Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jones v. Bowie Industries, Inc. (6/29/2012) sp-6688

Jones v. Bowie Industries, Inc. (6/29/2012) sp-6688

        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, email 

        corrections@appellate.courts.state.ak.us. 



                THE SUPREME COURT OF THE STATE OF ALASKA 



KEITH JONES,                                   ) 

                                               )       Supreme Court No. S-13227 

                  Appellant,                   ) 

                                               )       Superior Court No. 3AN-04-10958 CI 

        v.                                     ) 

                                               )       O P I N I O N 

BOWIE INDUSTRIES, INC.,                        ) 

TODD CHRISTIANSON, GREAT                       )       No. 6688 - June 29, 2012 

ALASKA LAWN AND                                ) 

LANDSCAPING, INC., and AIG,                    ) 

                                               ) 

                  Appellees.                   ) 

                                               ) 

                                               ) 

BOWIE INDUSTRIES, INC.,                        )       Supreme Court No. S-13247 

                                               ) 

                  Cross-Appellant,             ) 

                                               ) 

        v.                                     ) 

                                               ) 

KEITH JONES, TODD                              ) 

CHRISTIANSON, GREAT                            ) 

ALASKA LAWN AND                                ) 

LANDSCAPING, INC., and AIG,                    ) 

                                               ) 

                  Cross-Appellees.             ) 

                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Jack Smith, Judge. 


----------------------- Page 2-----------------------

               Appearances:     Michael W. Flanigan, Walther & Flanigan, 

               Anchorage, for Appellant/Cross-Appellee Keith Jones.  John 

               J. Tiemessen and Lisa C. Hamby, Clapp, Peterson, Van Flein, 

               Tiemessen        &    Thorsness,       LLC,     Fairbanks,      for 

               Appellee/Cross-Appellant Bowie Industries, Inc.  Kevin T. 

               Fitzgerald,     Ingaldson,    Maassen     &    Fitzgerald,    P.C., 

               Anchorage, for Appellee/Cross-Appellee Todd Christianson. 

               No   appearance   by   Appellee/Cross-Appellee   Great   Alaska 

               Lawn and Landscaping, Inc.        Notice of non-participation of 

               Appellee/Cross-Appellee   AIG   filed   by   Robert   L.   Griffin, 

               Griffin & Smith, Anchorage. 



               Before: Carpeneti, Chief Justice, Fabe, and Winfree, Justices. 

               [Christen and Stowers, Justices, not participating.] 



               CARPENETI, Chief Justice. 



I.     INTRODUCTION 



               A worker suffered a traumatic above-the-knee amputation of his right leg 



in a work-related accident in 2003. The accident happened when he used his foot to push 



a bale of mulch that he was feeding into a machine; his leg was caught in the machine 



and amputated. He received workers' compensation benefits for the injury and later sued 



the manufacturer and the owner of the machine under various tort theories.            After trial 



a jury found that the manufacturer was not negligent and the product was not defective. 



It also found that the company that owned the machine at the time of the accident was 



negligent, but that its negligence was not a legal cause of the accident. After finding that 



the worker and his employer were negligent and that their negligence was a cause of the 



accident, the jury apportioned fault for the injury between them.  Because we conclude 



that the superior court erroneously admitted evidence of the worker's receipt of workers' 



compensation and social security benefits and his past drug use, we reverse the trial 



court's judgment and remand for a new trial. 



                                               -2-                                         6688
 


----------------------- Page 3-----------------------

II.    FACTS AND PROCEEDINGS 



              Keith Jones worked for Titan Enterprises, LLC in 2003.        Before working 



for Titan, he worked for Great Alaska Lawn and Landscaping, Inc.        Todd Christianson 



was the sole shareholder of both corporations.     In November 2002 Great Alaska Lawn 



was involuntarily dissolved by the State of Alaska; also in November 2002 Christianson 



incorporated Titan.    In June 2003, while working for Titan, Jones was injured on a 



hydromulcher     designed   and  manufactured    by  a  predecessor  corporation   to  Bowie 



Industries, a Texas corporation.   Christianson testified that Great Alaska Lawn owned 



the hydromulcher on which Jones was injured. 



