STATE OF MINNESOTA

IN COURT OF APPEALS

A05-192

Douglas J. Ward, by and through his

parent and natural guardian, Mary E. Ward,

and Mary E. Ward, individually,

Appellants,

vs.

Francis A. Freiderich, et al.,

Respondents.

Filed January 10, 2006

Affirmed

Stoneburner, Judge

Dakota County District Court

File No. C9039100

Josh A. Cooner, Cooner Law Offices, Box 25755, Woodbury, MN 55125 (for appellants)

Robert W. Vaccaro, Flynn, Gaskins & Bennett, LLP, 333 South Seventh Street, Suite 2900, Minneapolis, MN 55402 (for respondents)

Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellants, an injured child and his mother, challenge the district court’s denial of their motion for a new trial in this dog-bite case. Appellants contend that the verdict was grossly inadequate given the extent of injuries sustained and must be the result of a compromise attributable to the district court’s erroneous submission of the issue of provocation to the jury. Because appellants have waived the claim that the damages were inadequate, and submission of the issue of provocation to the jury was not error, we affirm.

FACTS

Eleven-year-old appellant Douglas Ward (DJ), who was playing at his friend Tony Friederich’s house, was bitten in the face by the Friederichs’ dog, Grizzly. Only the boys witnessed the incident, and each had a different version of what occurred. According to DJ, he and Tony watched television in the Friederichs’ living room, and then Tony started playing a video game. DJ was sitting on a recliner, Tony was on the couch, and Grizzly was lying on the floor between them. Tony finished his turn, stood up, and started to hand the game controller to DJ. DJ testified that as he reached for the controller, “[t]he dog came up and bit me . . . .” Grizzly bit DJ in the face. DJ punched the dog to get him away, and Tony tried to pull the dog off.

According to Tony, as he played the video game, DJ got Grizzly’s favorite toy and began to play with Grizzly. Tony testified that DJ was teasing Grizzly by waving the toy in front of Grizzly’s face and then taking it away. Tony told DJ not to play with Grizzly because Grizzly is “really offensive about his toys.” But DJ continued to play with Grizzly. Tony said that DJ was holding the toy and waving it in front of DJ’s face, causing Grizzly to jump up at the toy. At some point, according to Tony, DJ held the toy too close to his face and the dog went for the toy and accidentally caught hold of DJ’s face. Tony said the dog did not bite or attack DJ, but accidentally ran into DJ’s face with his teeth.

DJ called his mother, appellant Mary Ward, on the telephone after Tony confined the dog in a bathroom. Mary Ward rushed DJ to a hospital where doctors performed surgery to repair his face using many multilayered stitches to close the wounds.

DJ and his mother sued respondents, Francis A. and Sherri Freiderich (Tony’s parents and Grizzly’s owners) under Minn. Stat. § 347.22 (2004). The district court denied appellant’s motion for summary judgment on liability concluding that there were disputed issues of fact regarding provocation. On the morning of trial, appellants moved to exclude admission of any evidence in support of a provocation defense. The district court denied the motion concluding that the issue was one of credibility for the jury.

Appellants also moved in limine to preclude introduction of DJ’s medical records except for those relating to the dog bite, and to preclude introduction of DJ’s school records, as irrelevant. Respondents argued that medical records showing DJ’s problems with ADHD and impulsivity bolstered Tony’s version that DJ was warned not to play with Grizzly but disregarded the warning and behaved impulsively. Respondents argued that the school records were relevant to Mary Ward’s claim that DJ had more problems at school after the incident. The district court denied the motion in limine, and allowed introduction of some of the medical and school records over appellants’ renewed objection to relevancy.

The district court instructed the jury that, “Provoke means to excite, to stimulate, to arouse, to irritate, or enrage.” Shortly after deliberations began, the jury requested a dictionary. The district court denied the request. The jury then asked, “Question Number Two: Would you please have additional clarification on the word ‘provoke’ other than what is in the notes? We see two different meanings.” In response, the district court submitted additional definitions for the word “provoke.” The additional definitions were:

Provoke . . . 1. To incite to anger or resentment. 2. To stir to action or feeling. 3. To give rise to; evoke. . . . 4. To bring about deliberately; induce. . . .

Provoke . . . 1: to incite to anger 2: to provide the needed stimulus for . . .

Provoke 1: call forth . . . 2: call forth . . . 3: provide the needed stimulus for . . . 4: annoy continually or chronically . . .

The jury then asked, “If we decide that [DJ] did in fact provoke Grizzly, could we as a jury award injuries nonetheless to the Wards?” In response, the district court instructed the jury that if they found that DJ provoked the dog, he would receive nothing in damages. After several hours of deliberation, the jury returned a verdict finding that DJ did not provoke Grizzly and awarding $4,000 for DJ’s past pain, disability, and disfigurement; $2,000 for past embarrassment and emotional distress; the stipulated amount of past medical expenses; and nothing for future pain, disability, disfigurement, embarrassment, and emotional distress. Appellants moved for a new trial arguing that the award of damages was inadequate and not justified by the evidence, and that errors of law, namely improper submission of the provocation defense to the jury, led the jury to enter a “compromise” verdict. The district court denied the motion, and this appeal followed.

