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State, Dept. of Corrections v. Johnson (5/5/00) sp-5269

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

STATE OF ALASKA, DEPARTMENT   )
OF CORRECTIONS,               )    Supreme Court Nos. S-8669/8670
                              )
             Appellant/       )    Superior Court No.
             Cross-Appellee,  )    3AN-96-173 CI
                              )
     v.                       )    O P I N I O N
                              )
GARRY JOHNSON,                )    [No. 5269 - May 5, 2000]
                              )
             Appellee/        )
             Cross-Appellant. )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Rene J. Gonzalez, Judge.


          Appearances: Thomas J. Slagle, Assistant
Attorney General, and Bruce M. Botelho, Attorney General, Juneau,
for Appellant and Cross-Appellee.  Thomas V. Van Flein and Craig F.
Stowers, Clapp, Peterson & Stowers, Anchorage, for Appellee and
Cross-Appellant.


          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.  


          FABE, Justice.


I.   INTRODUCTION
          The State appeals a jury verdict in favor of Garry
Johnson, a former inmate at the Ketchikan Correctional Center, for
damages he suffered when a swinging door knocked him down a
stairway.  Because the superior court incorrectly instructed the
jury on the duty of care that the State must exercise when building
a jail, we reverse.  Although we remand on the issue of whether the
State breached its duty to Johnson, we find no error tainting
either the jury's finding that Johnson's fall caused his injuries
or its calculation of damages.  We therefore remand for a new trial
limited to the issue of whether the State breached its duty to
exercise reasonable care in the construction of the Ketchikan jail.
II.  FACTS AND PROCEEDINGS
          One evening in February 1994 Garry Johnson was returning
to his cell at the Ketchikan Correctional Center.  As he climbed to
the landing at the top of the stairs, he turned to speak to a
fellow inmate.  At this precise moment, his cell mate, Thomas Coen,
opened the cell door, striking Johnson and knocking him off the
landing and down the stairs.  Johnson fell to the base of the
stairs, where he lay unconscious.
          Johnson has suffered severe medical hardship since the
accident.  Dr. Susan Hunter-Joerns testified that the fall damaged
the sacral root nerves that control urinary, bowel, and erectile
function.  The accident has impaired these functions severely and
permanently.  Johnson must use a catheter and wear adult
incontinence protection devices for the rest of his life.
          Johnson sued the State for his injuries.  The State filed
a third-party complaint against Thomas Coen in an attempt to assign
a portion of the fault to him for opening the door. 
          Less than a month before trial, and after discovery had
closed, the State sought an independent medical evaluation (IME) of
Johnson.  Despite the close of discovery, Johnson's counsel
cooperatively agreed to allow the IME but did not waive Johnson's
right to have counsel present at the examination.  Although the
State scheduled the IME for a date several weeks later, it did not
reveal this information to Johnson's counsel, purportedly because
of security concerns about transporting a prisoner.  The State made
no effort to notify Johnson's counsel of the scheduling for the IME
until one-half hour before the exam took place.  Even then, counsel
for the State just left a voice-mail message for Johnson's
attorney.  That message, however, concerned only general matters
and failed even to mention the impending IME.  The IME entailed
many invasive and painful procedures; yet Johnson's counsel did not
learn of it until afterward.  After a hearing on the issue, the
superior court excluded the testimony of the examining physician,
Dr. John Keene.
          At trial Johnson contended that the stair landing from
which he fell was too short.  At the time the State received the
building permit for the jail in 1980, Alaska had adopted the 1970