              A hydromulcher is a piece of equipment used to seed and fertilize land for 



lawns and landscaping.      To use a hydromulcher, the operator first begins to fill the 



hydromulcher's tank with water; he then adds seed, fertilizer, and mulch to the tank. 



Agitators in the machine mix the ingredients into a slurry, which is sprayed onto land for 



landscaping.   The hydromulcher here, a Bowie 1500 Imperial Hydromulcher, used a 



shredder bar - a rotating shaft with teeth - to tear apart bales of mulch as they were 



fed through a hole in the top of the hydromulcher.       The hydromulcher on which the 



accident happened had no guarding around the opening where the mulch was fed into the 



machine except a six-inch raised lip and a hinged lid. 



              Jones was working alone on the hydromulcher on June 5, 2003.            After 



attaching the water hose to a fire hydrant to fill the hydromulcher's tank, he climbed onto 



the hydromulcher to feed the other ingredients into the machine.       One of the bales of 



mulch did not feed properly, so he pressed down on the bale with his foot to force it into 

the machine, as he had done in the past and seen other workers do.1    When he did so, his 



       1      Witnesses used different terms to describe what they did with their feet to 



force bales that were not feeding properly into the opening, and it is not entirely clear 

                                                                              (continued...) 



                                             -3-                                        6688 


----------------------- Page 4-----------------------

foot was caught by the shredder bar, which pulled him into the machine.  He screamed, 



and a passer-by who heard him was able to stop the hydromulcher by disabling the 



engine.   By the time the hydromulcher stopped, Jones's right leg had been amputated 



above the knee. 



                Jones received workers' compensation benefits from Titan for the injury. 



 He sued Bowie Industries and Todd Christianson both individually and doing business 



as Great Alaska Lawn and Landscaping, Inc.              Jones alleged that (1) Bowie was strictly 



liable because of the defective design of the hydromulcher; (2) Bowie was negligent in 



designing the hydromulcher and in failing to warn of the dangers in using the machine; 



and (3) Great Alaska Lawn was negligent in providing unsafe equipment to Titan and 



in failing to warn Jones and Titan about the dangers in using the hydromulcher.  Jones 



later filed an amended complaint, adding Christianson's name to the allegations against 



Great Alaska Lawn. Bowie and Christianson answered, and trial was scheduled to begin 



on August 13, 2007. 



                In May 2007 Bowie filed two motions pertinent to this appeal.  It asked the 



court   for  a  legal   ruling  that   it   had  "no  post-sale   duty  to  warn  of   risks   or   safety 



improvements" related to the hydromulcher.             It also moved to allocate fault at trial to 



Titan, Jones's employer at the time of the accident.             After Bowie filed its allocation 



motion, AIG, Titan's workers' compensation insurer, moved to intervene in the case to 

protect its lien against any judgment Jones might obtain.2            The court permitted AIG to 



        1(...continued) 



from the record what Jones did when the accident happened. 



        2       Because Jones received workers' compensation benefits for the injury, AIG 



was entitled to reimbursement of the benefits, but the reimbursement amount could be 

reduced by the amount of fault allocated to Titan.          See AS 23.30.015(g). 



                                                 -4-                                            6688
 


----------------------- Page 5-----------------------

intervene in July 2007.     The court denied Bowie's motion about its post-sale duty to 



warn without explanation. 



               The parties filed motions in limine in anticipation of trial.  Jones sought to 



exclude evidence related to his receipt of workers' compensation and social security 



disability   benefits.   Bowie     opposed    excluding    this  evidence,   arguing   that  "[t]he 



availability of these benefits can be considered when determining whether Plaintiff has 



mitigated   his   damages."    It   argued   that   because   workers'   compensation   and   social 



security were "matters of common knowledge[, t]he jury [would] assume that Plaintiff 



received workers['] compensation and social security benefits."            The court decided to 



admit evidence of workers' compensation and social security benefits "for the limited 



purpose discussed." 



