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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tracy Sampson v Alaska Airlines, Inc. (7/24/2020) sp-7470
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
TRACY SAMPSON, )
) Supreme Court No. S-17211
Appellant, )
) Superior Court No. 2KB-16-00048 CI
v. )
) O P I N I O N
ALASKA AIRLINES, INC., )
) No. 7470 - July 24, 2020
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Second Judicial District, Kotzebue, Paul A. Roetman, Judge.
Appearances: Robert Campbell, Caliber Law Group,
Utqiagvik, for Appellant. Susan Orlansky, Reeves Amodio
LLC, and Jeffrey M. Feldman, Summit Law Group,
Anchorage, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
STOWERS, Justice.
I. INTRODUCTION
A woman who slipped and fell on ice outside the Alaska Airlines terminal
at the Kotzebue Airport sustained serious injury and brought suit against the airline. At
the end of the trial, the jury found Alaska Airlines liable and awarded the woman
substantial damages. The woman appeals, arguing that the special verdict form
contradicted the jury instructions. Because the verdict form was not plainly erroneous,
we affirm.
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II. FACTS AND PROCEEDINGS
A. Facts
In April 2015 Tracy Sampson was at the Kotzebue Airport, en route from
Anchorage to her home in Selawik. She was walking from the Alaska Airlines terminal
to the Bering Air terminal when she slipped and fell on ice. Paramedics brought her to
the hospital emergency room. Medical staff took X-rays and told Sampson that she had
fractured her kneecap and needed to go to Anchorage for surgery. Medical staff at the
Alaska Native Medical Center in Anchorage informed Sampson that half of her kneecap
was fractured and half was shattered. They subsequently performed surgery. After
surgery, her knee was put in an immobilizer and a cast. She traveled back to Selawik
around a week later and was bedridden for about two months.
Sampson also claimed to have injured her elbow and back in the fall. She
bruised her elbow, but it recovered completely. The connection between her back
injuries and the fall was disputed, as Sampson had back pain prior to the fall. She
claimed the pain got much worse after the fall, but she did not realize this until she
became mobile two months after surgery. Prior to the fall, no doctor had recommended
that she have surgery for her back pain. After her fall, she had back surgery.
The injuries affected Sampson's way of life. She was married, a mother of
five, a grandmother of one, and a "full-time subsistence mom." Prior to the fall, she
participated in substantial subsistence activities, and she completed much of the
housework. She also sewed, spent time with her family, and enjoyed outdoor activities.
After the fall, she could engage in only about half of her previous subsistence activities
and had trouble with housework and sewing. The injuries also made it more difficult for
her to engage in fun outdoor activities as well as basic life activities such as using the
bathroom and picking up her grandson.
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Sampson claimed that the ice patch where she fell had not been sanded and
that Alaska Airlines could have prevented her injury by putting "[a] cup of sand or kitty
litter" on the ice. Alaska Airlines denied not having sanded the area where Sampson fell.
B. Proceedings
Sampson filed a complaint against Alaska Airlines. She claimed that there
was "an un-sanded and/or un-salted unnatural accumulation of ice and snow that created
an unreasonably dangerous condition existing on thepremises of which[AlaskaAirlines]
. . . knew or should have known and of which [Alaska Airlines] had a reasonable
opportunity to inspect and repair." She alleged that Alaska Airlines was negligent and
breached its duty of care; she claimed damages in excess of $100,000. In its answer,
Alaska Airlines denied breaching any legal duty to Sampson and raised a number of
affirmative defenses, including comparative negligence. The case went to trial.
