This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-95-2210

James Edward Sokol, et al.,

Appellants,

vs.

Bryan Arthur Bahr, et al.,

Respondents.

Filed June 4, 1996

Affirmed

Davies, Judge

Washington County District Court

File No. C9934978

Kathleen O'Connor, David O'Connor, O'Connor & O'Connor, Ltd., 1500 Capital Centre, 386 N. Wabasha St., St. Paul, MN 55102 (for Appellants)

Louise Dovre Bjorkman, Stephen K. Warch, Rider, Bennett, Egan & Arundel, L.L.P., 2000 Metropolitan Centre, 333 S. Seventh St., Minneapolis, MN 55402 (for Respondents)

Patrick M. Flynn, American Family Insurance, P.O. Box 64885, St. Paul, MN 55164 (for Respondents)

Considered and decided by Davies, 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

DAVIES, Judge

Appellants in this personal injury action seek reversal of the trial court's denial of their alternative motions for JNOV or a new trial, arguing that the jury's special verdict answers (finding negligence, but no causation, and finding no permanent injury) are inconsistent and contrary to the evidence. We affirm.

FACTS

This action arises out of a December 1992 motor vehicle accident between appellant James Sokol and respondent Bryan Bahr. The accident occurred at the base of a hill on a two-lane paved road. By all accounts, the road's surface was extraordinarily icy.

Bahr testified that, to accommodate the road conditions, he was driving only 10-15 miles per hour when he came over the crest of the hill. He claims that, as he descended the hill, his vehicle did not respond to either steering or braking. Rather, it slid down the hill across the center of the road and into Sokol's vehicle.

Sokol testified that he too had reduced his speed--to between five and ten miles per hour--because of the slippery road conditions. When Sokol recognized that Bahr's approaching vehicle was out of control, he attempted to turn his vehicle. It did not respond, and the vehicles collided.

Bahr's automobile was totaled and the damage to Sokol's pick-up truck was in excess of $5,000. Sokol claims to have sustained injuries to his neck and back. His wife, appellant Sylvia Sokol, alleges loss of consortium.

A jury found Bahr negligent, but also found that his negligence did not directly cause the accident and that Sokol had no permanent injuries. Based on this verdict, the trial court entered judgment in favor of Bahr.

The Sokols brought alternative motions for judgment notwithstanding the verdict (JNOV) or a new trial. The trial court, finding that the evidence sustained the verdict, denied the motions. The Sokols appeal the denials.

D E C I S I O N

On review of the 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, 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. April 29, 1992).

The standard for reviewing a JNOV denial is also extremely stringent.

Unless we are able to determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict, the trial court's order denying the motion for judgment notwithstanding the verdict should stand.

Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).

I. Causation

The Sokols claim that the evidence at trial compels a finding that Bahr's negligence was a proximate cause of the accident and that the jury's special verdict finding to the contrary must be overturned as irreconcilable.

An answer to a special verdict question will be set aside "only when it is perverse and palpably contrary to the evidence." Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn. 1984).

The test is whether the answers [to the special verdict questions] can be reconciled in any reasonable manner consistent with the evidence and its fair inferences.

Reese v. Henke, 277 Minn. 151, 155, 152 N.W.2d 63, 66 (1967); see also Lutterman v. Studer, 300 Minn. 507, 510, 217 N.W.2d 756, 759 (1974) (quoting test from Reese); Covey v. Detroit Lakes Printing, 490 N.W.2d 138, 142 (Minn. App. 1992) (same); Buttz v. Bergeson, 392 N.W.2d 917, 920 (Minn. App. 1986) (same). The trial court refused to set aside the jury's answers to the special verdict, ruling that because of the weather and road conditions the jury could have found that Bahr's negligence was not a direct cause of the collision.

The Sokols claim that this theory is not supportable, given Weber by Otten v. Gates, 477 N.W.2d 916 (Minn. App. 1991), review denied (Minn. Jan. 30, 1992). In Weber, a child was hit by a car. Id. at 917. The jury returned a special verdict finding that the car's driver was negligent but that his negligence did not directly cause the accident. Id. This court was "unable to conceive of any reasonable basis for the jury's determination" that the driver's negligence did not directly cause the child's injuries. Id. at 918.

In this case, however, there is a logical cause for the accident other than Bahr's negligence. Bahr and Sokol both testified that the road was extremely icy. The jury might reasonably have viewed the accident as unavoidable, regardless of Bahr's negligence.

We disagree with the Sokols' suggestion that Weber stands for the proposition that, to be a reasonable basis for a jury's decision, the reason (e.g., unavoidable accident) must have been presented as a jury instruction. The Sokols' interpretation directly contradicts the long-standing rule from Reese that special verdict answers must be "reconciled in any reasonable manner consistent with the evidence and its fair inferences." 277 Minn. at 155, 152 N.W.2d at 66 (emphasis added).

The Sokols cite several other cases to support the assertion that this court can substitute its judgment for that of the jury. Those cases are distinguishable, for, unlike the present case, they all involve accidents that were avoidable but for the defendants' negligence. See May v. Lemmon, 287 Minn. 158, 177 N.W.2d 298 (1970) (accident would not have happened but for defendant's failure to maintain proper control, following too closely, or going too fast); Strandjord v. Exley, 287 Minn. 145, 177 N.W.2d 48 (1970) (accident would not have occurred but for both parties' negligence); Risacher v. Lien, 279 Minn. 58, 155 N.W.2d 382 (1967) (accident would not have occurred but for defendant's failure to take protective action); Reese, 277 Minn. 151, 152 N.W.2d 63 (accident would not have happened but for defendant's failure to maintain proper lookout, control, or speed); Sjaastad v. Dunsmore, 274 Minn. 50, 142 N.W.2d 282 (1966) (accident would not have happened but for both parties' negligence).

II. Damages

The Sokols claim that the jury's finding of no permanent neck injury and no future damages is so contrary to the evidence (namely, expert opinion) that a new trial is required on the issue of damages.

"Generally, the opinions of experts are only advisory. It is opinion, not demonstrable fact, that they are submitting." Ruppert v. Yaeger, 414 N.W.2d 419, 422 (Minn. App. 1987) (citing State v. Shirk, 253 Minn. 291, 293-94, 91 N.W.2d 437, 438-39 (1958)). This is particularly true where an expert's diagnosis is based on subjective complaints. See Hennen v. Huff, 388 N.W.2d 408, 412 (Minn. App. 1986) (damage award upheld where diagnosis was based on subjective findings and there were conflicts in medical testimony), review denied (Minn. Aug. 13, 1986).

In this case, two doctors testified. Both Sokol's doctor and Bahr's adverse examiner testified that in their opinions, which were based largely on Sokol's subjective complaints, Sokol's neck injury is permanent and is related to the car accident. But the jury, in determining the extent of the injuries caused by the accident, was entitled to consider all of the evidence--not just the doctors' testimony. By refusing to find a permanent neck injury and future damages, the jury apparently disbelieved Sokol's subjective complaints and the doctors' opinions, which were based legally on those complaints. It was within the jury's discretion to do so and we will not second-guess that evaluation.

Affirmed.