version of the Uniform Building Code (UBC).  The 1970 UBC required
forty-eight-inch-deep stair landings, and the jail complied with
that requirement.  But state law requires the state's public
buildings to comply with local building codes as well. [Fn. 1] 
Before the State received its building permit, Ketchikan had
adopted the 1979 UBC, which required sixty-inch stair landings --
a full foot longer than the landing in front of Johnson's cell. 
Prior to Johnson's accident, however, both the State and Ketchikan
adopted the 1991 UBC, which required only forty-four-inch landings. 
All of the trial experts agreed that the landing complied with the
1991 UBC in effect at the time of the accident.
          Johnson filed a pretrial motion, seeking a ruling that
the State's construction of the landing was negligent per se.  The
State filed a cross-motion, arguing that the building code
effective at the time of injury defined the standard of care.  The
superior court ruled that the State violated the Ketchikan building
code that was in effect when the building permit was issued, but
refused to give the requested negligence per se instruction. 
Instead, the court ruled that "the finder of fact may consider the
State's violation of [the] 1979 UBC . . . as evidence of
negligence."  Despite the pretrial ruling, the actual instruction
given to the jury stated:  "You are instructed to consider the
State's violation . . . as evidence of negligence."
          The trial began on October 13, 1997 and lasted almost two
weeks.  At trial the parties disputed the standard of care owed by
a jailer to a prisoner.  The State asserted that the standard
required the jailer only to exercise "reasonable care for the
safety of his prisoners."  But the court instructed the jurors that
the jailer owed Johnson the duty of "utmost care."
          The State also objected repeatedly to Johnson's closing
argument.  In the argument, Johnson's counsel told a fictional
story in the first person about an accident that his own wife had
allegedly suffered.  The described facts of this incident were
almost identical to those of Johnson's accident.  Upon each of the
State's three objections, the court instructed the jury that
plaintiff's counsel was using an analogy. Johnson's counsel
admitted as much but only at the story's conclusion.  The State
argues that this argument had no support in the evidence and that
allowing it constituted reversible error.
          The State also argues that the court erred when it
removed the question whether Johnson suffered from "severe physical
impairment" from jury consideration and ruled that the statutory
$500,000 cap on non-economic damages did not apply to Johnson.
          The jury found the State one hundred percent negligent,
assigning no comparative negligence to Johnson or his cell mate
Coen.  The jury awarded $2,050,000 in damages, including $1,250,000
in past and future non-economic damages.  After the court added
attorney's fees and interest, it entered a final judgment of
$2,356,292.55.  The superior court rejected the State's motion for
a new trial, and the State appeals.
          In his cross-appeal Johnson disputes the superior court's
failure to take judicial notice of the Occupational Safety and
Health Administration (OSHA) regulations that he claims show that
the jail violated federal safety standards.
III.  STANDARD OF REVIEW
          Assessing the validity of jury instructions involves
questions of law, which are subject to our independent review. [Fn.
2]  An error in jury instructions will be grounds for reversal only
if it caused prejudice. [Fn. 3]
          We review the superior court's exclusion of expert
witnesses for an abuse of discretion. [Fn. 4]  A trial court abuses
its discretion if exclusion of an expert "determin[es] a central
issue in the litigation," unless the party seeking to admit the
expert acted willfully to gain an advantage in the litigation. [Fn.
5]
IV.  DISCUSSION
     A.   The Superior Court Committed Prejudicial Error When It
Instructed the Jury that the State Owed Johnson a Duty to Exercise
the Utmost Caution.