The jury instructions were the product of a long process. Both Alaska
Airlines and Sampson filed proposed jury instructions and special verdict forms. Alaska
Airlines later filed a joint set of jury instructions, which included a lengthy list of Alaska
Civil Pattern Jury Instructions and stated that the parties "agreed to the jury instructions
proposed byAlaskaAirlines,other than proposed instructionnumber 26and [the]Alaska
Airlines proposed jury verdict form." A few weeks later the court gave the parties a draft
of the jury instructions and special verdict form for review. The jury instruction on non-
economic losses stated:
The fourth item of loss claimed by the plaintiff is for
non-economic losses. You may award the plaintiff a fair
amount to compensate the plaintiff for pain and suffering,
loss of enjoyment of life, physical impairment, and
inconvenience resulting from the injury. Such an award
should fairly compensate the plaintiff for the non-economic
losses . . . that she is reasonably probable to experience in the
future. In deciding how long the plaintiff may experience
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such losses in the future, you may need to consider her
current life expectancy.
The question on the special verdict form about future non-economic losses read: "Has
Tracy Sampson proven to a reasonable degree of certainty that she will incur non-
economic losses in the future as a result of the April 24, 2015 accident?"
The judge and attorneys discussed the jury instructions and special verdict
form. Neither party objected to the jury instruction about non-economic damages or the
special verdict form question about future non-economic damages. In fact, when asked
about the verdict form question on non-economic damages, Sampson's attorney
responded, "That's good." The court read the instructions to the jury. With respect to
future non-economic losses, the court told the jurors that "an award should fairly
compensate [Sampson] for . . . non-economic losses that she is reasonably probable to
experience in the future." The case was submitted to the jury and it began deliberations.
The jury found that Alaska Airlines did not act with reasonable care in
maintaining its property in a reasonably safe condition, and its failure to do so was a
substantial factor in causing Sampson's damages. The jury also found that Sampson did
not act with reasonable care to avoid injury to herself, and that this was also a substantial
factor in causing Sampson's damages. The jury determined that Alaska Airlines was
75% at fault and Sampson was 25% at fault.
The jury determined the accident was a substantial factor in causing
economic damages for necessary medical care in the amount of $36,747 (the total
amount claimed for the knee injury). The jury determined the accident was a substantial
1 but Sampson had not proved to a
factor in causing $22,402 in past non-market losses,
reasonable degree of certainty that she would incur future non-market losses. The jury
determined the accident was a substantial factor in causing $17,327.80 in past economic
1
This claim covered Sampson's "work around the home."
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subsistence value, and Sampson had proven to a reasonable degree of certainty that she
would incur $64,820 in future subsistence losses. Finally, with respect to non-economic
damages, the jury determined that the accident was a substantial factor in causing past
non-economic damages of $17,327 but that Sampson had not proven to a reasonable
degree of certainty that she would incur future non-economic losses.
The court entered final judgment against Alaska Airlines in the amount of
2 Sampson appealsonly thefailuretoaward futurenon-economicdamages.
$125,850.76.
III. STANDARD OF REVIEW
"We review jury instructions de novo when a timely objection is made.
Without a timely objection, we will only review instructions for plain error. A special
3
verdict form is a type of jury instruction subject to the same standard of review." "Plain
error exists where an obvious mistake has been made which creates a high likelihood that
4
injustice has resulted."
IV. DISCUSSION
A. The Jury Instructions Were Not Plainly Erroneous.
Sampson argues that the special verdict form contradicted the jury
instructions regarding future non-economic damages. The jury instructions directed the
jury to award future non-economic damages that are "reasonably probable" to occur.
The verdict form asked if Sampson had proven to a "reasonable degree of certainty" that
2 This was thesumoftheprincipal of$118,967.85 plus prejudgment interest.
3 Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005) (footnotes
omitted).
4 Baker v. Ryan Air, Inc., 345 P.3d 101, 109 (Alaska 2015) (quoting Sosa v.
State, 4 P.3d 951, 953 (Alaska 2000)).
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5
she would incur future non-economic losses. Sampson asserts that "reasonably
probable" is the correct burden and that the special verdict form "created a higher, more
demanding, standard." While acknowledging that this court "has occasionally mixed the
terms," she claims the terms are "clearly different" such that "any reasonable jury would
assume that they are, in fact, different in meaning." Alaska Airlines asserts that these
two phrases are "legally synonymous, different words that declare the same standard."
