Pulkrabek v. Johnson

418 N.W.2d 514, 1988 Minn. App. LEXIS 23, 1988 WL 6109
CourtCourt of Appeals of Minnesota
DecidedFebruary 2, 1988
DocketC7-87-1881
StatusPublished
Cited by9 cases

This text of 418 N.W.2d 514 (Pulkrabek v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pulkrabek v. Johnson, 418 N.W.2d 514, 1988 Minn. App. LEXIS 23, 1988 WL 6109 (Mich. Ct. App. 1988).

Opinions

OPINION

SEDGWICK, Judge.

In this action for damages caused by a dog bite, appellant Adrian Pulkrabek challenges the sufficiency of the damages awarded him. Respondent Roger Johnson seeks review of the trial court’s grant of conditional additur. We reverse the grant of additur.

FACTS

On April 1, 1985, Pulkrabek was petting Johnson’s labrador retriever when the dog suddenly bit his upper left lip. Pulkrabek was then a sixteen-year-old high school student, and he was visiting Johnson’s son.

Since Johnson admitted liability, trial was on damages only. Pulkrabek did not seek or introduce evidence of special damages, which he claims were $1,288, because of the collateral source statute. Minn.Stat. § 548.36 (1986). The following evidence was offered on the issue of general damages.

After being bitten, Pulkrabek was taken to a hospital, where a plastic surgeon repaired his lip by administering local anesthesia and suturing the upper lip to the skin. Dr. Lamb, another plastic surgeon, testified the laceration went entirely through the lip, creating a horizontal, oval-shaped defect, approximately two and one half by two centimeters, where the upper [515]*515lip meets the skin. Pulkrabek described the missing piece as being the size of a quarter, and his father testified it was about the size of a thumbnail.

The wound required local care over the next several months. It healed but left a “defect”: a thinning of the lip and a scar. In October 1986, Dr. Lamb successfully performed a surgical revision of the defect to improve the lip’s appearance. A lump on the inside of the upper lip was reduced and the outer lip realigned.

Dr. Lamb performed follow-up treatments over the next nine months. He believes “the result was quite satisfactory but [Pulkrabek] still has a scar that is conspicuous or slightly conspicuous of the left upper lip.” Dr. Lamb defined a conspicuous scar as one “that would be readily observed to casual observation at a conversational distance of about three feet.” Dr. Lamb believed Pulkrabek would not have trouble with his lip’s functioning if he doesn’t require “special use” of it, but he may have a “little bit of numbness in the midline” of the lip.

Pulkrabek testified his lip felt numb when it was bit and he did not start to feel pain until the novocaine wore off after the first treatment. He continued to have pain, swelling and difficulty eating and sleeping for two weeks after the bite.

Pulkrabek had about the same amount of difficulties after the surgical revision. He can still feel a lump on the inside of his lip with his tongue. He does not feel pain or have difficulty eating now.

During the school year after the bite, before the surgical revision, he felt “somewhat” self-conscious of the scar. His classmates and parents would stare at it, making him uncomfortable. Since the revision, Pulkrabek feels that when he meets strangers they focus on the scar, and that his parents do so as well. His father testified the scar bothers Pulkrabek and he often subconsciously puts his hand to his lip. His mother testified that he now smiles self-consciously.

The jury awarded Pulkrabek $1000 in damages for past embarrassment, emotional distress, pain and disfigurement. It awarded him no future damages.

Pulkrabek moved for additur or a new trial. The trial court denied the motion for new trial conditioned on Johnson’s accepting additur of $4000 in past damages, which he did. The court explained its reasoning in a memorandum:

Court agrees with counsel for the plaintiff that the jury verdict herein was conservative although the Court can understand the jury’s reasoning that plaintiff had a good recovery and the remaining small scar on plaintiff’s upper lip is not particularly disfiguring. One could speculate that had the plaintiff been a female, the jury perhaps would have been a bit more generous. The Court is in effect substituting its judgment for that of the jury by granting additur and given the lack of definitive guidelines to determine damages, admittedly the Court’s values are the product of guesswork the same as the jury’s.

Judgment for $5000 was entered for Pul-krabek. He appeals from the judgment and seeks a new trial on damages. Johnson noticed review, seeking reversal of the additur and reinstatement of the verdict.

ISSUE

Did the trial court err in denying appellant’s motion for a new trial conditioned on respondent’s consenting to additur of $4000?

ANALYSIS

Generally, a new trial on damages will be granted only where the verdict 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); Minn.R. Civ.P. 59.01(5). Pulkrabek argues he was entitled to a new trial based on this standard, and also because the verdict was “not justified by the evidence.” Minn.R.Civ.P. 59.01(7); see Lesewski v. Nielsen, 254 Minn. 286, 289, 95 N.W.2d 13, 16 (1959) (stating new trial can be granted based on subdivision 7 as well as subdivision 5). He [516]*516implicitly contends the additur did not cure the award’s alleged inadequacy.

Johnson contends that the verdict was adequate under rule 59.01, and so the trial court erred by granting conditional additur rather than denying the motion for new trial. Johnson would not be able to challenge the additur if Pulkrabek had not appealed. See Jangula v. Klocek, 284 Minn. 477, 488, 170 N.W.2d 587, 594 (1969) (plaintiff may notice review of remittitur despite his consent to it where defendant appeals from judgment).

A trial court has the broadest possible discretion to determine whether a new trial should be granted based on an inadequate award of damages. Parr v. Cloutier, 297 N.W.2d 138, 140 (Minn.1980). Its decision will not be reversed “absent a clear abuse of that discretion and the existence of the most unusual circumstances.” Id. Similarly, whether to grant additur rests almost wholly within the trial court’s discretion. Krueger v. Knutson, 261 Minn. 144, 154, 111 N.W.2d 526, 535 (1961).

Such discretion, however, has limits. The question of damages is essentially an issue of fact for the jury to decide. State v. Frisby, 260 Minn. 70, 74, 108 N.W.2d 769, 772 (1961) (affirming denial of new trial despite “conservative” verdict). The jury’s decision is entitled to wide deference as long as it is within the range of reasonable awards. See Buttz v. Bergeson, 392 N.W.2d 917, 920 (Minn.Ct.App.1986); Nelson v. Henning, 354 N.W.2d 35, 42 (Minn.Ct.App.1984).

In Sieren v. American Family Financial Services, 356 N.W.2d 408

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Pulkrabek v. Johnson
418 N.W.2d 514 (Court of Appeals of Minnesota, 1988)

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Bluebook (online)
418 N.W.2d 514, 1988 Minn. App. LEXIS 23, 1988 WL 6109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pulkrabek-v-johnson-minnctapp-1988.