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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Bethel v. Peters (09/03/2004) sp-5829

City of Bethel v. Peters (09/03/2004) sp-5829

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

CITY OF BETHEL,               )
                              )    Supreme Court No. S-10864
             Appellant,            )
                              )    Superior Court No.
     v.                       )    4BE-00-00297 CI
                              )
CATHERINE PETERS,             )    O P I N I O N
                              )
              Appellee.             )    [No. 5829 - September 3,
2004]
                              )




          Appeal  from the Superior Court of the  State
          of  Alaska, Fourth Judicial District, Bethel,
          Leonard R. Devaney, III, Judge.

          Appearances:  Frank S. Koziol, Law Office  of
          Frank  S.  Koziol, Anchorage, for  Appellant.
          Christine  S.  Schleuss,  Friedman,  Rubin  &
          White, Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh,  and  Fabe,  Justices.  [Carpeneti,
          Justice, not participating.]

          FABE, Justice.


I.   INTRODUCTION

          This  appeal  of a jury verdict in a tort suit  against

the  City of Bethel presents the question whether recommendations

for action contained in a post-accident report are excludable  as

subsequent  remedial measures under Alaska Rule of Evidence  407,

the  question  whether the superior court properly submitted  the

issue  of  severe  disfigurement to  the  jury,  and  a  question

concerning inappropriate arguments during the plaintiffs closing.

Because the superior court did not err in its rulings, we  affirm

the judgment.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

          On July 14, 2000, Louise Peters fell in the shower area

of  Bethels  city-owned  senior center.   She  suffered  multiple

fractures of her right leg.  She required surgery in Anchorage to

place  both internal and external hardware in her leg and  for  a

bone  graft.   Her  recovery involved  several  return  trips  to

Anchorage to remove the external fixator apparatus and for follow-

up  exams.   Her  leg  remains bent and  her  activity  has  been

curtailed.

          Following  Peterss accident, Louise Charles, the  Citys

director   of  senior  services,  prepared  an  Accident/Incident

Investigation  Report, in which she recommended the  installation

of  safety  bars  in  the shower area.  Safety  bars  were  later

installed.   Peters  sued  the City in  December  2000,  alleging

negligence in its maintenance of the shower.

     B.   Procedural History

          The  case was tried before a jury in August 2002.   The

thrust of Peterss theory of the case was that safety bars in  the

shower  would  have  prevented the fall and  that  the  City  was

therefore negligent in failing to install the safety bars  before

the  accident.   To this end, Peters introduced into  evidence  a

redacted  version  of the accident report in  which  the  section

detailing  the corrective action taken was blacked out.   Peterss

attorney also questioned Charles and senior center administrative

assistant  Bev Bell, asking each whether soon after the  accident

she  thought safety bars should be installed, and whether she had

thought  of  it before the accident.  In response to  a  question

about  her pre-accident thoughts, Charles volunteered that safety

bars  had  in  fact  been installed after the accident.   In  his

closing  argument, Peterss attorney argued that the  City  should

have  known before the accident that safety bars would  make  the

shower  area more safe.  He mentioned the recommendations  Louise

Charles  made in her report but never discussed the Citys  actual

installation of the bars after Peterss fall.

          In   addition   to   the  issues  of   negligence   and

contributory  negligence, the superior  court  submitted  to  the

jury,  over  the  Citys  objection, the question  whether  Peters

suffered  a severe disfigurement.  The jury found that  the  City

was  eighty-seven  percent at fault for  the  accident  and  that

Peters  did  suffer  severe disfigurement, awarding  $575,000  in

noneconomic  damages.  The City appeals from  the  jury  verdict,

claiming that Alaska Rule of Evidence 407 should have barred  the

admittance  of  the  accident report, that the  issue  of  severe

disfigurement  should not have gone to the  jury,  and  that  the

courts  failure  to  correct  a pair of  statements  made  during

Peterss closing argument was plain error.