               Jones also asked the court to exclude evidence related to drug testing and 



chemical dependency treatment.        Bowie moved affirmatively for admission of Jones's 



drug-use history, arguing that it was   relevant to Jones's wage-earning capacity both 



before and after the accident.     In opposition to Jones's motion, Bowie argued that the 



substance abuse treatment records should   be admitted because they were relevant to 



future lost earnings.   The court ruled that Jones's drug-use history was not admissible. 



               The case went to trial in February and March 2008.  Jones presented expert 



opinion    evidence    that  the  hydromulcher    had   been   defectively  designed.    He    also 



presented evidence that Bowie was aware of problems with workers getting caught in the 



hydromulcher and in 1974 had sent a letter containing safety warnings to owners it could 



then identify. He introduced evidence that the hydromulcher on which Jones was injured 



did not comply with state regulatory standards for guarding during the entire time Great 



Alaska Lawn possessed it, and that Great Alaska Lawn had "loaned" the hydromulcher 



to Titan in 2003, only transferring legal ownership of the hydromulcher to Titan in 2005. 



 In an attempt to undercut Bowie's allegations that he was malingering, Jones presented 



                                                -5-                                          6688
 


----------------------- Page 6-----------------------

medical testimony about the difficulties he had adjusting to a prosthesis. Jones presented 



both lay and expert testimony about damages.              Dr. Richard Parks, Jones's economics 



expert, gave two estimates of future economic loss, one based on the assumption that 



Jones would have continued to work in the landscaping industry, and one based on an 



assumption that Jones would have returned to work as a fuel truck driver, a position he 



held from 1989 to 1998. 



                At the end of Jones's case-in-chief, the court granted a directed verdict to 



Christianson individually, finding that Jones had not offered sufficient evidence to pierce 



the corporate veil.      The court permitted the case to go forward against Great Alaska 



Lawn.    At this time Bowie asked the court to dismiss any negligence claims against it, 



arguing that these claims were extinguished by the statute of repose; the court refused 



to do so.   Bowie also asked for a directed verdict on Jones's punitive damages claim, 



which the court denied. 



                Bowie's main contentions in its case were that (1) the hydromulcher had 



adequate safety features; (2) any danger from the shredder bar was open and obvious so 



no warning or other guarding was needed; (3) no additional safety measures would have 



prevented the accident; and (4) Jones's use of his foot to force the mulch bale into the 



machine was the cause of the accident.           It called a former Bowie dealer to testify about 



his   own   construction   of   a   hydromulcher   in   the   1960s   and   about   safety   standards   in 



hydromulcher operation. Bowie presented testimony from experts in safety engineering 



and in biomechanics that further warnings were not necessary because of the obvious 



danger from the shredder bar and that any additional guarding would not have prevented 



the accident. 



                Bowie   countered   Jones's   damages   claims   through   the   testimony   of   its 



vocational expert, Dr. Anthony Choppa.   Dr. Choppa testified that it would be unlikely 



for   Jones   to   be   able   to   secure   work   as   a   fuel truck   driver   because   of "issues   in   his 



                                                   -6-                                             6688
 


----------------------- Page 7-----------------------

background."  Bowie then asked the court for permission to bring in evidence of Jones's 



past drug use, arguing that Dr. Parks's testimony about Jones's potential future earnings 



based on being a fuel truck driver would mislead the jury.                According to Bowie, there 



was "definitely" a difference between being a fuel truck driver and a truck driver.  The 



court   permitted   Bowie   to   ask   questions   related   to   Jones's   past   drug   use,   ruling   as 



follows: 



                 The court's considered this under [Alaska Evidence Rule] 

                 403, which I think is the issue, whether it's more prejudicial 

                 than probative.      Looking at - first of all, I'm going to find 

                 it's probative.   And then the question is, is it information that 

                 wasn't     in  his  report    that  should    have    been    previously 

                 disclosed, or is it based upon testimony brought out at trial or 

                 focused more at trial, I guess, on a fuel truck driver versus a 

                 truck driver.   I'm going to find it is.   I'm going to allow them 

                 to ask the questions. 



Jones   informed   the   court   that   its   ruling   would   require   him   to   call   rebuttal   expert 



witnesses. 



