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Crosby v. Hummell2/7/2003
on the issue by accusing the trial court of applying a double standard. Crosby reasons that, since the trial court allowed Normandy to dispute the issue of control on retrial - an issue that, according to Crosby, our first opinion definitively found to be undisputed - fairness dictates that the court should likewise have allowed Crosby to claim that the previously disputed issue of permission was now undisputed. But Crosby's argument fails for several reasons.
To qualify as a judicial admission, a party's answer must be a clear, deliberate, and unequivocal statement of fact. Yet as our discussion of the jury instruction on negligence per se illustrates, Normandy's answer acknowledging that she had "permitted" Joshua to drive is susceptible of more than one meaning, and only the narrower meaning would establish a violation of AS 28.15.281(b). In context, then, Normandy's answer is not an unequivocal statement of fact and therefore does not qualify as a judicial admission.
Moreover, the superior court's reliance on Rule 15(b) was appropriate. By allowing the parties to litigate the issue of permission as a disputed point at the first trial, the superior court effectively disregarded any inconsistent admissions on the point set out in the parties' pleadings. On appeal following the first trial, this court expressly held that "a legitimate factual dispute existed" as to whether "Normandy authorized or knowingly permitted Joshua to drive." On remand, then, this holding established the law of the case, which the trial court properly followed.
Finally, we find no merit in Crosby's claim of unequal treatment. Although Crosby complains of being unfairly subjected to a double standard, her argument mistakenly assumes that the trial court disregarded a conclusive holding in our first opinion that the issue of control was undisputed. As we decided earlier in this opinion, our prior opinion did not so hold.
C. Evidentiary Ruling
Crosby alternatively argues that Normandy's answer admitting that she "permitted" Joshua to drive was at least relevant evidence tending to show that Normandy had given Joshua permission. By completely excluding this evidence, Crosby contends, the trial court committed reversible error.
Although we find considerable merit in Crosby's position that Normandy's answer was admissible as evidence of permission, we need not conclusively decide the issue. Normandy made almost identical admissions in a pretrial deposition and an affidavit. At trial, the superior court allowed Crosby's counsel to rely on these admissions and to question Normandy about her statements. And Crosby's attorney discussed the admissions in his closing argument to the jury.
Considering the availability of these parallel admissions, we find no reasonable likelihood that exclusion of Normandy's answer to the complaint had any appreciable effect on the verdict. Even if error, then, exclusion of this evidence would have been harmless at most and would not warrant reversal.
IV. CONCLUSION
We AFFIRM the trial court's jury instructions, denial of summary judgment, and evidentiary rulings.
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