III. DISCUSSION

     A.   Standards of Review

          The  superior  courts  decision to  admit  evidence  is

reviewed  for  abuse  of  discretion.1   The  correct  scope   or

interpretation of a rule of evidence creates a question of law to

which  this court applies its independent judgment, adopting  the

rule  most persuasive in light of reason, precedent and  policy.2

The  superior courts decision whether to give the issue of severe

disfigurement  to  the jury, like the parallel  determination  of

severe  emotional  distress  in  an  intentional  infliction   of

emotional  distress action, is reviewed for abuse of discretion.3

Statements in closing arguments to which opposing counsel made no

objection are reviewed for plain error.4

     B.   The Superior Court Properly Admitted the Recommendation
          Section of the Post-Accident Report.
          
          Alaska  Rule  of  Evidence 407 provides,  in  pertinent

part:   When, after an event, measures are taken which, if  taken

previously,  would  have made the event  less  likely  to  occur,

evidence  of the subsequent measures is not admissible  to  prove

negligence  . . . .  Evidence of subsequent remedial measures  is

relevant  to  the question of negligence, but it is  excluded  in

          order to encourag[e] defendants to take safety precautions after

accidents.5  The City claims that the rule should have barred the

admission of the Accident/Incident Investigation Report completed

by  Louise  Charles.   The report includes sections  headed  What

Should Be Done? and Corrective Action Taken.  The superior  court

allowed the introduction of the report with the Corrective Action

section  redacted.   In the What Should Be Done?  section,  which

remained  intact  in the admitted version of the report,  Charles

wrote  that [i]t would be helpful, to elders, if at least 3  more

safety bars were installed on the walls in the sauna area and  in

the  bathroom  areas.   Elders could then support  themselves  if

necessary.

          Evidence   showing  that  the  City  followed  Charless

recommendation and installed the safety bars is plainly barred by

the  rule.  The City initially argues that the recommendation for

safety  bars  in the report is this type of evidence  and  claims

that  the  report  reveals  the actual safety  improvement  later

installed.   But the redacted report only indicated that  Charles

suggested  more safety bars.  It did not reveal to the jury  that

the City followed her advice, and therefore was not excludable as

evidence  of  the  installation of the safety  bars.6   Rule  407

excludes  the  challenged  section of  the  report  only  if  the

recommendations themselves are covered by the rule.

            Our  previous cases applying this rule have concerned

concrete fixes like placing barriers and flashing lights around a

hole  where an employee had been injured7 or salting and  sanding

an allegedly icy walkway after someone had fallen;8 we have never

considered  whether Rule 407 reaches a section of a post-accident

report containing an investigation into an accidents causes or  a

recommendation   for  an  improvement.   Many   courts   applying

analogous  rules of evidence have held that the  rules  scope  is

limited   to  improvements actually implemented.9   These  courts

rely  in  part on the rules phrase measures are taken,  reasoning

that  [r]emedial measures are those actions taken to  remedy  any

          flaws or failures.10  Under this reasoning, an investigation or

recommendation  is  not  a concrete action;  a  report  on  these

activities  by  itself . . . would not have made the  event  less

likely to occur. 11  These courts therefore do not exclude reports

of  post-accident investigations and recommendations, often among

the  best  and most accurate sources of evidence and  information

for injured parties.12

          Other  courts  disagree, holding that evidence  of  the

parts   of   a   report  detailing  investigatory  findings   and

recommendations   should  be  excluded  as  subsequent   remedial

measures.13  These latter courts rely on the sensible proposition

that in many cases, the investigation is the prerequisite to  any

remedial safety measure.14  They reason that admitting such post-

accident  evidence  would  discourage defendants  from  carefully

investigating  accidents and considering how to prevent  them  in

the  future; they would then be less equipped to make the  safety

improvements  the  rule is designed to promote.15   This  broader

interpretation  of the rules exclusionary scope may  advance  its

goals,  but  it  collides  with another evidentiary  policy,  the

principle  of wide admission of relevant evidence, and  with  the

language of the rule.

