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Pugliese v. Perdue9/3/1999
[No. 5169 - September 3, 1999]
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge.
I. INTRODUCTION
Ralph Perdue backed his pickup truck into Robert Pugliese, a pedestrian. When Pugliese sued for personal injuries, Perdue admitted negligence but contested the amount of compensable damages. During closing arguments at trial, Perdue's counsel told the jury that Pugliese "is entitled to some compensation here. I am not saying don't give him anything. That just wouldn't be fair and just." But the jury gave Pugliese nothing. Pugliese appeals, contending that the verdict was not just and fair and that the court should therefore have granted a new trial. We reverse and remand, concluding that Alaska Civil Rule 59(a) required a new trial because the evidence fails to support a complete denial of damages.
II. FACTS AND PROCEEDINGS
As Ralph Perdue backed his pickup truck out of a parking spot at Fred Meyers in Fairbanks on April 4, 1994, his foot slipped off the brake pedal and onto the accelerator, causing the truck to hit Robert Pugliese, who was walking behind the truck.
The parties gave conflicting descriptions of the collision. Pugliese described it as a traumatic event: Perdue's truck suddenly "shot" back at about five to ten miles an hour. Pugliese tried to jump out of the way, but the truck struck his elbow, spun him around in the air, and knocked him down, bruising his arm and hurting his back and leg. Perdue approached Pugliese, showed him his driver's license and asked if he was hurt; Pugliese responded that he did not know and that he wanted to call the troopers. But Perdue got back into his truck and left.
Perdue characterized the accident as less serious: When his foot slipped off the brake and onto the accelerator pedal, his truck moved backwards at only about one mile per hour. Perdue heard the truck bump something, looked back, and saw Pugliese, standing. When Perdue contacted him to see if he needed medical help, Pugliese replied that he was "okay." After Perdue gave his license number and business card to Pugliese, Pugliese said something about calling the police; Perdue told him to go ahead. As Pugliese walked toward the store, Perdue saw no limp or any other sign of injury. Perdue then left the area, thinking that the police would not investigate an accident that occurred on private property.
Pugliese evidently reported the incident to Perdue's insurer within the next two days. Pugliese reported the incident to Dr. George Vrablik during a May 26, 1994, appointment that they had scheduled for the treatment of a pre-existing shoulder injury. According to Pugliese, when the pain in his back and leg persisted following the collision, he decided to mention it Dr. Vrablik. Pugliese told the doctor that since the collision he had felt continuing pain in his leg and back. After examining Pugliese and ordering a number of different tests, Dr. Vrablik diagnosed him as having a damaged L-5 nerve root.
Pugliese, citing this injury, sued Perdue for damages resulting from the collision, claiming that his injury was permanent, would cause him ongoing pain, and would eventually cut short his career as a petroleum refinery mechanic. Before trial, Perdue admitted negligence, liability, and lack of comparative negligence. This left damages as the sole issue to be tried.
In his opening statement to the jury, Perdue's counsel emphasized that Perdue would contest only the amount of damages attributable to the injury:
We believe in Conclusion that the evidence will show that the problems that Mr. Pugliese
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