                 The next day Jones asked the court for permission to call a rebuttal witness 



from the trucking industry to counter Dr. Choppa's testimony.  Bowie objected, arguing 



that it was improper rebuttal. The court permitted Jones to call the witness over Bowie's 



objection. 



                 On the last day of trial, after closing argument had begun, Bowie filed a 



supplemental brief arguing that the court did not have jurisdiction to award punitive 



damages against Bowie because Texas, the state where Bowie had its principal place of 



business, had specifically rejected a post-sale duty to warn.   The court decided to let the 



issue of punitive damages go to the jury on Jones's post-sale failure to warn claim. 



                 The jury decided that (1) the hydromulcher was not defective; (2) Bowie 



was not negligent for failing to provide reasonably adequate warnings after 1966; (3) 



                                                    -7-                                              6688
 


----------------------- Page 8-----------------------

Bowie's failure to provide reasonably adequate warnings was not a legal cause of Jones's 



injury; (4) Bowie was not negligent; (5) no negligence by Bowie was a legal cause of 



Jones's accident; (6) Great Alaska Lawn was negligent in providing the hydromulcher 



to Titan; (7) Great Alaska Lawn's negligence was not a legal cause of Jones's injuries; 



(8) Titan was negligent; (9) Titan's negligence was a legal cause of Jones's injuries; (10) 



Jones suffered damages of $1,123,123.00; (11) Jones failed to mitigate his economic 



losses; (12) Jones was negligent; and (13) Jones's negligence was a legal cause of his 



injury.  The jury allocated fault 70% to Jones and 30% to Titan.   It also "recommend[ed] 



that   any   future   economic   loss   .   .   .   be   held   in   trust   by   a   third   party   and   used   for 



appropriate medical expenses." 



                Jones   objected      that   the  jury's   verdict   was   inconsistent.   His   specific 



objections     were    based   on   the  findings   that   Great   Alaska    Lawn    was    negligent    in 



supplying the equipment but that its negligence was not a legal cause of the accident and 



that Titan was negligent and its negligence was a legal cause of the accident.  The court 



found that the verdict was not internally inconsistent because state safety regulations 



required Titan to repair any lack of guarding before it used the machine. Therefore, even 



if Great Alaska Lawn negligently supplied the equipment, this need not have been a legal 



cause of the accident - by the time Jones was hurt, Titan had assumed responsibility for 



the equipment and its operation. 



                Jones moved for a new trial against Great Alaska Lawn and Bowie, arguing 



that the court had improperly admitted prejudicial evidence and that the weight of the 

evidence   was against the jury's verdict.           Bowie opposed the motion,3 and the court 



        3       Christianson also opposed the motion for a new   trial, although he only 



made   arguments   related   to   Great   Alaska   Lawn.       The   court   indicated   that   it   did   not 

consider his arguments on behalf of Great Alaska Lawn because his attorney had never 

                                                                                          (continued...) 



                                                   -8-                                                6688 


----------------------- Page 9-----------------------

denied it.   The court concluded that the evidence of workers' compensation benefits was 



properly admitted for the purpose of showing malingering and that Jones had countered 



Bowie's evidence with his own expert's opinions about his ability to return to work.  The 



court also concluded that the drug use evidence was properly admitted for the purpose 



of showing that Jones "would not likely be eligible to drive a fuel truck in Anchorage in 



the future[,] . . . not for any other purpose."  The court decided that the weight of the 



evidence was not against the jury's verdict and the verdict was not inconsistent. 



              Jones appeals the court's denial of the motion for a new trial, the admission 



of overly prejudicial evidence, the directed verdict against Christianson, and the court's 



refusal to give a negligence per se jury instruction against Great Alaska Lawn.     Bowie 



cross-appeals the court's decisions to instruct the jury on a post-sale duty to warn and 



punitive damages, the court's ruling on the statute of repose, and the court's decision to 



permit Jones to call his rebuttal witness to testify about the trucking industry. 



