testimony  that  windsocks were essential to airport  safety  and
that   a   malfunctioning  windsock  was  as   dangerous   as   a
malfunctioning  traffic  light.  As the State  aviation  director
testified,  if  the  pilot is coming into an unattended  airport,
[he or she has] little other [than a windsock] . . . to determine
what  the  wind direction is.28  In an airport where one  of  two
windsocks is obviously not functioning, pilots would be forced to
rely  entirely  on  the  other sock  a  conclusion  supported  by
Millers testimony that he circled around twice, looking carefully
at  the  north windsock.  A reasonable jury could therefore  have
concluded that the lack of a south windsock made the airport more
dangerous  by  heightening reliance on the north  windsock.   For
this reason, viewing both the jury instructions and the condition
of  the  airport as a whole, rather than in isolation,29 we  hold
that  the trial court did not err by instructing the jury on  the
south windsock.
          2.   Loss of earning capacity
          The   State  also  claims  that  the  court  erred   in
permitting  the  jury to consider Millers lost  earning  capacity
after  Miller  had  stipulated that he was  not  seeking  damages
related  to  his decision to leave the FAA.  As the State  points
out, Miller continued working for the FAA for approximately three
years after the accident and, even though the nature of his  work
changed, his pay remained the same.  When he did resign,  he  did
so in the context of an investigation into a lengthy, unexplained
absence, and the possible theft of an ATV.30
          But  an award for lost earning capacity, which provides
compensation  for a permanent diminution of the ability  to  earn
money,31 is distinct from an award of actual lost earnings.32   A
          plaintiff whose actual lost earnings are negligible  or
nonexistent  may still be compensated for lost earning  capacity,
even  where  the  lack of actual earnings  is  a  result  of  the
plaintiffs own choices.33  Moreover, a plaintiffs duty to mitigate
does  not  extend  to  accepting a position  that  entails  great
hardship  or  personal  embarrassment.34  For  this  reason,  the
relevant inquiry is not whether Miller voluntarily resigned  from
the  FAA,  but rather, whether Millers long-term earning capacity
was  reduced  by  the accident and whether Miller  mitigated  his
damages.
          The record contains conflicting evidence on this point.
On  the  one  hand, Miller remained an employee of  the  FAA  for
approximately three years after the accident.  Had he  not  taken
an  unauthorized  leave  of  absence  and  attempted  to  ship  a
government-owned  ATV to himself, it is possible  that  he  would
have  been able to remain at the FAA indefinitely.  On the  other
hand, his new duties consisted largely of sit[ting] [at] his desk
with  nothing  to do and, according to Gallela, it was  clear  to
[Miller]  that [the] FAA did not want him there since he  couldnt
do  his job.  If the accident had permanently deprived Miller  of
his  ability  to  do  his  job, and  if  the  FAA  had  no  other
substantive  work for him, it is unlikely that the  agency  would
have given him an indefinite sinecure.35  Even if it had, holding
a  job with no significant responsibilities could be a source  of
embarrassment  to someone who maintained that he  previously  had
derived pride from the usefulness of his work.36  The light work37
that Miller was actually capable of performing paid significantly
less  than  his FAA salary.  Based on this evidence, a reasonable
jury  could  have found that Miller was entitled to  damages  for
reduced earning capacity.
          Moreover, the trial court gave a mitigation of  damages
instruction.   The State was free to argue that Millers  decision
to leave the FAA voluntarily despite the higher pay represented a
failure  to mitigate his damages.38   We therefore hold that  the
trial  court  did  not  err in giving an  instruction  on  future
earning capacity.39
     D.   Motion for JNOV
          The  State also claims that the court erred in  denying
its  motion  for JNOV.  A superior courts denial of a motion  for
JNOV  must  be affirmed unless the evidence, when viewed  in  the
light  most  favorable  to the non-moving  party,  is  such  that
reasonable  persons  could not differ in their  judgment  of  the
facts.40   Here, the central issue of fact is whether  the  State
complied  with  its  duty  to  use  due  care  to  guard  against
unreasonable risks created by dangerous conditions.41
          Although  the  State is correct to point  out  that  no
federal  or state law imposed a duty to install windsocks,  there
is  no dispute that it installed them at the Kipnuk airport.   By
doing  so,  and inducing pilots to rely on them for  safety,  the
State undertook a duty to maintain the windsocks, or warn if they
were malfunctioning.42  The NOTAM, which indicated that the south
windsock  was  damaged [and] not functioning  properly,  arguably
fulfilled  the  States  duty  with regard  to  that  windsock  in
isolation.  But Millers claim was based on the overall  condition
          of the airport.43  At trial, Miller testified that he had relied
on the north windsock in determining whether he could safely land
a  reliance  that was likely heightened by the lack  of  a  south
windsock.   A DOTPF worker in Kipnuk testified that he  sometimes
used wooden boards to prop the sock up, but that the boards would
rot  quickly.   He  also  maintained that  he  always  report[ed]
everything about the socks condition to his superiors.  Viewed in
the light most favorable to Miller,44 this evidence would permit a
reasonable person to conclude that the State was aware  that  its
actions  had created a dangerous condition at the Kipnuk  airport
and  that it failed to remedy or warn about this condition.   For
that reason, we affirm the superior courts denial of JNOV.
IV.  CONCLUSION
          For the reasons set forth above, we AFFIRM the judgment
of the superior court.
_______________________________
     1     A  windsock is a flexible cloth cone, the  opening  of
which  is attached to a wire frame at the end of a vertical pole.
By  looking at the direction the sock is pointing, and the amount
of  air collected in it, pilots can gauge the direction and speed
of the wind.  An aviation expert with extensive flying experience
in  rural  Alaska testified that every airport he had ever  flown
into,  including those in third world countries had  a  windsock.
He  compared the danger of a malfunctioning windsock to the  risk
of  a  car  accident  at  an intersection with  a  malfunctioning
traffic light.

