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Small v. Sayre

Supreme Court of Alaska

July 20, 2016

KENISHA SMALL, TRAVIS SMALL SR., and KENISHA SMALL and TRAVIS SMALL SR., on behalf of KHANYA SMALL, a minor child, Appellants,

         Appeal 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 Appellants.

          Gregory R. Henrikson, Walker & Eakes, Anchorage, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices [Carney, Justice, not participating.]


          BOLGER, Justice.


         A 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.


         In 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.

         In 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 paid.[1]

         The 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.

         The 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.


         "Generally, questions of whatever nature, not raised and properly preserved for review in the trial court, will not be noticed on appeal."[2] Accordingly, we review issues that were not raised before the trial court for plain error.[3] We will find plain error "where an obvious mistake has been made which creates a high likelihood that injustice has resulted."[4]

         IV.DISCUS ...

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