This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Shane Conaway,



Sal-Vendor Corporation,

d/b/a Bucko's 4th & Main Bar,



Sal-Vendor Corporation,

d/b/a Bucko's 4th & Main Bar,

third-party plaintiff,



William Conaway,

third-party defendant,


Filed August 12, 1997


Davies, Judge

St. Louis County District Court

File No. C796100054

Cynthia L. Evenson, Robert C. Falsani, Falsani, Balmer, Berglund & Peterson, 1200 Alworth Bldg., 306 West Superior St., Duluth, MN 55802 (for appellant Shane Conaway)

Louis Dovre Bjorkman, Mark A. Solheim, Florence C. Humphrey, Rider, Bennett, Egan & Arundel, L.L.P., 2000 Metropolitan Centre, 333 South Seventh St., Minneapolis, MN 55402 (for respondent Sal-Vendor Corporation)

Robert H. Magie, Crassweiler, Magie, Andresen, Haag & Paciotti, P.O. Box 745, Duluth, MN 55801 (for respondent William Conaway)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Davies, Judge.



Appellant challenges the trial court's order denying a motion for additur or a new trial on damages, arguing that the verdict was legally perverse, the result of passion and prejudice, and not justified by the evidence. We affirm.


Appellant Shane Conaway and his brother William Conaway spent the afternoon and evening of June 10, 1995, drinking at respondent Sal-Vendor Corporation's bar (known as Bucko's 4th and Main Bar).[1] During an altercation later that evening or early the next morning, William Conaway "stomped" on appellant's left leg, injuring appellant's knee. Appellant subsequently brought an action against respondent, alleging that his injuries were caused by respondent's illegal sale of alcohol to his obviously intoxicated brother. Respondent brought a third-party complaint against William Conaway.

The issues of negligence and damages were tried to a jury in October 1996. The jury returned a special verdict finding respondent 40% at fault, William Conaway 35% at fault, and appellant 25% at fault. The jury also returned a verdict of $7,371 in special damages and $5,000 in general damages, but awarded no future damages.

Appellant moved for additur or a new trial on the issue of damages. The trial court denied the motion, and appellant brings this appeal. Respondent seeks review on the issue of liability.


A reviewing court will not disturb a damage award "unless its failure to do so would be shocking or would result in plain injustice." Hughes v. Sinclair Mktg. Inc., 389 N.W.2d 194, 199 (Minn. 1986). The decision "whether to grant additur rests almost wholly within the trial court's discretion." Pulkrabek v. Johnson, 418 N.W.2d 514, 516 (Minn. App. 1988), review denied (Minn. May 4, 1988).

A. Damages

The jury awarded $5,770.96 in past medical expenses, the amount stipulated by the parties. The jury also awarded $1,600.04 for lost earnings and $5,000 for pain and suffering. Appellant does not contest the lost earnings award, but argues that the jury's award for past pain and suffering was insufficient and against the weight of the evidence.

The evidence showed that, following the injury, appellant was hospitalized for two days, during which time he had surgery on his left knee and his leg was placed in a cast. He did not return to work for nine weeks. At trial, some 16 months after the injury, appellant testified that he continued to have difficulty walking and kneeling. He also complained of continuing pain in the knee area.

There was no evidence or testimony, however, that this was a "catastrophic" injury, as appellant claims. Further, appellant testified that he prematurely cut off his cast with a hacksaw, did not go through physical therapy as recommended by his doctor, and had in other ways not always followed his doctor's advice. Appellant's expert indicated that the injuries were "essentially healed." It is entirely possible that the jury inferred that appellant's complaints of continuing pain and walking difficulties were the result of his failure to follow his doctor's advice, including the recommendation for physical therapy. See Nelson v. Henning, 354 N.W.2d 35, 42 (Minn. App. 1984) (jury is in best position to evaluate evidence of plaintiff's pain, suffering, injuries, and losses), review denied (Minn. Nov. 8, 1984).

Appellant also argues that the jury's failure to award future damages was perverse and manifestly contrary to all of the evidence presented. To be awarded future medical expenses the injured party must (1) show that future medical treatment is required and (2) establish the amount of damages through expert testimony. Lind v. Slowinski, 450 N.W.2d 353, 358 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990). Appellant has not shown that future medical treatments are required, nor has he established the amount of future damages through expert testimony. Here, appellant's expert stated that he was not able to eliminate the possibility of a total knee replacement, but that "this would not appear to be certain, and would not be in the near future." He further opined that appellant's future treatment and costs were "unpredictable" and depended on appellant's lifestyle and his "compliance with medical treatment plans" and that he was "unable to estimate the cost of future medical care."

Respondent's expert did not believe that appellant would need a total knee replacement and concluded that appellant was "at no increased risk of developing degenerative arthritis" as long as appellant was careful with his knee and did not participate in any aggressive athletics or aggressive work activity without wearing his brace.

A jury verdict must be "manifestly and palpably contrary to the evidence" before it will be overturned. ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). The jury's decision to award $5,000 for pain and suffering and to award nothing for future damages is not "manifestly and palpably contrary to the evidence" and, therefore, is affirmed.

B. Misapplication of the Law

Appellant also argues that the trial court, by requiring him to provide prima facie evidence of jury misconduct, applied the wrong standard to its review of his new trial motion. Appellant's argument fails. The trial court, in its references to juror misconduct, most likely was alluding to the numerous references made by appellant's counsel, both at trial and at the motion hearing, to the idea that juries carry "anti-personal injury propaganda * * * into the jury room deliberations." The trial court was simply stating that appellant had not made such a showing and that the trial court therefore could not make a finding of jury passion or prejudice.

C. Additur

Trial courts in Minnesota cannot grant additur unless grounds exist for a new trial on damages. Pulkrabek, 418 N.W.2d at 516. Because there are no grounds here for a new trial, additur is inappropriate.

D. Liability

Respondent, on a request for review, argues that if a new trial is required, it should include all issues, including liability. Since we do not find that a new trial is warranted, we do not address this issue.


[ ]1 At trial, appellant testified that he drank between 25 and 30 Windsor Cokes at the bar that afternoon and evening. His brother testified to consuming between 30 and 40 drinks.