Hayes v. Xerox Corp., s. S-732

Citation718 P.2d 929
Decision Date25 April 1986
Docket NumberNos. S-732,741,s. S-732
PartiesJames C. HAYES and Murilda C. Hayes, Appellants, v. XEROX CORPORATION and Charles Green, Appellees.
CourtSupreme Court of Alaska (US)

Stephan H. Williams, Law Offices of Charles E. Cole, Fairbanks, for appellants.

John V. Acosta, Marcus R. Clapp, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellees.



COMPTON, Justice.

James and Murilda Hayes (the Hayeses) appeal a verdict in which the jury awarded Mr. Hayes $50,000 and Mrs. Hayes $10,000 for injuries sustained from an automobile collision with Charles Green (Green), an employee of Xerox Corporation (Xerox). The Hayeses' appeal raises the following issues: 1) did the superior court err in denying Mr. Hayes' motion for a new trial; 2) did the superior court err in excluding evidence on the issue of punitive damages; 3) did the superior court err in its award to Xerox of costs and attorney's fees; and 4) did the superior court err in compelling the Hayeses to answer certain interrogatories concerning prospective witness testimony. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.


This case arises out of a two car collision that occurred at the intersection of Fifth Avenue and Cushman Street in Fairbanks. While Green was driving a Xerox leased car north on Cushman toward Fifth Avenue, the Hayeses were driving west on Fifth Avenue. When the Hayeses approached the intersection at Fifth and Cushman the light was green in their favor. As Green approached the intersection the light was red but for some reason Green failed to look for or see the light. Running the red light, Green did not apply his brakes and hit the Hayeses' car. The Hayeses sustained various neck and back injuries as a result of the accident.

The Hayeses sued Xerox and Green for compensatory and punitive damages. Xerox and Green admitted liability for the Hayeses' injuries and that there was no comparative negligence. Xerox subsequently served an offer of judgment on the Hayeses. It offered to settle with Mr. Hayes for $91,500.00 plus costs and attorney's fees and with Mrs. Hayes for $23,500.00 plus costs and attorney's fees. The Hayeses did not accept the offer. The case proceeded to trial solely on the issue of the amount of damages Xerox must pay the Hayeses for their claimed losses. The court decided to exclude evidence on the issue of punitive damages, finding that the facts of the case did not justify such a claim.

After a five-day trial, the jury returned lump sum verdicts in the amount of $50,000 for Mr. Hayes and $10,000 for Mrs. Hayes. The Hayeses thereafter filed a motion for a new trial, which was denied. This appeal followed.


Mr. Hayes argues that the superior court erred in denying his motion for a new trial for two reasons: 1) during closing argument, Xerox made judicial admissions regarding elements of the Hayeses' damages; and (2) the evidence at trial did not support the jury's award which was grossly inadequate and unjust. 1

A. Did Xerox's Statements in Closing Argument Constitute Judicial Admissions?

Mr. Hayes contends that Xerox's counsel made certain judicial admissions in closing argument about elements of damages and therefore, as a matter of law, Mr. Hayes is entitled to a new trial. Xerox claims that its statements in closing argument constituted equivocal opinion rather than judicial admissions.

A judicial admission, to be binding, must be one of fact and not a conclusion of law or an expression of opinion. 31A C.J.S. Evidence § 299 at 765 (1964). Most courts require the statement to be a clear, deliberate, unequivocal statement of fact, not opinion. Wieder v. Towmotor Corp., 568 F.Supp. 1058, 1063 (E.D.Pa.1983) aff'd 734 F.2d 9 (3d Cir.1984); Childs v. Franco, 563 F.Supp. 290, 292 (E.D.Pa.1983); Kuzmic v. Kreutzmann, 100 Wis.2d 48, 301 N.W.2d 266, 268 (App.1980); Texas Processed Plastics, Inc. v. Gray Enterprises, Inc., 592 S.W.2d 412, 416 (Tex.Civ.App.1979); George M. Eady Co. v. Stevenson, 550 S.W.2d 473, 473-74 (Ky.1977); Hedge v. Bryan, 425 S.W.2d 866, 868 (Tex.Civ.App.1968).

In his closing argument, Xerox's counsel stated: "Mr. Hayes I think he's been significantly injured. I think he has injury now. I think it may need treatment. We don't know for sure." He conceded that Xerox owed Mr. Hayes a lot of money but didn't know exactly how much since that was the jury's job. He stated that future lost wages were "reasonably certain to be incurred. It's not there, not there." He did not believe there would be any future medical expenses. Counsel then started estimating how much money he felt the jury could award Mr. Hayes on each of his claims. He estimated a total of $69,000--$70,000 which included future medical expenses, loss of consortium, pain and suffering, and lost wages. Mr. Hayes argues that the above statements are judicial admissions in which counsel conceded liability for specific amounts of special damages claimed by Mr. Hayes.