          Under  Rule 402, our Rules of Evidence start  from  the

proposition that all relevant evidence is admissible.16  Rules of

exclusion like the one we consider today are merely exceptions to

this    general    rule.    Post-accident   investigations    and

recommendations  are  often relevant to the issue  of  negligence

and,  by revealing facts about the causes of an accident and  the

defendants  concerns  about  it, may be  particularly  useful  to

factfinders.17  The general presumption in favor of admissibility

strongly  suggests,  therefore,  that  such  evidence  should  be

admitted,   despite   any   possible   disincentive   to   safety

improvements.

          Between  these two competing policies, the language  of

the  rule  favors admissibility.  Rule 407 prohibits evidence  of

          measures that have been taken.  We take measures to mean concrete

actions,  and to leave outside the rules prohibition  preliminary

investigations and recommendations pointing toward those actions.18

Even  if post-accident investigations and reports were considered

measures,  the  rule  would not reach them.   The  rule  excludes

subsequent measures that would have reduced the likelihood of the

accident  if they had been taken previously, meaning  before  the

accident.   One cannot investigate an accident before it  occurs,

so  an investigation and report . . . cannot be a measure that is

excluded.19  The language of Rule 407 and the general presumption

of  admissibility  laid down by Rule 402, along  with  persuasive

authority  from other courts, compel us to hold that evidence  of

post-accident   investigations  and   recommendations   are   not

automatically excluded as subsequent remedial measures.20

          Like    all   other   evidence,   investigations    and

recommendations are subject to the balancing test of Alaska  Rule

of  Evidence  403, which provides that relevant evidence  may  be

excluded  if its probative value is outweighed by the  danger  of

unfair    prejudice.     The    relation    between    admissible

investigations and recommendations on the one hand  and  excluded

measures on the other requires particular care in this balancing.

If  the jury is given evidence of the recommendations but not  of

the actual fix, there is a danger that jurors may draw the unfair

inference  that  the recommendations were ignored.   In  deciding

whether  or not to admit recommendations, the trial court  should

carefully  consider  the  likelihood of this  inference  and  the

prejudice  it  would  cause.  In this case,  the  superior  court

weighed  relevance against prejudice and determined that Charless

report,  redacted  to exclude evidence of the  remedial  measures

taken, was admissible.  We find no error in its determination.21

     C.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Submitting the Question of Severe Disfigurement to  the
          Jury.
          
          Under AS 09.17.010(b), a plaintiff in a personal injury

or  wrongful  death action may recover no more than  $400,000  in

          compensation for noneconomic damages.  This cap is raised to

$1,000,000  if  the  damages  are awarded  for  severe  permanent

physical  impairment or severe disfigurement.22  Over  the  Citys

objection,  the  superior court instructed  the  jury  on  severe

disfigurement.   The  jury  found by special  interrogatory  that

Peters had suffered severe disfigurement and awarded $575,000  in

noneconomic  damages.  The City challenges  the  superior  courts

submission of the issue to the jury.