     2     Miller had consulted Radke about back pain before  the
accident.  In April 2000 he had experienced back pain related  to
the  treatment of a bout of meningitis, and in July of  the  same
year,  he  was  diagnosed with a protruding  disc.   Although  he
reported  decreased sensation in his right leg in July 2000,  his
pain had decreased since April 2000.  In October 2000 he reported
to  the emergency room, complaining of sharp chest pains, but his
back  was noted to be non-tender on that visit, and he also didnt
complain of any back pain.  Dr. Radke testified that the  medical
record  from  October would lead [her] to believe that  [Millers]
previous disc herniations and any other back injuries that he had
had  were  resolved at that time.  She stated that  the  injuries
Miller  complained of in January 2001 were likely caused  by  the
plane accident because prior to the plane crash[,] he had not had
any complaints of back pain for quite some time, and since . .  .
the plane crash he has had pain ever since.

     3     Dr.  Levine  testified  that this  procedure  involved
put[ting] needles into the disc space, one of which would  go  to
the  bone,  and gradually inject[ing] a little bit of  dye  under
pressure  and  record[ing] the pressure[,] as  well  as  visually
look[ing] and see[ing] what the disc is doing.

     4     The  investigation  appears not to  have  resulted  in
criminal  charges.   Miller  testified  at  trial  that  he   had
purchased  the ATV from a dishonest seller and had  only  learned
that it did not belong to the seller when the FAA confiscated it.

     5     Although  we pointed out the stop-and-go character  of
the  superior courts orders in our order denying the stay motion,
we  also noted that review of the superior courts order under the
applicable standard of review, abuse of discretion, would not  be
likely  to  result  in  a conclusion that the  court  abused  its
discretion in denying a continuance.

     6     The  motion did not discuss the testimony of the DOTPF
employee who maintained that the sock was leaning to one side and
that he repeatedly used pieces of wood to prop it up.

     7     This  motion relied on arguments similar to those  put
forward in the States motion for a directed verdict.

     8    Neal & Co., Inc. v. City of Dillingham, 923 P.2d 89, 94
n.6  (Alaska  1996); House v. House, 779 P.2d 1204, 1206  (Alaska
1989); Siggelkow v. Siggelkow, 643 P.2d 985, 986 (Alaska 1982).

     9    House, 779 P.2d at 1206 (quoting Barrett v. Gagnon, 516
P.2d  1202, 1203 (Alaska 1973)); see also House, 779 P.2d at 1207
(noting that we will not lightly overturn a lower courts decision
which  was based on a review of all the relevant evidence and  in
which  the complaining party had reasonable opportunity in  court
to introduce evidence and contest the other sides evidence).