          The standard in Wilson v. City of Kotzebue [Fn. 6]
requires the State to exercise "reasonable care for the protection
of [the prisoner's] life and health." [Fn. 7]  Because prisoners
often cannot avail themselves of opportunities for self-protection,
the reasonable care standard periodically requires the jailer to
exercise more then ordinary care. [Fn. 8]  The "amount of risk or
responsibility" involved in holding a prisoner may dictate that a
jailer must exercise the "utmost caution" to "assist a prisoner who
is in danger." [Fn. 9]  Acknowledging this duty as utmost caution
is really just a way of restating the requirement that the jailer
must exercise reasonable care under the circumstances. [Fn. 10]
          Reasonable care in these circumstances did not require
the State to exercise the "utmost caution" because Johnson was not
in any unique danger and was able to protect himself.  The superior
court instructed the jury: 
          One who is required by law to take or who
voluntarily takes the custody of another, under circumstances which
deprive the other of his normal opportunities for protection, has
a duty to exercise the utmost caution to protect that person
against unreasonable risk of harm.  Such a duty encompasses the
jailer's duty to guard against risk of injury to his prisoners.

(Emphasis added.)  In this case, however, Johnson had an
opportunity to protect himself.  Johnson was neither incapacitated
nor did the terms of his custody impair his ability to exercise
caution on the stairway.  He had the same opportunity as any other
stairway user, such as a guard or other prison employee, to avoid
being knocked off the landing by the swinging door.  Being in
custody did not place Johnson "in danger" that would have triggered
the State's duty to exercise more then ordinary care. [Fn. 11]
          This case does not present any of the concerns that led
us in Wilson to characterize the standard of care as one of "utmost
caution." [Fn. 12]  In Wilson [Fn. 13] and Kanayurak v. North Slope
Borough, [Fn. 14] we pointed to circumstances that would justify
the "utmost caution" instruction.  In these cases we held that the
jailer must exercise a higher degree of care when the jailer knows
or reasonably should have foreseen that the prisoner was
incapacitated, suicidal, or otherwise "in danger." [Fn. 15] 
Because Johnson could have exercised the same amount of care as any
other stairway user, the superior court should not have instructed
the jury that the State owed him the utmost care. [Fn. 16]
          Moreover, the State should employ the same safety
standards for stairways in all state buildings.  The need for
safety in a state building's design is not peculiar to a prison. 
And the fact that the State compels Johnson to reside in the prison
does not in itself warrant a heightened duty.  If the State owed
the utmost care to those it compelled to be in a particular
building, then the heightened duty would extend to individuals
subpoenaed to appear at a courthouse [Fn. 17] or students required
to attend school. [Fn. 18]  We do not hold the State to the duty of
utmost care in either of these circumstances.  
          Because Johnson was not "in danger" as contemplated by
the court in Wilson, the situation did not permit an instruction
more stringent than reasonable and prudent care under the
circumstances.  The instruction made a verdict for the plaintiff
more likely; therefore we reverse and remand for a new trial.
          We now proceed to address the other issues on appeal in
order to provide guidance to the trial court on remand.  In doing
so we conclude that the trial court committed no error that would
affect the jury's finding that Johnson's fall caused his injuries
or its calculation of damages.  When no error taints a portion of
the jury's verdict and we believe the interests of justice and
judicial economy dictate, a remand for a new trial may be limited
to the issues affected by the error. [Fn. 19]  Accordingly, on
remand the trial should be limited to the issue of whether the
State was negligent in designing and building the stairway to
Johnson's cell.
     B.   The Superior Court Acted Within Its Discretion When It
Excluded Dr. Keene's Testimony.

          The examination that Dr. Keene conducted without
Johnson's counsel present violated Johnson's right to have an
attorney present during a Rule 35 exam. [Fn. 20]  We have
recognized that right explicitly. [Fn. 21]  A Rule 35 exam is
"often a critical part" of the litigation process, [Fn. 22] making
this right more than a procedural protection. [Fn. 23]  Having
counsel present is a right that may protect the examinee from
invasive, painful procedures and questions that exceed the proper
scope of the exam.  The presence of counsel may also facilitate
future cross-examination of the examining physician. [Fn. 24] 
Because Johnson had a right to counsel during a Rule 35
examination, we give great deference to the trial court's sanction
protecting it.
          The exclusion of Dr. Keene's testimony and his exam
report was an appropriate sanction under Rule 37(b)(3). [Fn. 25] 
The State only sought an IME after discovery had closed and the
trial date approached.  Johnson's counsel nevertheless agreed to
allow the examination but expressed his desire to be present. 
Despite this request, the State scheduled and conducted the exam,
failing to provide any notice to Johnson's counsel that it would be
taking place.
          The State's reliance on a Department of Corrections
policy requiring the transportation of prisoners to be confidential 
does not justify the State's failure to notify counsel.  This
policy is only a broad guideline, providing that "[p]risoner
transportation will be treated as confidential information."  The
State presented no evidence that informing Johnson's counsel would
create a security risk.  The State routinely informs attorneys of
their clients' transportation while keeping this information from
the public for security reasons.  A simple request of counsel to
keep the time and place confidential would have sufficed to allay
the State's concerns. 
          The State concedes that it did not attempt to contact
Johnson's attorney until thirty minutes before the exam.  Even then
the voice mail that the State left with Johnson's counsel failed to
mention the imminent exam.  Johnson's counsel did not learn of the
exam until after it had taken place.  The State's conduct exhibited
utter disregard for Johnson's right to have an attorney present.
          The State's discovery violation is especially egregious
considering the invasive, painful nature of the exam.  Dr. Keene
performed an "anal wink" test, in which he poked the tissue
surrounding Johnson's anus with a sharp medical instrument.  Dr.
Keene also performed a cystometrogram, in which he inserted a tube
into Johnson's penis and filled his bladder with fluid to the point
of causing severe pain.
          Moreover, the court's ruling did not preclude the State
from offering evidence on the issue of causation.  The State cites
Sykes v. Melba Creek Mining, Inc. [Fn. 26] for the proposition that
a showing of willfulness is necessary under Rule 37(b)(3) when
exclusion of a witness effectively determines an issue.  Our
decision in Sykes is not controlling in this case, however, because
the trial court's decision was not issue determinative.  The State
could have procured other evidence on the causation issue,
including the testimony from one of the many doctors who has
examined Johnson.
          Because Dr. Keene's exam violated Johnson's substantive
rights and its exclusion did not determine an issue against the
State, we conclude that the superior court acted within its
discretion when it condemned the State's deliberate conduct,
excluded Dr. Keene's testimony, and refused to allow another
invasive exam.
     C.   On Remand the Superior Court Should Instruct the Jury to
Consider Violation of the 1979 Building Code as Evidence of
Negligence.