          The  superior court must make a threshold determination

of severe disfigurement before submitting the issue to the jury.23

The  court  should  withhold  the  issue  from  the  jury  if  no

reasonable  juror  could  find that the plaintiff  suffered  from

severe  disfigurement;24 otherwise the question should go to  the

jury.25   We review this determination for abuse of discretion,26

reversing  the  superior court only when we  are  left  with  the

definite  and firm conviction, after reviewing the whole  record,

that  [it]  erred in its ruling.27  The deferential  standard  of

review  and the substantive standard combine to give the  City  a

difficult  task in convincing us that the superior  court  abused

its  discretion.  We will reverse the courts decision to send the

question of severe disfigurement to the jury only if we possess a

definite and firm conviction that no reasonable juror could think

that Peterss injury was a severe disfigurement.28

            The first question we must answer is whether evidence

concerning  the state of Peterss leg before it was  fully  healed

may  play  a  role  in  this  determination.   Peters  calls  our

attention  to  photographs taken during her  recuperation,  which

lasted  several months and involved at least four  trips  to  the

Alaska  Native Medical Center in Anchorage.  The photos show  her

leg  with  an  array  of  pins and rods  attached.   The  statute

requires   severe   permanent  physical  impairment   or   severe

disfigurement to break the damage cap;29 the presence of the word

permanent  in  the  impairment clause  and  its  absence  in  the

disfigurement  clause of the same statute  imply  that  a  severe

          disfigurement need not be permanent to support damages beyond the

cap.  However, a reasonable healing period must be allowed before

disfigurement may be assessed.  Otherwise, a plaintiff might, for

example,   claim  to  be  disfigured  based  on   his   condition

immediately after being injured when a wound that will eventually

heal completely still appears grisly.  Evidence of the plaintiffs

injury before this healing period has passed is admissible to the

extent  that  it  provides information or  inferences  about  its

ultimate  condition.  It is unclear how the superior  court  used

the  various  photographs  in  evidence,  but  in  reviewing  its

threshold  determination, we will only consider evidence  of  the

long-term state of Peterss leg.

          The  photographs taken after Peterss recovery show  her

leg  bent in a drastic angle at the knee, which itself is  marred

by  significant scarring.  Testimony from Peters and her daughter

demonstrate  that  the  bend  in her  leg  is  constant,  if  not

permanent.   Conceding that Peters suffers a  disfigurement,  the

City  essentially asserts that it is not severe enough to warrant

submitting the question to the jury.  The statute does not define

severe  disfigurement, and no Alaska cases have  dealt  with  the

issue.   A  disfigurement is [t]hat which impairs or injures  the

beauty, symmetry, or appearance of a person or thing; that  which

renders  unsightly, misshapen, or imperfect.30   Although  Peters

notes  that her walk is significantly slowed by the injury,  that

her confidence is shaken, and that she can no longer take part in

activities like berry picking or boating, disfigurement  concerns

the outward appearance of a persons body, not its function.31  We

thus consider only the fact that Peterss leg is bent and scarred,

not  the  injurys effect on her ability to walk or take  part  in

other  activities.32   Because  the definition  of  disfigurement

depends on judgments of a plaintiffs appearance or unsightliness,

it  must be determined by an objective test gauging the views  of

the  reasonable  person.  If a reasonable person  would  see  the

injury  as detracting from the plaintiffs appearance, the  injury

          has caused disfigurement.33  Disfigurement is severe if a

reasonable  person would find that the injury mars the plaintiffs

physical  appearance  and  causes a  degree  of  unattractiveness

sufficient   to  bring  negative  attention  or  embarrassment.34

Contrary to the Citys suggestion, a plaintiff is not required  to

introduce  evidence showing how particular people  react  to  the

injury; the court and the jury themselves supply the views of the

reasonable person.

          In  making  the threshold determination of  whether  to

submit the question of severe disfigurement to the jury, a  trial

court  must balance the twin objectives of restraint and fairness

highlighted  by the legislatures declaration of the  purposes  of

the  tort  reform act that included the damage cap:  discouraging

frivolous litigation . . . without diminishing the protection  of

innocent  Alaskans  rights  to  reasonable,  but  not  excessive,

compensation  for  tortious injuries.35  The legislature  made  a

policy  determination  that  only those  plaintiffs  with  severe

disfigurements  should  recover beyond  the  cap.   The  question

should go to the jury whenever the disfigurement could reasonably

be  characterized as severe.  We cannot say that the evidence  of

Peterss contorted and scarred leg provides us with a definite and

firm  conviction that no reasonable juror could think it a severe

disfigurement.   The superior court did not abuse its  discretion

in submitting the question to the jury.

