This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

Matthew A. Cooper,
Appellant,

vs.

Gregory Kretzman et al.,
Respondents.

Minnesota Court of Appeals #C1-95-1727
Crow Wing County District Court #C9-94-1125

May 7, 1996

Stephen R. Van Drake, Van Drake Law Office, Ltd., 2011 South Sixth Street, Brainerd, MN. 56401 (for appellant)

Criston L. Drake, Ryan, Ruttger & Drake, P.A., 217 South Fourth Street, Brainerd, MN. 56401 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Mulally, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Matthew A. Cooper appeals the district court's denial of his motion for Judgment Not Withstanding the Verdict (JNOV) and in the alternative, a new trial. Cooper argues that: (1) when it failed to grant his motion for JNOV or a new trial, alleging that the verdict was not supported by the evidence; and (2) by failing to grant his motion for JNOV or a new trial with respect to the damages issue. We affirm.

D E C I S I O N

Whether a JNOV should be granted is a question of law. Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979). A JNOV may be granted only when the evidence is so overwhelming on oneside that reasonable people cannot differ as to the proper outcome. Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983). All the evidence must be considered and viewed in the light most favorable to the verdict. Id. The reviewing court cannot weigh the evidence or assess witness credibility. Id. If conflicting, credible testimony is presented on the issues of negligence and causation, a district court does not err in denying a motion for JNOV. Pomani v. Underwood, 365 N.W.2d 286, 289 (Minn. App.1985).

I.

Cooper argues that the district court abused its discretion by failing to grant JNOV, contrary to the overwhelming evidence presented at trial in support of his claim. Cooper alleges that on July 14, 1992, while performing his duties as a meter reader for the Brainerd Power and Light Department, he received a personal injury to his right knee as a result of negligent maintenance of the stairs of rental property owned by Gregory and Kathy Kretzman. The record reveals that as a result of a fall in October 1993, Cooper aggravated this condition.

There was evidence offered at trial indicating that Cooper's injuries were the result of the natural exacerbation of a preexisting condition. The history taken by Dr. Kuusisto, the treating physician following the July 1992 incident, indicated that Cooper admitted he had previous clicking in the knee. Dr. Paul Rud also treated Cooper. A December 3, 1993, arthroscopy revealed areas of chondromalacia and a tear of the meniscus. It was Dr. Rud's opinion that Cooper's torn medial meniscus and the worsening of his pre-existing arthritic condition resulted from the July 1992 fall.

Dr. Nolan Segal examined Cooper and found a normal range of motion, and small effusion on the right knee, with patellar femoral crepitus. Dr. Segal determined that Cooper had a permanent disability to his right knee, and he apportioned 70 percent to a pre-existing condition and 15 percent to the July 14, 1992, incident and 15 percent to the October 1993 incident.

The jury found Kretzman negligent, but found that this negligence was not a cause of Cooper's injury. The existence of conflicting evidence alone will not sway this court toward finding district court error. See Nadeau v. County of Ramsey, 277 N.W.2d 520, 522 (Minn. 1979) (stating that a reviewing court should not grant JNOV unless "the evidence is practically conclusive against the verdict and reasonable minds can reach only one conclusion"). The fact that there was evidence offered in support of Kretzman's contention that Cooper's injuries were degenerative in nature and not caused by his negligence is enough to support the jury's verdict. Cf. Diessen v. Hessburg, 455 N.W.2d 446, 452 (Minn. 1990) (holding that the district court did not err in granting JNOV when there was absolutely no evidence supporting the jury's verdict). Because it is not the province of appellate courts to second-guess the jury's findings of fact, we hold that the district court did not err in denying Cooper's motions for JNOV or new trial.

II.

The impairment of earning capacity is an item of general damages that does not require specific proof of actual earnings or income either before or after the injury. Wilson v. Sorge, 256 Minn. 125, 130, 97 N.W.2d 477, 482 (Minn. 1959). Because future damages of this nature are impossible to prove with absolute certainty, the rule is that recovery may be had if future damage is reasonably certain to occur. Carpenter v. Nelson, 257 Minn. 424, 428, 101 N.W.2d 918, 921 (Minn. 1960). Therefore, it is error for the jury to speculate about what the loss would be. Sturlaughon v. Renville Farmers Limber Co., 295 Minn. 334, 337, 204 N.W.2d 430, 432 (Minn. 1973). An award for impairment of earning capacity should be based on an evaluation of such factors as age, life expectancy, health, occupation, talents, skill, experience, and training. Young v. Hansen, 296 Minn. 430, 434, 209 N.W.2d 392, 395 (Minn. 1973) (citation omitted).

Cooper argues that the district court abused its discretion by failing to grant post-trial relief with respect to the jury's determination that loss of earning capacity was not warranted in this case. In support of his argument, Cooper cites Kwapien v. Starr, 400 N.W.2d 179 (Minn. App. 1987).

In Kwapien, respondent was involved in an auto accident that resulted in a number of serious injuries. Id. at 181. At trial there was testimony that appellant's negligence was the direct cause of respondent's injuries and that respondent had suffered a 10 percent permanent disability to her neck as well as a 5 percent permanent disability to her upper extremities. Appellant's expert medical witness testified that no permanent impairment existed. Id. The jury awarded $15,000 to appellant to compensate her for loss of future earnings. Id. at 182. This court affirmed.

The distinction between Kwapien and this case is that here the jury found there was no causal connection between Kretzman's negligence and Cooper's current physical condition. Negligence must be the direct cause of the injury to support a loss of future earnings award. See Lutz v. Lilydale Grand Central Corp., 250 N.W.2d 599, 600 (Minn. 1977) (holding that damages were properly awarded where defendant's negligence caused the plaintiff's injury).

The record reveals that it is questionable whether Cooper has established by a fair preponderance of the evidence the extent to which an impairment of earning capacity is likely to occur. See Busch v. Busch Construction Co., 262 N.W.2d 377, 399-400 (Minn. 1977) (stating that "without at least some evidence of lost earning capacity, the jury should not be allowed to consider it as a potential basis for their verdict). There was testimony offered at trial showing that Cooper is actually making more money now, as a result of his training in computer science, than he did prior to the accident. There is ample support in the record to support the jury's denial of Cooper's claim for any loss of future earning capacity.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.