          The parties have disputed the importance of the State's
violation of the 1979 UBC, which was effective at the time of
construction but had been relaxed before Johnson's injury.  The
trial court correctly resolved this issue before trial when it
concluded that "the finder of fact may consider the State's
violation of 1979 UBC Sec. 3303(i) as evidence of negligence."  But
the State's proposed instructions state the law more accurately
than that of the instruction that the superior court actually gave.
          1.   The superior court correctly refused to issue a
negligence per se instruction.

          Johnson argues that the superior court should have issued
a negligence per se instruction.  In determining whether a
negligence per se instruction is appropriate, the trial court must
conduct a two-step inquiry. [Fn. 27]  First, it must analyze
"whether the conduct at issue is under the ambit of the statute
according to the criteria set out in Restatement (Second) of Torts
sec. 286." [Fn. 28]  Second, upon a finding that an injury falls
within the ambit of the statute, the trial court must decide
whether to exercise its limited discretion to refuse the negligence
per se instruction. [Fn. 29]  This discretion is appropriately
exercised, however, when the law is obsolete:
          Obviously, cases will be relatively infrequent
in which legislation directed to the safety of persons . . . will
be so obsolete, or so unreasonable, or for some other reason
inapplicable to the case, that the court will take this position;
but where the situation calls for it, the court is free to do so.[[Fn. 30]]

Even if the 1979 UBC, which required sixty-inch landings, applied
to the State at the time of construction, both Ketchikan and the
State had repealed it at the time of injury.  Because the
applicable law had changed such that the State's purportedly
negligent design now complied with the statute, the superior court
acted appropriately when it denied the negligence per se
instruction.  As the superior court observed:  "It would be absurd
for this court to declare, through a finding of negligence per se
. . . that a 48 inch landing is not reasonable when in fact the
standard for new construction at the time of the accident held that
as little as 44 inches [was] an acceptable length for a landing
. . . ."  We agree with the superior court's analysis and conclude
that a negligence per se instruction was not appropriate.
          This decision will not, as Johnson contends, spawn a
flood of litigation over buildings that complied with old building
codes but do not meet the current requirements.  First, the
grandfathering regulation states that conditions not in strict
compliance with the amended building code may continue where they
do not constitute a distinct hazard to life or health. [Fn. 31] 
Second, we confine our holding that the appropriateness of the
negligence per se instruction depends on the code at the time of
injury to situations where amendments to the UBC bring a
preexisting code violation into compliance.
          Nor does our recent decision in Cable v. Schefik [Fn. 32]
compel us to reach the conclusion that a negligence per se
instruction was appropriate in this case.  In Cable we held that
the trial court abused its discretion when it did not issue a
negligence per se instruction and merely submitted the violation as
evidence of negligence. [Fn. 33]  But in Cable the general safety
code provision that the defendant violated was in effect at the
time of the accident. [Fn. 34]  In this case the State was not in
violation of the UBC at the time of the accident.  The landing's
compliance with the current code justifies an instruction on the
past violation as "evidence of negligence" rather then negligence
per se.
          Although Johnson's injury may have fallen within the
ambit of the statute, the statute was obsolete at the time of
injury.  Thus, the court correctly refused to grant a negligence
per se instruction.
          2.   On remand the superior court should instruct the
fact finder that it may consider the UBC violation as evidence of
negligence.