     D.   There  Was  No  Plain Error Concerning Peterss  Closing
          Argument.
          
          In  his  closing arguments, Peterss attorney  made  two

arguments  that the City claims warrant reversal.  The  City  did

not object to the statements at the time, so the only decision of

the trial court available for our review is the courts failure to

take  corrective  action  on its own motion.   Because  the  City

waived  its  objections by its silence at trial,  we  review  the

trial  courts  inaction  only for plain error.36   [P]lain  error

exists  where  an obvious mistake has been made which  creates  a

high likelihood that injustice has resulted.37  Before this court

will  notice  and  correct  a waived  error,  the  likelihood  of

injustice must be clear, such that we do not need to speculate on

whether the error altered the result.38

          The  City first claims that Peterss attorney improperly

invited  the jury to infer liability because Louise Charles,  the

City  director of senior services, rather than the city  manager,

was Bethels representative at the defendants counsel table.  [The

city  manager]s not sitting there, Peterss attorney said, because

its the belief of the city that youd be much more likely to award

damages  to  Mrs. Peters if the city manager was  sitting  there.

Although the statement is inappropriate and relies on facts  that

are  neither  relevant nor admitted into evidence,  we  will  not

correct  the trial courts failure to take corrective  action  sua

sponte.   The  Citys  claim  that the statement  created  a  high

likelihood of injustice because Peterss strategy was to absolve[]

.  .  .  Charles[] from responsibility and blame is unpersuasive.

We  cannot  determine whether the jury relied on this  absolution

argument in its verdict without impermissible speculation.  There

was no plain error in allowing this statement to pass.

          In  the  second incident, Peterss attorney derided  the

$30,000  damage  figure suggested by the Citys  attorney  in  his

closing, saying it [m]akes a guy wonder how much Mr. Koziol makes

in  that year when [Peters is lying] in bed, you know? . . .  Its

an  insult to suggest [$30,000 is] what her injury was.  The City

asserts  that  the  suggestion about an attorneys  salary  is  so

beyond the boundary of reasonable argument as to constitute plain

error.   We  agree that the statement was improper and  an  undue

personal attack on the Citys attorney, and if the City had made a

contemporaneous objection, the superior court should  have  taken

corrective action.  But the City has not shown that the statement

caused a high likelihood of injustice or that the jury would have

come  to a different conclusion without the inappropriate remark.

The superior court thus did not commit plain error in failing  to

          take corrective action in the absence of an objection.

IV.  CONCLUSION

          For  these reasons, the judgment of the superior  court

is AFFIRMED.

_______________________________
     1    Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).

     2     State  v.  Coon,  974  P.2d  386,  389  (Alaska  1999)
(quotation marks and citation omitted).

     3     See  Wal-Mart,  Inc. v. Stewart,  990  P.2d  626,  635
(Alaska  1999)  (intentional  infliction  of  emotional  distress
instruction).

     4     See  Clary  Ins. Agency v. Doyle, 620  P.2d  194,  204
(Alaska 1980).

     5     Robles v. Shoreside Petroleum, Inc., 29 P.3d 838,  845
(Alaska 2001); see also Alaska R. Evid. 407, commentary.

     6      Cf.   Rocky  Mountain  Helicopters,  Inc.   v.   Bell
Helicopters Textron,  805 F.2d 907, 918 (10th Cir. 1986) (holding
that  post-accident  test is not evidence that  tested  part  was
redesigned).