III.   STANDARD OF REVIEW 



              We review a trial court's decision to admit or exclude evidence for an abuse 

of discretion.4 We review a trial court's decision under Alaska Evidence Rule 403 by 



"balanc[ing] the danger of unfair prejudice against the probative value of the evidence 



'to determine whether the potential danger predominated so greatly as to leave us firmly 



convinced that admitting the challenged evidence amounted to a clear abuse of discretion 

under Evidence Rule 403.' "5 



       3(...continued) 



entered an appearance for Great Alaska Lawn. 



       4      L.D.G., Inc. v. Brown , 211 P.3d 1110, 1118 (Alaska 2009) (citing Yang v. 



Yoo, 812 P.2d 210, 217 (Alaska 1991)). 



       5      Brandner v. Hudson , 171 P.3d 83, 87 (Alaska 2007) (quoting Bluel v. State , 



                                                                             (continued...) 



                                            -9-                                       6688
 


----------------------- Page 10-----------------------

                When we review the grant of a directed verdict, we "must decide 'whether 



the evidence, when considered in the light most favorable to the nonmoving party, is 

such that reasonable persons could not differ in their judgment.' "6               "We review the 



decision to submit a punitive damages determination to the jury for abuse of discretion."7 



We find an abuse of discretion when, after reviewing the whole record, we are left with 

a definite and firm conviction that the trial court erred in its ruling.8 



                We review questions of law de novo, "adopting 'the rule of law that is most 

persuasive in light of precedent, reason, and policy.' "9          Interpretation of a statute is a 



question of law to which we apply our independent judgment, interpreting the statute 



according to reason, practicality, and common sense, considering the meaning of the 

statute's language, its legislative history, and its purpose.10 



IV.	    ISSUES RELATED TO JONES'S APPEAL 



        A.	     It Was Error To Admit Evidence Of Jones's Receipt Of Benefits And 

                His Use Of Drugs. 



        5(...continued) 



153 P.3d 982, 986 (Alaska 2007)). 



        6       Noffke v. Perez , 178 P.3d 1141, 1144 (Alaska 2008) (quoting Hagen Ins., 



Inc. v. Roller , 139 P.3d 1216, 1219 (Alaska 2006)). 



        7       Pederson v. Barnes , 139 P.3d 552, 562 (Alaska 2006) (citing  Wal-Mart, 



Inc. v. Stewart , 990 P.2d 626, 637 (Alaska 1999)). 



        8       Liimatta   v.   Vest ,   45   P.3d   310,   313   (Alaska   2002)   (quoting Peter   Pan 



Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982)). 



        9       In re Estate of Maldonado , 117 P.3d 720, 722 (Alaska 2005) (quoting 



Carr-Gottstein Props., L.P. v. Benedict, 72 P.3d 308, 310 (Alaska 2003)). 



        10      Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003) (citing Native Vill. of 



Elim v. State , 990 P.2d 1, 5 (Alaska 1999)). 



                                                 -10-	                                          6688
 


----------------------- Page 11-----------------------

                Jones argues that the trial court erred by admitting evidence of his receipt 



of workers' compensation and social security benefits and evidence of his drug use five 



years before the accident.   Jones contends that this evidence was unduly prejudicial and 



that its admission was harmful to him.           He maintains that the benefits evidence should 



have been excluded under the collateral source rule, which "exclud[es] evidence of other 



compensation       on   the  theory   that   such  evidence     would    affect   the  jury's  judgment 

unfavorably to the plaintiff on the issues of liability and damages."11  Jones also asserts 



that the drug use evidence had little probative value to the main issues of the case and 



insists that its prejudicial nature outweighed any probative value it may have had.  Jones 



claims that Bowie used the evidence in a highly prejudicial manner. Bowie responds that 



the   court   properly   exercised   its   discretion   in   admitting   the   evidence   and   correctly 



instructed the jury on the limited use of the collateral source evidence. 



                Both trial court rulings admitting the disputed evidence are governed by 



Alaska Evidence Rule 403, which provides: 



                Although relevant, evidence may be excluded if its probative 

                value    is  outweighed      by   the  danger    of  unfair   prejudice, 

                confusion   of   the   issues,   or   misleading   of   the   jury,   or   by 

                considerations   of   undue   delay,   waste   of   time,   or   needless 

                presentation of cumulative evidence. 