          The State argues that although the superior court
correctly ruled before trial that the jury "may consider the
State's violation of [the] 1979 UBC . . . as evidence of
negligence," it improperly gave Instruction 32, which told the jury
"to consider the State's violation of the 1979 U.B.C. . . . as
evidence of negligence." [Fn. 35]  According to the State, the
superior court reversed the law of the case by issuing what
amounted to a negligence per se instruction despite its earlier
ruling denying such an instruction. [Fn. 36]  While the superior
court's pretrial ruling was correct, the instruction actually given
amended and expanded the court's pretrial decision.  Because the
jury could have interpreted this instruction as compelling it to
consider the UBC violation as evidence of negligence when it would
be free either to accept or reject the evidence, the State's
proposed instructions more accurately state the law. [Fn. 37]  On
remand the trial court should issue an instruction that allows the
jury either to accept or reject the UBC violation as evidence of
negligence.
     D.   The Superior Court Correctly Directed a Verdict Holding
the Non-economic Damages Cap Inapplicable to Johnson Because He
Suffered a Severe Physical Impairment.

          The superior court appropriately directed a verdict for
Johnson on the issue of the applicability of the statutory cap on
damages.  Former AS 09.17.010 [Fn. 38] imposes a $500,000 cap on
non-economic damages unless the victim has suffered "severe
physical impairment." [Fn. 39]  The question whether a plaintiff
suffers from a severe physical impairment is one of fact, which
would normally be presented to the jury. [Fn. 40]  In this case,
however, the superior court appropriately removed the question from
the jury because "reasonable persons could not differ in their
judgment as to the facts." [Fn. 41]  The plaintiff presented
medical experts who testified that Johnson suffered from a severe
physical impairment.  The State presented no contrary evidence.
          And although the State replies by listing the parts of
Johnson's body that were not impaired or damaged by the accident,
this argument ignores the overwhelming testimony that Johnson
suffers from a severe physical impairment:
          Q:   Doctor, is Garry Johnson's condition, as
you understand it, with regard to bowel, bladder, and erectile
dysfunctions, is it permanent?

          A:   As far as we can tell, yes.

          Q:   Does it constitute physical impairment?

          A:   You bet.  And . . . people will put up
with back pain fairly readily, and leg pain, or missing fingers .
. . , but when you start affecting their bowel, their bladder and
their erectile []function, you're real close to home.  This is a
major disability.

          Q:   And on a scale of mild, moderate to
severe, how would you rate it?

          A:   Severe, he's lost the bowel and bladder
and all . . . erectile []function, it can't get any worse than
that.

          The evidence was undisputed that Johnson has permanently
lost urinary and bowel function.  Johnson must use a catheter and
wear an adult incontinence protection product every day for the
rest of his life.  Because permanently losing the normal use of a
body system necessary for day-to-day life constitutes severe
physical impairment, [Fn. 42] the superior court properly removed
this issue from the jury's consideration. [Fn. 43]
     E.   Johnson's Closing Argument Was Improper.
          In closing argument Johnson's counsel gave a fictional
account of an accident allegedly suffered by his wife.  Johnson's
counsel told the story in the first person and did not acknowledge
it was untrue until he had concluded his account.  The fictional
accident was similar to that suffered by Johnson:
               My wife and I . . . took a trip to Juneau
this past February, and we visited the state museum . . . .  And
when we went up . . . this flight of stairs that led to an art
gallery, and it was down kind of a narrow hall and they would have
smaller art objects hanging on the wall. . . .

          . . . .

               . . . [S]he was walking up the stairs
ahead of me, and she got to the top of the stairs and I said honey,
look, and I pointed down the hall because there were some really
neat paintings hanging on the wall.  And she stopped at the top of
the landing and she turned and -- because I had called to her, and
she turned . . . and unbeknownst to either of us, this door opened. 
And subsequently, I found out it was a really heavy metal door that
swung open. . . .  [I]t bumped her as she was standing, and she
lost her balance and she fell down the stairs. . . .

          . . . .