     7     Exxon  Corp.  v. Alvey, 690 P.2d 733,  740-41  (Alaska
1984).

     8     Agostino v. Fairbanks Clinic Pship, 821 P.2d 714,  716
(Alaska 1991).

     9    E.g., McFarlane v. Caterpillar, Inc., 974 F.2d 176, 181-
82 (D.C. Cir. 1992); Prentiss & Carlisle Co. v. Koehring-Waterous
Div.  of  Timberjack,  Inc., 972 F.2d 6, 9-10  (1st  Cir.  1992);
Benitez-Allende v. Alcan Aluminio do Brasil, S.A., 857  F.2d  26,
33  (1st Cir. 1988); Rocky Mountain Helicopters, 805 F.2d at 918;
Westmoreland v. CBS Inc., 601 F. Supp. 66, 67-68 (S.D.N.Y. 1984);
Fox v. Kramer, 994 P.2d 343, 350-53 (Cal. 2000).

     10     Rocky Mountain Helicopters, 805 F.2d at 918 (emphasis
added);  see  also  2  Jack B. Weinstein &  Margaret  A.  Berger,
Weinsteins  Federal  Evidence  407.06[1],  at  407-27  to  407-28
(Joseph  M.  McLaughlin ed., 2d ed. 2004) (It is only if  changes
are  implemented  .  .  .  that  the  goal  of  added  safety  is
furthered.) (emphasis added).

     11    Benitez-Allende, 857 F.2d at 33 (quoting Fed. R. Evid.
407).

     12    Westmoreland, 601 F. Supp. at 68.

     13     E.g.,  Maddox v. City of Los Angeles, 792 F.2d  1408,
1417  (9th  Cir.  1986); Martel v. Mass. Bay Transp.  Auth.,  525
N.E.2d 662, 664 (Mass. 1988).

     14    Martel, 525 N.E.2d at 664.

     15    See id.

     16     United States v. Cruz-Garcia, 344 F.3d 951, 954  (9th
Cir.  2003)  (discussing  Federal Rules of  Evidence)  (quotation
marks  omitted);  see also Bingaman v. State, 76  P.3d  398,  408
(Alaska  App. 2003) (The first governing principle [of Rule  402]
is  that relevant evidence is presumptively admissible.); Denison
v.  Anchorage, 630 P.2d 1001, 1003 (Alaska App. 1981)  (Rule  402
embodies  a  basic  preference  for  admission  of  all  relevant
evidence . . . .).

     17    See Westmoreland, 601 F. Supp. at 68.

     18     See  Rocky  Mountain Helicopters, 805  F.2d  at  918;
Fasanaro  v. Mooney Aircraft Corp., 687 F. Supp. 482,  487  (N.D.
Cal. 1988); Weinstein & Berger, supra note 10,  407.06[1], at 407-
27 to 407-28.

     19    Ensign v. Marion County, 914 P.2d 5, 7 (Or. App. 1996);
see also Fox, 994 P.2d at 351.

     20    In some cases, a recommendation and a remedial measure
may  be  one  and  the  same, as when the  recommendation  itself
represents  a change in policy.  E.g., Complaint of Consolidation
Coal  Co.,  123  F.3d 126, 136 n.9 (3d Cir. 1997)  (holding  that
safety  alert,  .  . . designed to alert . .  .  employees  to  a
potential danger . . . and advise them of measures to avoid  this
danger  .  .  . .  is inherently a subsequent remedial  measure).
This  is not such a case  after Charles completed her report  and
recommendations,  the  City still had to  act  to  implement  her
suggestions.

     21     Because  we hold that Rule 407 does not exclude  such
recommendations, we do not need to decide whether they could have
been admitted for any purpose other than to prove negligence.

     22    AS 09.17.010(c).

     23     Cf. Meidinger v. Koniag, Inc., 31 P.3d 77, 87 (Alaska
2001)  (The  trial  court  must make  a  threshold  determination
whether the severity of the emotional distress and the conduct of
the   offending  party  warrant  an  instruction  on  intentional
infliction of emotional distress.) (quotation marks omitted).

