This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
James L. Weckman and Jennifer
L. Weckman, individually and as parents
and natural guardians of J.J.W., a minor,
Randall J. Weckman,
Filed June 20, 2000
Hennepin County District Court
File No. PI9884
Stephen S. Eckman, Thomas F. Handorff, Eckman, Strandness & Egan, 200 East Lake Street, Wayzata, MN 55391 (for respondents)
Jack D. Moore, Jack D. Moore & Associates, Two Pine Tree Drive, Saint Paul, MN 55112 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
A jury found appellant Randall Weckman negligent in a boating accident. He challenges the district court’s denial of his motion for judgment notwithstanding the verdict and denial of his motion for a new trial on damages, or, in the alternative, remittitur. We affirm.
On September 6, 1993, appellant Randall Weckman took eight passengers on a boat outing on Lake Minnetonka. The passengers included appellant’s nephew James Weckman; James’s wife, Jennifer Weckman; and James’s and Jennifer’s 11-month-old son, J.J.W., who are respondents here. Before leaving the public dock in Excelsior, appellant placed the boat’s anchor on a swimming platform mounted on the stern of the boat. The 20-pound drag anchor was attached to the boat with a nylon rope that was tied off on a cleat mounted to the stern. There was a length of approximately 12 to 14 feet of rope between the cleat and the anchor, and the rope was coiled and placed on the swimming platform along with the anchor.
While appellant was operating the boat in a no-wake zone, in which boats may travel no faster than five miles per hour, the anchor flew into the boat hitting J.J.W. on the left side of the head. He was taken to the hospital, where surgery was performed.
Respondents filed an action for negligence in April 1997, and the case was tried to a jury in February 1999. At trial, appellant testified that he was traveling 15 miles per hour in the no-wake zone when the accident occurred. Appellant’s son, Jacob Weckman, who also was a passenger on the boat, testified that the boat was traveling at or just above trolling speed. Respondent James Weckman testified that he did not believe that appellant’s speed was excessive, and respondent Jennifer Weckman testified that she was not aware of any driving conduct by appellant that contributed to the accident.
Respondents’ liability expert, Sergeant Kenneth Schilling of the Water Patrol Division of the Hennepin County Sheriff’s Department, testified that, in his opinion, the boat hit a large wake, causing the bow to rise and then fall. He testified that when the bow fell, the stern was forced upward, catapulting the anchor into the boat (the “teeter-totter” theory). Consistent with this theory, Jacob Weckman testified that when he first saw the anchor, it was moving upward, 10 to 15 feet behind the boat, with the rope taut. Appellant testified that he saw the anchor come “from the back of boat” and it was “straight up and coming straight down.”
Robert Kriel, M.D., a pediatric neurologist, and Thomas Beniak, Ph.D., a clinical psychologist specializing in neuropsychological testing, testified at trial on behalf of respondents. Appellant submitted the deposition testimony of Lawrence Burstein, M.D., a pediatric neurologist, at trial.
Dr. Kriel testified that J.J.W. sustained a skull fracture and an injury to the left parietal area of the brain, causing the loss of a grape-sized portion of brain tissue. Dr. Kriel also testified that J.J.W. is ten times more susceptible to future seizures than he would be absent the head injury, and the likelihood of future seizure activity could greatly impact J.J.W.’s employability. Dr. Beniak testified that (1) J.J.W. has a “handedness” problem that causes him confusion about which hand he should use for different tasks and which foot he should use for kicking; (2) he attributes J.J.W.’s handedness problem to ongoing cerebral reorganization caused by the injury; and(3) J.J.W.’s intellectual capacity falls within the lower end of the range considered average for a child of his age and that J.J.W. has and will have ongoing problems with developing basic language functions, perceptual motor skills, visuoconstructional abilities, and visual-motor integration.
After a four-day trial, the jury found appellant negligent and awarded respondents $582,427.94 in damages. The jury awarded $22,427.94 for past medical expenses, $30,000 for future medical expenses, $30,000 for past general damages, and $500,000 for future general damages.
Appellant brought posttrial motions for a judgment notwithstanding the verdict (JNOV) on the issue of negligence and for a new trial on the issue of damages or, in the alternative, for remittitur. The district court denied appellant’s motions but awarded appellant an offset of $12,043.40 against the award of past medical expenses to reflect payments already made by appellant’s insurance company. This appeal follows.
