State of Minnesota, Respondent, vs. Keith Winston Talley, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

IN COURT OF APPEALS

C6-00-668

Joel Kordahl, et al.,

Appellants,

vs.

Richard Koss, et al.,

Respondents.

Lake County District Court

File No. C499001

Boad S. Swanson, Marcovich, Cochrane, Milliken & Swanson, 1214 Belknap Street, Superior, WI 54880 (for appellants)

Kevin F. Gray, Patrick J. Larkin, Rajkowski Hansmeier, Ltd., PO Box 1433, St. Cloud, MN 56302 (for respondents)

            Considered and decided by Harten, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

HALBROOKS, Judge

            Appellants brought a personal-injury action after respondents' dog bit Joel Kordahl.  A jury trial resulted in a verdict awarding $7,448 to appellants for past damages for medical expenses, lost wages, and pain and suffering.  Appellants challenged the verdict arguing that it was perverse because there was no award for future damages or loss of consortium.  The district court did not abuse its discretion in denying appellants' motion for a new trial.  We affirm. 

            On February 25, 1998, appellant Joel Kordahl was bitten in the right knee, left thigh, and buttocks by a German shepherd owned by respondents.  Kordahl, a delivery driver for UPS, was attempting to deliver a package to respondents when the dog attacked him.  The dog bite resulted in a puncture wound to Kordahl's right knee and a 3.25 centimeter laceration to his perineum.  Notwithstanding his injuries, Kordahl was able to complete his UPS route that day.  He sought medical treatment that evening with Thomas Rutka, M.D.  The puncture wound and the perineum laceration required stitches.  The stitches to the perineum did not hold and that wound became infected, requiring additional treatment and stitches.  Medical bills totaled $528.  

            Kordahl missed several days of work due to discomfort from his injuries and his doctor's restrictions on lifting.  The parties stipulated that Kordahl's wage loss was $1,920. 

            Before trial, respondents stipulated to liability, and only the damage issue was tried.  All of the evidence was presented through four witnesses appellants Joel and Judy Kordahl, Dr. Rutka, and respondent Constance Koss.  Joel Kordahl testified about the incident and his occasional stiffness.  He also testified that he is now afraid of dogs and occasionally has nightmares of being attacked by dogs.  But he conceded that his scars do not bother him, that he has resumed all of the activities he previously engaged in, and that he does not intend to seek any further medical treatment related to the dog bite.  Dr. Rutka testified that, with the exception of the scars, Kordahl has no permanent injury as a result of the dog bite and that there are no medical restrictions on his activities. 

            The jury awarded Kordahl $528 for past medical expenses, $1,920 for lost wages, and $5,000 for pain and suffering.  It did not award any future damages to Joel Kordahl or any amount to Judy Kordahl for loss of consortium.  Appellants filed a timely motion for a new trial claiming that the verdict was perverse.  Specifically, appellants contend that the jury disregarded its duty by failing to award future damages and damages for the loss-of-consortium claim, despite what appellants contend is uncontroverted evidence.  The trial court denied appellants' motion.  This appeal follows.

D E C I S I O N

            The decision on whether to grant a motion for a new trial is within the trial court's discretion and will not be reversed absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). 

On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.

ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992) (citation omitted).

Appellants contend that the jury's failure to award any future damages or loss of consortium damages makes the verdict perverse.  A jury's answer to a special verdict question will not be set aside unless it is "perverse and palpably contrary to the evidence" or unless the evidence is so clear that it leaves no room for differences among reasonable people.  Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 12, 1993).  "If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed."  Id. (citation omitted).

            Appellants contend that uncontroverted evidence supports an award of future damages and loss-of-consortium damages.  Respondents did not introduce affirmative evidence to counter appellants' claims, but respondents' counsel cross-examined appellants' witnesses and obtained admissions from each of them that support the jury's verdict.  "A jury is not required to accept even uncontradicted testimony if improbable or if surrounding facts and circumstances afford reasonable grounds for doubting its credibility."  Waite v. American Family Mut. Ins. Co., 352 N.W.2d 19, 22 (Minn. 1984) (citation omitted).

Given the admissions made by appellants' witnesses on cross-examination, we hold that the jury's verdict was not perverse and palpably contrary to the evidence at trial.  For example, Kordahl admitted that the physical appearance of the scars do not bother him and that he does not intend to seek any additional medical treatment for the wound.  He also stated that his life activities have returned to normal since the attack.  Judy Kordahl testified that her husband was "crabby" following the incident and that their sexual relationship was impacted for approximately three months following the attack.  But she also testified that their relationship has returned to the way it was prior to this incident.  Dr. Rutka testified that Kordahl has no permanent injury other than the scar, there are no restrictions on his activities, and no further treatment is indicated.  Based on this testimony, the jury apparently chose to discredit the testimony that appellants contend supports their claims for future damages and loss of consortium.

Appellants further contend that the jury's verdict was inadequate as a result of the jury's failure to award future damages and loss-of-consortium damages. 

The test to be applied by an appellate court is whether the jury award of damages is "so inadequate or excessive that * * * it could only have been rendered on account of passion or prejudice."

Flanagan v. Lindberg, 404 N.W.2d 799, 800 (Minn. 1987) (quotation omitted).  The party challenging the adequacy of the verdict must cite to specific examples or instances of prejudice.  Vadnais v. American Family Mut. Ins. Co., 309 Minn. 97, 104, 243 N.W.2d 45, 49 (1976).  In the instant case, Kordahl has failed to identify any specific instances of prejudice.  And our review of the record does not support the conclusion that the jury's verdict was based on passion or prejudice.

            The jury assessed the evidence and concluded that the evidence justified an award of certain damages but was insufficient to award other categories of damages.  Given appellants' witnesses' own admissions, this conclusion is not unreasonable.  The jury apparently agreed with respondents' theory of the case that Kordahl's injury was relatively minor and that, despite his initial pain and medical expenses, Kordahl did not sustain any future damages.  Further, the jury concluded that Kordahl's injury was not significant enough to have interfered with his relationship with his wife, and, therefore, loss of consortium damages were inappropriate. 

An appellate court will substitute its judgment for that of the jury only if there is no evidence reasonably tending to sustain the verdict or if the verdict is manifestly and palpably against the weight of the evidence.

Baker v. Amtrak Nat'l R.R. Passenger Corp., 588 N.W.2d 749, 753 (Minn. App. 1999) (citing Otterness v. Horsley, 263 N.W.2d 403, 405 (Minn. 1978)).  On this record, the jury's award was reasonable and supported by the evidence.  See Kalpin v. Helgeson, 254 N.W.2d 378, 379 (Minn. 1977) (noting that trial court's duty is to ensure that the jury's verdict is "within the bounds of reason"). 

Finally, appellants contend that the jury disregarded its duty and failed to seriously consider the issues of future damages and loss of consortium.  This argument is premised on the fact that the jury deliberated for only 25 minutes before it announced its verdict.  Appellants are raising this issue for the first time on appeal.  Because this matter was not argued and considered in the court below, we decline to consider it for the first time on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

            Affirmed.