     24     See  Nelson v. Progressive Corp., 976 P.2d  859,  868
(Alaska 1999) (upholding directed verdict that no severe distress
occurred  because  no reasonable jury could  make  the  requisite
finding);  Teamsters Local 959 v. Wells, 749 P.2d 349,  358  n.14
(Alaska  1988) (upholding determination that severe distress  was
established as a matter of law where a reasonable jury would  not
have differed); State, Dept of Corrections v. Johnson, 2 P.3d 56,
64 (Alaska 2000).

     25     See  Wal-Mart,  Inc. v. Stewart, 990  P.2d  626,  635
(Alaska  1999) (If reasonable jurors could differ as  to  whether
the  evidence adduced at trial would satisfy [the elements of the
tort of intentional infliction of emotional distress (IIED)], the
superior court is required to submit the IIED claim to the jury.)
(quotation marks omitted).

     26    See id.

     27     Samaniego  v.  City of Kodiak, 80  P.3d  216,  218-19
(Alaska 2003) (quotation marks omitted).

     28    See Wal-Mart, 990 P.2d at 635.

     29    AS 09.17.010(c).

     30    Blacks Law Dictionary 420 (5th ed. 1979).

     31     See Nelson v. Myers, 381 N.W.2d 407, 408 (Mich.  App.
1985)   (Whether  an  injury  amounts  to  a  permanent   serious
disfigurement depends on its physical characteristics rather than
its  effect  on  the plaintiffs ability to live a  normal  life.)
(quotation marks omitted).

     32    An injurys effect on a plaintiffs abilities is properly
the  subject  of  an  instruction on  severe  permanent  physical
impairment, also under AS 09.17.010(c).  In the present case, the
superior  court refused to give such an instruction,  a  decision
Peters does not challenge.

     33     Cf. Tuhy v. Schlabsz, 574 N.W.2d 823, 825 (N.D. 1998)
(holding  that  scar that could not be seen by trial  court  upon
close observation of plaintiffs lip was not serious and permanent
disfigurement); Smith v. Higgins, 819 S.W.2d 710, 712 (Ky.  1991)
([A]ny  scar  capable of ordinary perception  or  which  produces
ongoing  personal discomfort constitutes disfigurement.); Kanaziz
v.  Rounds,  395 N.W.2d 278, 281 (Mich. App. 1986) (holding  scar
that  is  not immediately and readily noticeable is not permanent
serious disfigurement).

     34    Cf.  Falcone v. Branker, 342 A.2d 875, 880 (N.J. Super.
Law  Div. 1975) (holding that to qualify as permanent significant
disfigurement, a facial scar has to mar the natural expression so
as  to  attract  attention and should be materially disfiguring);
cf. also, e.g., McCabe v. Boyce, 770 N.Y.S.2d 495, 497 (N.Y. App.
Div.  2003) (reversing determination that very, very slight  scar
was  significant  disfigurement); Waldron v. Wild,  468  N.Y.S.2d
244, 247 (N.Y. App. Div. 1983) (A disfigurement is significant if
a  reasonable person viewing the plaintiffs body in  its  altered
state  would  regard the condition as unattractive, objectionable
or  as  the subject of pity or scorn.) (quotation marks omitted);
Beazley v. Pierce, 19 Pa. D. & C.3d 729, 733; 1981 WL 743 at  **4
(1981) (requiring more than a trifling mark discoverable only  on
close   inspection   for  an  injury  to  qualify   as   cosmetic
disfigurement [which] is permanent, severe and irreparable).

     35     Ch.  26,  1(1),  SLA 1997 (Alaska Statutes,  Temp.  &
Special Acts & Resolves 1997).

     36     5,  800  (Alaska  1996) (quotation marks  omitted).04
(Alaska 1980).

     37     State  Farm Mut. Auto. Ins. Co. v. Weiford, 831  P.2d
1264, 1270 (Alaska 1992) (quotation marks and citation omitted).

     38     Jaso  v.  McCarthy, 923 P.2d 795, 800  (Alaska  1996)
(quotation marks omitted).