     10    Sigglekow, 643 P.2d at 987.

     11     Getchell  v.  Lodge, 65 P.3d  50,  53  (Alaska  2003)
(quoting Lynden Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001)).

     12    Blumenshine v. Baptiste, 869 P.2d 470, 473 n.3 (Alaska
1994).

     13    City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004).

     14    Id.

     15     Alderman v. Iditarod Props., Inc., 104 P.3d 136,  140
(Alaska 2004).

     16    643 P.2d at 987.

     17    Id.

     18     Id. (quoting Kalmus v. Kalmus, 230 P.2d 57, 63  (Cal.
Dist. App. 1951), partially overturned on other grounds by Hudson
v. Hudson, 344 P.2d 295, 296-97 (Cal. 1959)).

     19     Cf.  Neal  & Co., Inc., 923 P.2d at 95 (holding  that
decision  to deny continuance after five years of litigation  was
not  an  abuse  of  discretion . . . at that late  point  in  the
litigation).

     20    Id.

     21     The State points out that the court did not admit the
report itself and that the stop-and-go orders interfered with its
efforts  to call an expert to testify about the report.   But  it
cites  no authority in support of the proposition that the  court
erred  in declining to admit the report.  Furthermore, the record
does not establish that the absence of the report itself, and  of
an  additional witnesss testimony about it, had any effect on the
result.   See  Fleegel v. Estate of Boyles, 61  P.3d  1267,  1270
(Alaska  2002) (We will only reverse evidentiary rulings if  upon
review of the record as a whole we are left with the definite and
firm conviction that the trial court erred in its ruling and  the
error  affected the substantial rights of a party.);  House,  779
P.2d  at 1206 (This court will not disturb a trial courts refusal
to  grant a continuance unless . . . a party has been deprived of
a  substantial right or seriously prejudiced by the lower  courts
ruling.) (citations and quotation marks omitted).

     22     Cf.  House, 779 P.2d at 1207 (Inability  to  mount  a
successful  case does not mean that . . . an abuse of  discretion
occurred.).

     23    Sigglekow, 643 P.2d at 987 (quoting Kalmus, 230 P.2d at
63).

     24     Cf.  House,  779 P.2d at 1207 (declining  to  lightly
overturn  a lower courts decision which was based on a review  of
all  the relevant evidence and in which the complaining party had
reasonable opportunity in court to introduce evidence and contest
the other sides evidence).

     25    The State did not discuss this jury instruction in its
motion  for  directed  verdict or motion for  JNOV,  but  it  did
present  its  underlying argument  that its  duty  regarding  the
south windsock had been satisfied by publishing a warning  in its
motion for JNOV.

     26    See Lynden Inc., 30 P.3d at 617 (Jury instructions are
to be analyzed as a whole, rather than in isolation.).

     27    See City of Seward v. Afognak Logging, 31 P.3d 780, 784
(Alaska  2001) (We have long recognized that a duty of reasonable
care generally arises when a person undertakes an action and that
one  who  assumes to act, even though gratuitously,  may  thereby
become subject to the duty of acting carefully. ) (quoting Moloso
v. State, 644 P.2d 205, 212 (Alaska 1982)).

     28     He  also  noted that the State should  have  put  the
[south] windsock back up.

     29    Lynden Inc., 30 P.3d at 617.

     30     The  State also appeals the trial courts decision  to
admit Gallelas testimony about Millers lost earning capacity.  In
support  of this argument, it relies on Millers stipulation  that
he  left  his  position voluntarily (and therefore would  not  be
pursuing  a  lost earnings claim).  As the superior court  noted,
however,  Miller  did  not  waive  his  claim  for  lost  earning
capacity,  a type of economic damages different from actual  lost
earnings.

     31     Grimes  v.  Haslett, 641 P.2d 813, 818 (Alaska  1982)
(quoting City of Fairbanks v. Nesbett, 432 P.2d 607, 617  (Alaska
1967)).

     32     Cf.  Anderson v. Litzenberg, 694 A.2d 150,  161  (Md.
Spec.  App. 1997) (Impairment of earning capacity is measured  by
the  lost  capacity to earn, rather than what a  plaintiff  would
have earned.) (citation and quotation marks omitted).