Since there is no law in Alaska on this issue, we must look for guidance from other courts. The Wisconsin Court of Appeals has held that statements made in the context of closing arguments are not judicial admissions.

The majority of jurisdictions addressing the issue have determined that the opinions and conclusions of counsel in closing arguments do not amount to a binding judicial admission.... Closing arguments are matters of opinions. As stated in Sabo v. T.W. Moore Feed & Grain Company, 97 Ill.App.2d 7, 20, 239 N.E.2d 459, 465 (1968), quoting with approval Rosbottom v. Hensley, 61 Ill.App.2d 198, 215, 209 N.E.2d 655, 662 (1965):

"... In the dictionary denotation, a judicial admission is a formal act of the party or his attorney in court, dispensing with proof of a fact claimed to be true and is used as a substitute for legal evidence at the trial. Black's Law Dictionary, 1944."

We conclude that closing arguments of counsel are opinions only and cannot be construed as an admission of plaintiff's negligence.

Kuzmic, 301 N.W.2d at 268 (footnotes omitted).

Reading counsel's closing argument, we conclude that it constitutes opinion, or at best equivocal estimates, rather than clear statements of fact. Xerox conceded the fact that Mr. Hayes was injured by the accident but this issue was never in dispute. 2 The dispute focused on the extent of the injuries and the amount of damages to be awarded for them. Counsel couched his statements in the form of opinion. He phrased everything with "I think," and stated that he didn't know the exact amount to be awarded and did not believe Mr. Hayes would have future medical expenses and then threw out an estimate of $70,000. His estimates were just estimates and not clear, deliberate and unequivocal statements of fact.

The fact that counsel may have conceded some damages is not inconsistent with his theory of the case, since Xerox was disputing the extent or amount of each claim. See Wieder, 568 F.Supp. at 1063-64 (although counsel conceded that a third party caused the accident, this was not a judicial admission inconsistent with the theory of their case that a third party was the sole cause of the accident, relieving co-defendants of liability.) 3

We conclude that Xerox's statements during closing argument constituted opinion and not the clear, deliberate, and unequivocal statements of fact necessary for a judicial admission.

B. Did the Evidence at Trial Support the Jury's Award to Mr. Hayes?

Mr. Hayes also contends that the trial court erred in denying his motion for a new trial because the evidence does not support the damages awarded by the jury. Mr. Hayes claims that it was improper for the jury not to award him damages for his pain and suffering, loss of earning capacity and loss of enjoyment of life and consortium.

Xerox argues that the evidence at trial does support the award. Xerox concedes that Mr. Hayes suffered injuries but argues that he exaggerated the severity of these injuries.

The decision to grant or deny a new trial is within the trial court's discretion. Bailey v. Lenord, 625 P.2d 849, 856 (Alaska 1981), quoting Ahlstrom v. Cummings, 388 P.2d 261, 262 (Alaska 1964). If there is an evidentiary basis for the jury's decision, the denial of a new trial must be affirmed. Bailey, 625 P.2d at 856. However, if the evidence supporting the verdict was completely lacking or so slight and unconvincing as to make the verdict plainly unreasonable and unjust, then we must reverse the denial of a motion for a new trial. Id.; Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982), citing Sloan v. Atlantic Richfield Co., 541 P.2d 717, 724 (Alaska 1975). In reviewing such denials, we must view the evidence in the light most favorable to the non-moving party. Bailey, 625 P.2d at 856, citing City of Palmer v. Anderson, 603 P.2d 495, 501 (Alaska 1979).

We have reviewed the record and conclude that there was an evidentiary basis for the jury's verdict and that it was not plainly unreasonable and unjust.

The evidence at trial established that Mr. Hayes suffered a back and neck injury from the accident. The question was the amount of Mr. Hayes' pain and suffering.

Doctors Vrablick, Martino and Gollogly all testified that Mr. Hayes suffered nerve root damage at the S-1, C-9, C-8 and T-1 level affecting his neck, back and left arm. Doctors Martino and Gollogly stressed that these problems were not very severe.

Xerox challenged Mr. Hayes' evidence as to the severity of his injuries by showing that he spent some of his sick leave from the accident in Los Angeles at Disneyland and in Anchorage at church functions.

In addition, Mr. Hayes' supervisor at the attorney general's office testified that Mr. Hayes' injuries did not interfere with his work even though the workload had increased from 386 to 680 complaints in three years without a...

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