               And I ran to her . . . and there was no
response, but she was shaking and spasming and . . . I was scared,
I really was. . . .

               But I have a friend who's an engineer in
Juneau, and I contacted him . . . about the situation.....

          . . . .

               And I asked him . . . if he'd look into
this, and he said . . . he would be happy to. . . .  He got back to
me and told me, that [this door violated the building code]. . . . 

               And that brings up another subject,
that's the subject of what's wrong with [my wife].  The doctors say
she -- well she's been urinating in a bag, using a catheter the
entire time since this fall.  And in order to go to the bathroom .
. . she has to use an enema . . . .  And I don't know, could you
look into this case for me, because this is what I'm dealing with.

          The trial judge counteracted the misleading nature of the
argument by telling the jury on three occasions that it was just an
analogy.  But without such admonitions, counsel's argument could
have confused the jury, causing it to believe that the "facts" of
the story were evidence in the case or that the State had
negligently designed another state building.  Although the use of
analogies is certainly an approved technique for closing argument
and may counteract prejudice toward an unsympathetic client, [Fn.
44] Johnson's counsel could have avoided all possible confusion by
positing the story as a hypothetical at the outset of closing
argument.  In the event that counsel for Johnson wishes to make a
similar closing argument on retrial, the trial court should ensure
that this happens. [Fn. 45]
V.   CONCLUSION
          The superior court erred when it instructed the jury that
the State owed Johnson a duty of "utmost care."  Because the jury
could have found the State liable for violating the duty of "utmost
care" but not liable under the appropriate "reasonable care"
standard, the error was prejudicial.  Consequently, we REVERSE and
REMAND for a new trial.  Because we find no error tainting the
jury's verdict regarding causation and the calculation of damages,
we limit the issue at the new trial to whether the State was
negligent in designing and building the Ketchikan Correctional
Center.


                            FOOTNOTES


Footnote 1:

          See AS 35.10.025.


Footnote 2:

          See Sever v. Alaska Pulp Corp., 931 P.2d 354, 361 n.11
(Alaska 1996).


Footnote 3:

          See Coulson v. Marsh & McClennan, Inc., 973 P.2d 1142,
1150 n.21 (Alaska 1999).


Footnote 4:

          See Fairbanks N. Star Borough v. Lakeview Enters., Inc.,
897 P.2d 47, 58 (Alaska 1995).


Footnote 5:

          Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1170
(Alaska 1998) (quoting Alaska R. Civ. P. 37(b)(3)).


Footnote 6:

          627 P.2d 623 (Alaska 1981).


Footnote 7:

          Id. at 628.


Footnote 8:

          See id.


Footnote 9:

          Id. (emphasis added).


Footnote 10:

          See id.; see also W. Page Keeton et al., Prosser and
Keeton on the Law of Torts sec. 34 (5th ed. 1984).


Footnote 11:

     Wilson, 627 P.2d at 628.


Footnote 12:

          Id. at 628-29.  We reserve the question of precisely
which circumstances justify the "utmost caution" instruction.  


Footnote 13:

          Id.  In Wilson an intoxicated prisoner started a fire in
his cell, but the jailers failed to confiscate his lighter.  The
second fire set by the prisoner caused his injuries.  See id. at
626.


Footnote 14:

          677 P.2d 893, 897 (Alaska 1984).  In Kanayurak the
prisoner was intoxicated and experiencing hardship in her family
life.  See id. at 894-95.  In reversing a grant of summary
judgment, we held that a genuine issue of material fact existed as
to whether the jailer should have recognized that the prisoner was
prone to commit suicide, thus holding him to a duty to take action
to prevent it.


Footnote 15:

     Wilson, 627 P.2d at 628-29; Kanayurak, 677 P.2d at 898-99.  To
justify requiring more than ordinary care in some circumstances,
the Wilson court analogized to the special relationship between a
common carrier and its passengers.  This analogy is only warranted
in special situations when circumstances unique to prisoners and
known to or reasonably foreseeable by the jailer endanger the
prisoner.  See Wilson, 627 P.2d at 628.


Footnote 16:

          Another jurisdiction requires a jail designer to build
the jail "safe for its intended use."  Tittle v. Giattina, Fisher
& Co., Architects, Inc., 597 So. 2d 679, 681 (Ala. 1992); see also 
La Bombarbe v. Phillips Swager Assocs., Inc., 474 N.E.2d 942, 944
(Ill. App. 1985).