The district court denied appellant’s motion for JNOV on the issue of negligence. This court reviews de novo the district court’s denial of a motion for JNOV. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). Appellate courts must affirm a district court’s denial of JNOV
if there is any competent evidence reasonably tending to sustain the verdict. “Unless the evidence is practically conclusive against the verdict, [an appellate court] will not set the verdict aside.”
Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984) (quoting Sandhofer v. Abbott-Northwestern Hosp., 283 N.W.2d 362, 365 (Minn. 1979)). The evidence must be viewed in the light most favorable to the prevailing party. See Pouliot, 582 NW.2d at 224.
Appellant argues that the district court erred in denying his motion for JNOV because it was not reasonably foreseeable that injury could result from operating a boat at low speed with an anchor resting on the swimming platform. But respondent’s expert, Sergeant Schilling, testified that there are other ways, in addition to the “teeter-totter” theory, in which allowing an anchor to rest on the swimming platform of a moving boat could result in personal injury: (1) the rope attached to the anchor could fall into the water and get caught on the propeller, either bringing the boat to a sudden stop or causing a loss of steering capability; or (2) the anchor could drop to the bottom of the lake and bring the boat to a sudden stop. Appellant offered no contrary expert testimony on the danger of allowing an anchor to rest on the swimming platform of a moving boat. And appellant testified that while he would normally store the anchor inside of the boat, under the back seat, he did not do so on this occasion because he was only going a short distance, he was not traveling fast, and he did not think it was a hazard. Appellant also testified that he was going 15 miles per hour in a no-wake zone, in which boats may travel no faster than five miles per hour.
In Minnesota, “[f]oreseeability of injury is not dependent upon a defendant’s actual notice of the particular method in which the accident occurs, but rather ‘the possibility [that] an accident was clear to the person of ordinary prudence.’” Van Gordon v. Herzog, 410 N.W.2d 405, 408 (Minn. App. 1987) (quoting Connolly v. Nicollet Hotel, 254 Minn. 353, 381-82, 95 N.W.2d 657, 664 (1959) (emphasis added)). Thus, while appellant may not have foreseen the particular way in which this accident occurred, he is negligent if a person of ordinary prudence would have recognized the possibility that an accident could occur from operating a boat at 15 miles per hour in a no-wake zone with an anchor resting on the swimming platform. There was sufficient evidence presented that the jury could reasonably conclude that appellant was negligent. Therefore, the district court did not err in denying appellant’s motion for JNOV.
Appellant argues that the district court abused its discretion in denying his motion for a new trial on the issue of damages or, in the alternative, remittitur of total damages to $300,000. Appellant argues that the evidence does not justify the jury’s awards of $30,000 for future medical expenses and $500,000 for future general damages.
A new trial on the issue of damages is warranted when the verdict is so excessive that it could have been rendered only because of passion or prejudice. Schendel v. Hennepin County Med. Ctr., 484 N.W.2d 803, 809 (Minn. App. 1992), review denied (Minn. July 16, 1992). But this court will not reverse the district court’s denial of a motion for a new trial on damages in the absence of a clear abuse of discretion. LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 328 (Minn. 1977). Likewise, if the district court carefully examines the verdict and explains its decision, this court will not overturn the court’s denial of a posttrial motion for remittitur in the absence of a clear abuse of discretion. Kamrath v. Suburban Nat’l Bank, 363 N.W.2d 108, 112 (Minn. App. 1985). Remittitur may be granted if an excessive verdict has been given as a result of passion and prejudice or if the evidence does not justify the damages awarded. Kwapien v. Starr, 400 N.W.2d 179, 184 (Minn. App. 1987).
Appellant contends that the only evidence of future medical expenses is Dr. Beniak’s testimony that J.J.W. should have one or two neuropsychological evaluations while he is in elementary school and evidence that the cost of the neuropsychological evaluation done in July 1998 was $1,687.44. Appellant argues that based on this evidence, only $3,400 in future medical expenses is reasonably supported by the evidence.