     33     See,  e.g., Am. Natl Watermattress Corp. v. Manville,
642  P.2d  1330, 1342 (Alaska 1982) (affirming a superior  courts
decision  to  instruct the jury on lost earning  capacity  for  a
plaintiff  with  negligible actual earnings,  and  rejecting  the
defendants  argument that the plaintiff had no .  .  .  [earning]
capacity,  because  she had worked for [a] family-owned  business
for many years for an almost nominal salary); Grimes, 641 P.2d at
818  n.3  (citing  Morrison v. State, 516 P.2d 402,  405  (Alaska
1973)  for  the  proposition  that  [t]he  right  of  an  injured
homemaker to recover for impaired earning capacity regardless  of
whether  she  was  employed  before the  injury  exemplifies  the
distinction between an award for lost earnings and an  award  for
lost earning capacity).

     34     See  Univ. of Alaska v. Chauvin, 521 P.2d 1234,  1240
(Alaska 1974) (noting that a university employee alleging  breach
of  contract was required to mitigate his damages if it  did  not
involve  embarrassment or hardship, and holding that the employee
was  not  required  to take an untenured position  that  was  not
comparable  to his previous job).  Here, the jury was  instructed
that  the [p]laintiff is not entitled to be paid for any loss  or
for  any  part of any loss he could have avoided with  reasonable
efforts  and  without und[ue] risk, hardship,  or  embarrassment,
even  though the loss originally resulted from an act or omission
for which the defendant is legally responsible.

     35     Gallelas  calculations assumed that Miller  would  be
leaving  his FAA job to seek employment suitable to his  physical
condition   on  January  1,  2004.   Millers  actual  resignation
occurred  shortly after the FAA began investigating  him  in  the
fall of 2003.

     36     Cf. Chauvin, 521 P.2d at 1240.  According to Gallela,
having nothing to do at work wore pretty heavily on Miller.

     37     The  work  that Miller was capable of performing  was
itself  the  subject of conflicting evidence.  While a  physician
called by Miller testified that Miller was capable of working  in
either  sedentary  or  light positions  and  might  need  further
medical  treatment,  the  States  physician  found  that  Millers
physical  capacity  had  not  been  permanently  reduced  by  the
accident,  and  that  he would have been  able  to  fly  a  small
airplane after July 2001.

     38     Cf. Oost-Lievense v. N. Am. Consortium, P.C., 969  F.
Supp. 874, 881 n.3 (S.D.N.Y. 1997) (noting, in the context of  an
action  for  breach of employment contract, that  the  defendants
were free to argue at trial that plaintiff has failed to mitigate
his damages . . . , as the question of damages is for the jury).

     39    Cf. Am. Nat. Watermattress Corp., 642 P.2d at 1342.

     40    Lynden Inc., 30 P.3d at 612 (citation omitted).

     41     City  of Seward, 31 P.3d at 784 (quoting Guerrero  v.
Alaska Housing Fin. Corp., 6 P.3d 250, 255-56 (Alaska 2000)).

     42     See  City  of Seward, 31 P.3d at 784  (We  have  long
recognized that a duty of reasonable care generally arises when a
person undertakes an action and that one who assumes to act, even
though  gratuitously, may thereby become subject to the  duty  of
acting  carefully. ) (quoting Moloso v. State, 644 P.2d 205,  212
(Alaska   1982)).   A  landowners  duty  regarding  a   dangerous
condition  can  generally be satisfied by  either  remedying  the
condition or warning those who are likely to encounter  it.   Cf.
Schroeder  v. St. Louis County, 708 N.W.2d 497, 511 (Minn.  2006)
(discussing  a municipalitys duty to remedy or warn of  dangerous
conditions on its roads).

     43     See City of Seward, 31 P.3d at 784 n.12 (noting  that
whether a defendants actions constitute negligence depends on all
[of]  the  circumstances, including the likelihood of  injury  to
others,  the  seriousness of the injury, and the  burden  on  the
respective parties of avoiding the risk) (citing Webb v. City  of
Sitka, 561 P.2d 731, 732-33 (Alaska 1977)).

     44    Lynden Inc., 30 P.3d at 612.

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