Footnote 17:

     See AS 09.50.010(10) (allowing a judge to hold people who
disregard a subpoena in contempt of court); Alaska R. Crim. P.
17(g).


Footnote 18:

     See AS 14.30.10 (requiring children aged 7 to 16 to attend
school).


Footnote 19:

     See Fancyboy v. Alaska Village Elec. Coop., Inc., 984 P.2d
1128, 1136 (Alaska 1999); General Motors Corp. v. Farnsworth, 965
P.2d 1209, 1222-23 (Alaska 1998); Sturm, Ruger & Co. v. Day, 615
P.2d 621, 624 (Alaska 1980).


Footnote 20:

     Alaska R. Civ. P. 35 (authorizing courts to order a party to
submit to a physical or mental exam upon a showing of good  cause
and proper notice to the party to be examined, when the physical or
mental condition of a party is at issue).


Footnote 21:

          See Langfeldt-Haaland v. Saupe Enters., Inc., 768 P.2d
1144, 1147 (Alaska 1989) ("We align Alaska with those authorities
which allow plaintiff's counsel to attend and record, as a matter
of course, court-ordered medical examinations in civil cases.").


Footnote 22:

     Id. at 1146.


Footnote 23:

          The State has attempted to distinguish Langfeldt-Haaland
because the examination was not court-ordered but by agreement of
the parties.  It is unclear why this distinction is relevant,
especially in light of Rule 35(b)(3), which extends 35(b)'s other
protections to examinations by agreement.


Footnote 24:

          See  Langfeldt-Haaland, 768 P.2d at 1145.


Footnote 25:

     This rule, which governs the imposition of discovery
sanctions, provides:

          Prior to making an order . . . the court shall
consider

          (A)  the nature of the violation, including
the willfulness of the conduct and the materiality of the
information that the party failed to disclose;

          (B)  the prejudice to the opposing party;

          (C)  the relationship between the information
the party failed to disclose and the proposed sanction;

          (D)  whether a lesser sanction would
adequately protect the opposing party and deter other discovery
violations;  and

          (E)  other factors deemed appropriate by the
court or required by law.

          The court shall not make an order that has the
          effect of establishing or dismissing a claim
or defense or determining a central issue in the litigation unless
the court finds that the party acted willfully.


Footnote 26:

     952 P.2d 1164, 1170 (Alaska 1998).


Footnote 27:

          See Cable v. Shefchik, 985 P.2d 474, 477 (Alaska 1999).


Footnote 28:

          Those criteria are:

          The court may adopt as the standard of conduct
of a reasonable man the requirements of a legislative enactment or
an administrative regulation whose purpose is found to be
exclusively or in part 

          (a)  to protect a class of persons which
includes the one whose interest is invaded, and

          (b)  to protect the particular interest which
is invaded, and

          (c)  to protect that interest against the kind
of harm which has resulted, and

          (d)  to protect that interest against the 
particular hazard from which the harm  results.

Restatement (Second) of Torts sec. 286 (1971) (quoted in Cable, 985
P.2d at 477 n.2).


Footnote 29:

     See Cable, 985 P.2d at 477.


Footnote 30:

          Northern Lights Motel v. Sweaney, 561 P.2d 1176, 1184
(Alaska 1977) (quoting Restatement (Second) of Torts sec. 286 cmt.
d).


Footnote 31:

     See 13 Alaska Administrative Code (AAC) 55.030(a) (1998).


Footnote 32:

          985 P.2d 474.


Footnote 33:

     See id. at 478-79.


Footnote 34:

     See id. at 477-79.


Footnote 35:

          Instruction 32 reads in its entirety:

          You are instructed that at the time the
Ketchikan Correctional Center was built, Alaska law under AS
35.10.025 provided as follows:

               A public building shall be built in
accordance with applicable local building codes. . . .  This
section applies to all buildings of the state . . . .
     
               . . . [A]t the time of the facility
planning and construction, the State was bound under AS 35.[1]0.025
to follow the local building codes of the City of Ketchikan . . . . 
Ketchikan's local building code includes Sec. 3303(i) of the 1979
Uniform Building Code which required that a landing to a stairway
that had a door opening over it was to have a minimum length of
five feet.  Therefore, the landing in question was in violation of
the 1979 Uniform Building Code. 