6 and "reasonably certain"7 in
We have used both "reasonably probable"
stating the standard for proving future damages. In Blumenshine v. Baptiste we used the
terms "reasonable probability" and "reasonable certainty" interchangeably when
discussing damages for future medical expenses.8 In Sherbahn v. Kerkove we stated, "To
recover for future medical expenses one must prove to a reasonable probability that they
9 We further noted, "In Blumenshine, we used the terms 'reasonable
will occur."
certainty' and 'reasonableprobability' interchangeably. Although'reasonablecertainty'
sounds more demanding than 'reasonable probability,' it is intended to have an identical
10 We have also equated the two terms in the context of medical expert
meaning."
5 The other two categories of future damages - economic damages for non-
market activities and subsistence activities - also had this conflict in language between
the jury instructions and the special verdict form, but Sampson does not raise these
discrepancies on appeal.
6 See, e.g., Alexander v. State, Dep't of Corr. , 221 P.3d 321, 327 (Alaska
2009); Jensen v. Goresen, 881 P.2d 1119, 1126-27 (Alaska 1994).
7 See, e.g., Small v. Sayre, 384 P.3d 785, 789 (Alaska 2016).
8 869 P.2d 470, 473 (Alaska 1994).
9 987 P.2d 195, 198 (Alaska 1999) (quoting Pluid v. B.K., 948 P.2d 981, 984
(Alaska 1997)).
10 Id. at 199 n.12.
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opinion, stating that "a medical expert's opinion must be within a 'reasonable medical
certainty' or the equivalent 'reasonable medical probability' to be admissible." 11
Sampson concedes she didnotobject to the verdict formbefore the superior
court, and therefore the plain error standard applies. This concession is well taken, as
Sampson not only did not object, but affirmatively agreed to the now-challenged
question on the verdict form. Plain error is "found where 'an obvious mistake exists
such that the jury instruction creates "a high likelihood that the jury will follow an
erroneous theory resulting in a miscarriage of justice." ' "12 In view of our prior case
law, the inconsistency in the terms was not an obvious mistake and therefore not plain
error.
We recognize there is a theoretically plausible potential for confusion
13 and our own Committee on
between the two terms, as recognized by other states
Pattern Jury Instructions (Committee), which used the term "reasonably probable" in
describing the standard for future damages in the Alaska Civil Pattern Jury Instructions14
because it recognized the use of "reasonably certain" could potentially create
11 Marron v. Stromstad , 123 P.3d 992, 1008 (Alaska 2005) (citing Maddocks
v. Bennett, 456 P.2d 453, 457-58 (Alaska 1969)).
12 Barrett v. Era Aviation, Inc., 996 P.2d 101, 105 (Alaska 2000) (quoting
Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska 1992)).
13 See generally C.S. Wheatley, Jr., Annotation, Future Pain and Suffering
as Element of Damages for Physical Injury, 81 A.L.R. 423, Westlaw (database updated
June 2020) (summarizing which states use which standard).
14 Alaska Civ. Pattern Jury Instructions 20.01A (Introductory Instruction;
Liability Contested), 20.01B (Introductory Instruction: Liability Admitted), 20.02B
(Future Medical Expenses), 20.04 (Loss Of Future Earning Capacity), 20.06 (Non-
Economic Losses), 20.10 (Future Damages No Reduction To Present Value).
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confusion.15 We believe the Committee was wise in its judgment and would welcome
further direction for the trial courts from the Committee on this question.
V. CONCLUSION
We AFFIRM the jury award.
15 Alaska Civ. Pattern Jury Instructions 20.02B cmt. ("The Committee has
used the term 'reasonably probable' in order to avoid confusing the jury."), 20.04 cmt.
(same).
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