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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).