               You are instructed to consider the
          State's violation of 1979 U.B.C. Sec. 3303(i)
as evidence of negligence.

               This court has not determined as a matter
of law, whether or not the violation of any building code by the
State of Alaska was a proximate cause of injury to Mr. Johnson. 
That is for you to determine as the finder of fact.


Footnote 36:

     Johnson argues that the State failed to object to Instruction
32.  But the State did object to a negligence per se instruction. 
Because we conclude that Instruction 32 amounted to a negligence
per se instruction, the State's objection was not waived.


Footnote 37:

          The State's proposed Instruction 5 reads in pertinent
part:

               There was a building code in effect for
the City of Ketchikan and State of Alaska in 1982/1983 when the
Ketchikan Correctional Center was constructed.  It provides:

          1979 Uniform Building Code sec. 3303 (i).

          (i)  Change in Floor Level at Doors. . . .
Where doors open over landings, the landing shall have a length of
not less than 5 feet.

               If you decide it is more likely true than
not true that the State of Alaska violated any part of this law,
you may consider that fact along with all other evidence [including
any evidence tending to show why the law was violated] in deciding
whether under the circumstances of this case the defendant used
reasonable care.

(Brackets in original.)  The State's proposed Instruction 6 reads
in pertinent part:

               There was a building code in effect for
the City of Ketchikan and State of Alaska in 1994 that applies to
this case.  It provides:

          1991 Uniform Building Code sec. 3304 (j)

          (j)  Landings at Doors. . . .  Landings shall
have a length measured in the direction of travel of not less then
44 inches.

               If you decide it is more likely true than
not true that the State of Alaska obeyed this law, you may still
decide the State of Alaska is negligent if you decide that a
reasonably careful person under circumstances similar to those
shown by the evidence would have taken precautions in addition to
those required by the uniform building code.


Footnote 38:

          The legislature enacted AS 09.17.010 as part of the 1986
tort reform.  See Ch. 139, sec. 1, SLA 1986.  The legislature has
subsequently modified the statute, but that modification is
inapplicable here because it only applies to injuries occurring
after August 7, 1997.  See Ch. 26, sec. 1, SLA 1997.


Footnote 39:

          AS 09.17.010 (1996).


Footnote 40:

          See, e.g., Owens-Corning v. Walatka, 725 A.2d 579, 585
(Md. Spec. App. 1999); Lewis v. Krogol, 582 N.W.2d 524, 526 (Mich.
App. 1998).


Footnote 41:

          Alaska Tae Woong Venture, Inc. v. Westward Seafoods,
Inc., 963 P.2d 1055, 1062 (Alaska 1998) (quoting Ben Lomond, Inc.
v. Schwartz, 915 P.2d 632, 635 (Alaska 1996)).


Footnote 42:

          See School Bd. of Nassau County, Fla. v. Arline, 480 U.S.
273, 279-80 (1987) (approving of the definition of "physical 
impairment" in 45 C.F.R. sec. 84.3(j)(2)(i) (1985)).


Footnote 43:

     Because we have concluded that the non-economic damages cap
does not apply to Johnson, we need not address Johnson's contention
that the damages cap is unconstitutional.  See Municipality of
Anchorage v. Anchorage Daily News, 794 P.2d 584, 594 n.18 (Alaska
1990).


Footnote 44:

     See Thomas Mauet, Fundamentals of Trial Techniques, 275, 277
(2d ed. 1988).


Footnote 45:

     On cross-appeal Johnson challenges the superior court's
failure to take judicial notice of OSHA regulations that he claims
show that the jail violated federal safety standards.  The superior
court appropriately exercised its discretion when it refused to
take judicial notice of the OSHA regulations.  The OSHA regulations
are "duly published regulations of agencies of the United States."
Alaska R. Evid. 202(c)(2).  Accordingly, the court's decision to
take judicial notice is governed by Rule 202(c), which grants the
trial court discretion as to whether to take judicial notice when
an attorney does not make a proper request.  Because Johnson's
counsel made no prior request, the trial court was free to take or
refuse to take judicial notice.