This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Joanne M. Carlson,





Tracy R. Jackman,



Filed October 16, 2001

Klaphake, Judge


St. Louis County District Court

File No. C800600116


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


Robert C. Barnes, Dianne Bouschor Dodge, Andresen, Haag, Paciotti, & Butterworth, P.A., 1000 Alworth Building, Box 745, Duluth, MN  55801-0745 (for respondent)


            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Joanne M. Carlson brought this personal injury suit against respondent Tracy Jackman after a vehicle driven by respondent struck her.  Following a two-day trial, the jury found appellant 75% at fault and respondent 25% at fault.

            Appellant moved for a new trial, challenging (1) the admission of a statement she made in the emergency room and included in the hospital record, that she was “running” across the street when she was hit; and (2) the sufficiency of the evidence to support the jury’s findings that she was entitled to no damages for future pain, suffering, or medical expenses.  Because the jury’s findings on liability are amply supported by properly admitted evidence, appellant is not entitled to a new trial.  We therefore affirm.


            A district court’s decision to deny a new trial motion is within its sound discretion and will not be disturbed on appeal absent a clear abuse of that discretion.  Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 790 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).  When a new trial is sought on the ground that the verdict is not justified by the evidence, the verdict will stand unless it is “manifestly and palpably contrary to the evidence viewed as a whole and in the light most favorable to the verdict.”  Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999) (quotation omitted).

            Appellant argues that the jury’s verdict was perverse because it failed to award her any damages for future pain and suffering or future medical expenses.  Where a jury has found against a plaintiff on liability and that finding is supported by credible evidence, the failure to award damages is not prejudicial and will not warrant a new trial.  Wefel v. Norman, 296 Minn. 506, 507-08, 207 N.W.2d 340, 341 (1973) (jury’s failure to award damages did not require new trial, where jury’s finding that plaintiffs were 100% negligent was supported by ample evidence).

            Here, credible evidence reasonably supported the jury’s findings that appellant was 75% at fault and respondent was 25% at fault.  That evidence established that on a dark and rainy night in April 1997, appellant was standing in the doorway of a bar, waiting to cross the street.  When the traffic light turned green, she left the doorway, looked left and right, but not behind her, and started to cross the street when she was struck by respondent, who was making a left-hand turn onto the street.  Respondent testified that she had been waiting at the light for approximately one minute before it turned green, that she did not see appellant until she was in front of the car, and that she braked immediately.

            Although appellant claimed at trial that she was not running across the street, her companion told a police officer that she was running and appellant approved the companion’s account to the officer as he read it to her later in the emergency room.[1]  Respondent also testified that she thought appellant was running because it “happened so fast.”

            Given this evidence, the jury could reasonably find that appellant was 75% at fault.  Thus, even if the jury’s findings regarding future damages were unsupported by the evidence, which they are not, appellant would not be entitled to a new trial.[2]


[1]  The emergency room records also include a statement by appellant that she was “running across the street” when the car hit her.  Because the same statement was properly admitted as part of the police officer’s testimony and report, any error in the admission of the statement in the hospital record was harmless and did not prejudice appellant.  See Minn. R. Civ. P. 61 (setting out harmless error rule).


[2]  The jury’s findings regarding future damages are also supported by the evidence.  Admittedly, appellant sustained what her doctor described as “permanent” injuries, including a fractured right knee that required surgery and a rotator cuff injury that required physical therapy.  Although she continues to have difficulty lifting boxes and navigating stairs, and no longer golfs or bowls, she was able to return to her full-time secretarial job, has not sought medical treatment since October 1997, and takes no pain medications.  Given this, the jury was entitled to find that she failed to prove future damages to a reasonable certainty, or that such damages are “more likely to occur than not to occur.”  Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980).