D E C I S I O N

I. Evidentiary issues not preserved for appeal

Appellants argue that the district court abused its discretion by admitting irrelevant medical and school records. But “evidentiary rulings are not reviewable where error is not alleged in a motion for new trial even though timely objection was made at trial.” Waseca Sand & Gravel, Inc. v. Olson, 379 N.W.2d 592, 595-96 (Minn. App. 1985). Evidentiary rulings are subject to appellate review only if they were assigned as error in a motion for a new trial. Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 309 (Minn. 2003). “[M]otions for a new trial focus the [district] court’s attention on the specifics of an objection; give the district court the time and the opportunity to consider the context in which the alleged error occurred and the effect it might have had upon the outcome of the litigation; and provide the district court with the opportunity to correct its own errors.” Id. (quotation omitted). Appellants’ motion for a new trial failed to assign as error the admission of DJ’s school and medical records, therefore the issue is not properly before this court for review.

II. Adequacy of damages

Appellants assert that although the jury “technically” found that DJ did not provoke the dog, “it is clear by the questions asked by the jury during deliberations, and the jury’s final award, that the jury verdict represents a compromise” caused by the jury’s concern with the issue of provocation. “On appeal from a 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. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). “Where a fair inference can be drawn that inadequate damages were awarded as a compromise between right of recovery and the amount of damages sustained, a new trial should be granted on all issues.” Fortier v. Newman, 248 Minn. 69, 72-73, 78 N.W.2d 382, 385 (Minn. 1956). To reach the issue of whether the damages were a compromise caused by submission of the issue of provocation to the jury there must first be a determination by the district court that the damages were inadequate. “It is the rule in this state that the question of whether damages are adequate is addressed in the first instance to the discretion of the trial court. Its decision will not be reversed except in the most unusual circumstances.” Erickson by Erickson v. Hammermeister, 458 N.W.2d 172, 173 (Minn. App. 1990), review denied (Minn. Sept. 20, 1990). The district court, in this case, did not explicitly address the adequacy of the damages awarded for past or future pain, suffering, and emotional distress, but did find that because no evidence was presented regarding future necessary medical care “[a]ny award would have been speculative.”

On appeal, appellants have merely asserted, without any authority or argument, that the damages are manifestly and palpably contrary to the evidence. Assignment of error in a brief based on mere assertion and not supported by argument or authority is waived, “unless prejudicial error is obvious on mere inspection.” State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)). Respondents argue that appellants are merely speculating that, but for the errors they assert, the verdict would have been much larger. We conclude that appellants have waived the issue of the adequacy of the damages by failing to brief the issue on appeal. Absent a finding of inadequate damages, we cannot assume that the verdict was the result of a compromise, and any error in submitting the issue of provocation to the jury was harmless because the jury found that there was no provocation. Additionally, we do not agree with appellants’ argument that submission of provocation to the jury was error.

III. Submission of provocation issue to jury

The standard of review for denial of a motion for new trial depends on the standard of review for the underlying legal error alleged. Compare Dostal v. Curran, 679 N.W.2d 192, 194 (Minn. App. 2004) (stating that when a motion for a new trial is based on a question of law, review is de novo), review denied (Minn. July 20, 2004), with Myers v. Winslow R. Chamberlain Co., 443 N.W.2d 211, 215 (Minn. App. 1989) (reviewing denial of a motion for new trial based on evidentiary error under abuse of discretion standard), review denied (Minn. Sept. 27, 1989). Appellant’s argument is that they were entitled to a directed verdict on the issue of provocation. Review of denial of a motion for a directed verdict presents a question of law on whether the evidence creates a fact issue for the jury to decide. Doan v. Medtronic, Inc., 560 N.W.2d 100, 106 (Minn. App. 1997), review denied (Minn. May 13, 1997). Review of a question of law is de novo. Overocker v. Solie, 597 N.W. 2d 579, 581 (Minn. App. 1999) (citing Nemanic v. Gopher Heating & Sheet Metal, Inc., 337 N.W.2d 667, 669 (Minn. 1983)).

In the context of the dog-bite statute, Minn. Stat. § 347.22 (2004), provocation is generally a question of fact for the jury. Bailey by Bailey v. Morris, 323 N.W.2d 785, 787 (Minn. 1982). Appellants rely on Grams v. Howard’s O.K. Hardware Co., 446 N.W.2d 687 (Minn. App. 1989), review denied (Minn. Dec. 15, 1989), in which this court held that the act of a 22-month-old child toward a dog whose owner had stated that the dog was good with children did not constitute provocation as matter of law. Id.at 690. The facts of this case are distinguishable. Viewed in the light most favorable to respondents, as we must, the evidence here is that 11-year-old DJ continued to tease Grizzly with Grizzly’s toy after being asked not to and after being warned that Grizzly was “offensive” about his toys. Given this evidence, the issue of provocation was a fact issue properly submitted to the jury. We find no merit in appellants’ argument that because Tony described Grizzly’s contact with DJ’s face as an accident rather than attack, there could not have been provocation.

Affirmed.

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