KENISHA SMALL, TRAVIS SMALL SR., and KENISHA SMALL and TRAVIS SMALL SR., on behalf of KHANYA SMALL, a minor child, Appellants,
AUSTIN SAYRE, Appellee.
from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Jane F. Kauvar, Judge. Superior
Court No. 4FA-13-01871 CI
Michael J. Walleri, Gazewood & Weiner, PC, Fairbanks, for
Gregory R. Henrikson, Walker & Eakes, Anchorage, for
Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger,
Justices [Carney, Justice, not participating.]
driver and his passengers sued another driver for injuries
arising from an accident. After a trial, the jury returned an
award of past pain and suffering damages for the driver and
past medical expenses and pain and suffering damages for one
of the passengers. The driver and passengers appeal this
award, arguing that it is impermissibly inconsistent and not
supported by the weight of the evidence. Because the driver
and passengers failed to challenge the jury verdicts before
the trial court, all of their challenges are waived, and we
affirm the verdicts in full.
FACTS AND PROCEEDINGS
November 2011 Travis Small was idling in traffic with his
wife Kenisha and daughter Khanya as passengers when Austin
Sayre rear-ended their car. The Smalls all went to the
hospital following the accident where they were prescribed
pain medication and advised to schedule follow-up
appointments with a doctor. In the months and years following
the accident, the Smalls sought medical treatment for a
variety of issues that they claimed stemmed from the
accident. Travis sought medical and chiropractic treatment
for neck and back pain. And Kenisha saw over a half-dozen
medical providers, including neurologists, an orthopedic
surgeon, chiropractors, and physical therapists. She
complained of chronic migraines and experienced pain in her
upper body, neck, and left shoulder. A year after the
accident, a neurosurgeon diagnosed her with a herniated disc
and recommended that she undergo spinal fusion surgery. But
Kenisha did not have the surgery at that time because she was
pregnant, and she did not reschedule the surgery at a later
date due to concerns about the cost.
April 2013 the Smalls filed a complaint against Sayre
alleging negligence and damages in excess of $ 100, 000.
Sayre ultimately conceded negligence but contested both
causation and damages. He moved for partial summary judgment
on the portion of the Smalls' medical expense claims that
were paid by their insurer. The trial court granted this
motion, authorizing the Smalls to pursue recovery of only the
medical expenses that their insurer had not
Smalls proceeded to a jury trial on their remaining claims in
April 2015. The jury issued three special verdicts, finding
that Sayre's negligence was a "substantial
factor" in causing injury to Kenisha and Travis but not
to Khanya. The jury awarded Kenisha $2, 000 in past economic
damages (for medical expenses or lost wages) and $4, 000 in
past non-economic damages (for pain and suffering, loss of
enjoyment of life, physical impairment, or inconvenience) but
did not award any future economic or non-economic damages.
Travis was awarded $4, 000 in past non-economic damages but
was not awarded past economic damages or any future damages.
Before the jury announced the verdicts, the parties'
lawyers and the judge briefly discussed whether an award of
pain and suffering without medical expenses would be an
inconsistent verdict, but the court issued no clear ruling.
The Smalls made no motion to disturb the jury verdict in the
proceedings before the trial court, either by moving for a
judgment notwithstanding the verdict or for a new trial.
Smalls now appeal the jury verdicts with respect to Travis
and Kenisha. They take issue with two aspects of the
verdicts: (1) the jury's failure to award Kenisha damages
for future medical expenses to cover the cost of future
surgery and (2) the jury's failure to award Travis
damages for past medical expenses. The Smalls claim that both
of these awards are "impermissibly inconsistent"
and "contrary to the weight of the evidence." Sayre
argues that both of these challenges are waived because the
Smalls did not raise a claim of inconsistency before the jury
was dismissed and did not move for a new trial, instead
challenging the verdicts for the first time on appeal.
STANDARD OF REVIEW
questions of whatever nature, not raised and properly
preserved for review in the trial court, will not be noticed
on appeal." Accordingly, we review issues that were
not raised before the trial court for plain
error. We will find plain error "where an
obvious mistake has been made which creates a high likelihood
that injustice has resulted."