The district court, however, concluded that the testimony of respondents’ medical experts “provided substantial evidence to allow the jury to conclude a reasonable value of medical expenses and future general damages that are reasonably certain to be experienced by [J.J.W.] in the future.” In addition to evidence of the cost of the neuropsychological evaluations, the record shows that (1) J.J.W.’s medical expenses totaled $22,427.94 during the five and one-half years between the accident and trial; (2) J.J.W. suffers from posttraumatic epilepsy, he has had two or three seizures in the past, and he is susceptible to future seizures; (3) J.J.W. is currently experiencing “starring spells”; (4) seizure activity is at its greatest during certain stages in life, such as puberty and old age, which J.J.W. has not yet experienced; (5) J.J.W. has a life expectancy of 67.1 years; and (6) if J.J.W. experiences seizures in the future, he will require monitoring, testing, and possibly medication.
Appellant argues that because there was no other evidence as to the dollar amount of future medical treatment, the amount of the award in excess of $3,400 was based on speculation and is not justified by the evidence. In Lamont v. Independent School District No. 395, 278 Minn. 291, 154 N.W.2d 188 (1967), the supreme court stated:
[a]lthough we have permitted an award for loss of future earning capacity in situations where the jury is competent to assess the likelihood of plaintiff's diminished productivity, we have not allowed future medical expenses without an estimate of what they might be. This is a matter which the jury cannot compute blindly without expert testimony. It cannot be left to their speculation.
Id. at 295, 154 N.W.2d at 192 (footnotes omitted). Thus, the jury may not award an amount based simply on a showing that expenses are likely to occur. The plaintiff must also present some evidence of what the expenses will be. Sturlaugson v. Renville Farmers Lumber Co., 295 Minn. 334, 337, 204 N.W.2d 430, 432 (1973).
From the evidence presented here, the jury could reasonably conclude that J.J.W. will have future medical expenses in the amount awarded. While there was no testimony precisely calculating J.J.W.’s future medical expenses, it was possible for the jury to consider his life expectancy and the cost of his treatment to date to arrive at an award of future medical expenses. See Kwapien, 400 N.W.2d at 184 (upholding jury award of future medical expenses where evidence supporting award included plaintiff’s life expectancy, testimony that plaintiff would require life-long physical therapy, and cost of past physical-therapy treatments). Because there is a reasonable basis for the jury’s conclusion that J.J.W.’s future medical expenses will be $30,000, the verdict was not based on mere speculation. The district court’s refusal to grant a new trial or remittitur on the issue of future medical expenses was not an abuse of discretion.
Appellant further argues that the evidence does not support the jury’s award of $500,000 for future general damages and that the district court erred in failing to reduce this award by $250,000. Appellant claims that a reduction in damages is justified because J.J.W. is doing quite well considering the severity of his injury; the record shows that J.J.W. is able to engage in normal activities, such as riding a bicycle and a motor scooter; and J.J.W.’s pre-school and kindergarten teachers have voiced no concerns about his behavior or cognitive abilities.
But the record also shows that J.J.W. has sustained permanent injuries, is scarred for life, and is likely to have future medical and neuropsychological problems. In addition to the evidence discussed above, the record shows that (1) J.J.W. has lost brain tissue, which does not regenerate; (2) J.J.W. has a scar approximately one-half inch in width that runs the length of one side of his head; (3) J.J.W. has problems with language development, verbal comprehension, and visual-motor/perceptual-motor integration; (4) J.J.W. will probably have ongoing problems with language acquisition, reading, writing, perceptual motor skills, and arithmetic; these problems will increase as his curricula become more challenging; and (5) J.J.W.’s injury will likely affect his employability and earning prospects.
Impairment of future earning capacity is an item of general damages. Wilson v. Sorge, 256 Minn. 125, 132, 97 N.W.2d 477, 483 (1959). In arriving at a monetary value for a loss or diminution of future earning capacity the jury should weigh factors including, but not limited to, the plaintiff’s age, life expectancy, health, habits, talents, and skill. Id. J.J.W. was six at the time of trial, and evidence was introduced that his life expectancy is 67.1 years. Given that the jury had to assess damages over a 61-year span and had to consider that J.J.W. is reasonably expected to have difficulty with his education and employment, the verdict is not contrary to the evidence as whole and does not appear to have been rendered because of passion or prejudice. The district court’s refusal to grant a new trial or remittitur on the issue of future general damages was not an abuse of discretion.