                When we review a trial court's decision under Rule 403, we "balance the 



danger of unfair prejudice against the probative value of the evidence 'to determine 



whether the potential danger predominated so greatly as to leave us firmly convinced that 



        11      Tolan v. ERA Helicopters, Inc., 699 P.2d 1265, 1267 (Alaska 1985) (citing 



Ridgeway v. N. Star Terminal & Stevedoring, Inc. , 378 P.2d 647, 650 (Alaska 1963)). 

Jones also cites to a second part of the collateral source rule from Ridgeway , prohibiting 

reduction of damages because of receipt of compensation from another source.                       This, 

however, was abrogated by AS 09.17.070.                 Loncar v. Gray , 28 P.3d 928, 933 n.19 

(Alaska 2001). 



                                                  -11-                                             6688
 


----------------------- Page 12-----------------------

admitting    the  challenged  evidence   amounted     to  a  clear  abuse   of   discretion  under 

Evidence Rule 403.' "12 



               1.     Collateral source benefits 



               Before trial Jones moved to exclude evidence of his receipt of workers' 



compensation and social security disability benefits, relying on earlier cases applying the 

collateral source rule.13  Bowie argued in opposition that the evidence should be admitted 



to show malingering because Jones "enjoyed the same level of pre-accident income, 



without working at all."  It said that it would introduce evidence of his receipt of benefits 



"to explain why [Jones had] not mitigated his damages and returned to work."  The trial 



court decided to admit the evidence for this purpose. 



               Jones asked for reconsideration, arguing that Bowie's assertion that it could 



use the evidence to show that Jones had the same income level without working was 



factually incorrect, at least with respect to workers' compensation, because he was not 

getting on-going cash benefits.14    Bowie countered that it had averaged Jones's lump- 



sum payment from the time he received the payment to the time of trial.           Bowie also 



noted that Jones had waived reemployment benefits "in order to receive these benefits" 



and that the benefits Jones waived were "benefits that [he] now claims as damages in this 



       12     Brandner v. Hudson , 171 P.3d 83, 87 (Alaska 2007) (quoting Bluel v. State , 



153 P.3d 982, 986 (Alaska 2007)). 



       13      Tolan, 699 P.2d 1265; Ridgeway, 378 P.2d 647. 



       14      Jones had received 26 weeks of temporary total disability (TTD) from June 



6 through December 4, 2003; eight weeks of permanent partial impairment (PPI) from 

December 5, 2003 through January 27, 2004; and a lump sum payment of $67,529.92 

(the balance of his PPI) on February 5, 2004. 



                                             -12-                                        6688
 


----------------------- Page 13-----------------------

case."15    The    court   denied   reconsideration,   finding   "the   arguments   of   the   defense 



persuasive and the information provided suggestive of malingering." 

                As    set  out  in  Tolan    v.  ERA    Helicopters,16    the  collateral   source   rule 



"exclud[es] evidence of other compensation on the theory that such evidence would 



affect    the  jury's  judgment      unfavorably     to  the  plaintiff  on   issues   of  liability  and 

damages."17     In Tolan we did not adopt a rule excluding collateral source evidence in all 



circumstances; we indicated that "receipt of compensation benefits may be admissible 



if   offered   for   a   purpose   other   than   the   diminution   of   the   plaintiff's   damages,"   and 



instructed trial courts in such cases to weigh the probative value of the evidence against 

the dangers of unfair prejudice and confusion.18 



        15      Jones waived workers' compensation reemployment benefits in exchange 



for the balance of his PPI.        He received no additional money for the reemployment 

benefits.   Under AS 23.30.190, PPI is calculated by multiplying a fixed dollar amount 

by the injured worker's degree of impairment related to the work injury.                     Unless the 

worker     is  engaged     in  the   reemployment       process,    PPI   is  paid   as  a  lump    sum. 

AS 23.30.041(k), AS 23.30.190(a).  When a worker is in the reemployment process, he 

receives PPI at his TTD rate until PPI is exhausted; if his reemployment plan continues 

after    PPI    is  exhausted,     he   may     be   eligible    for  additional     stipend    benefits. 

AS 23.30.041(k).   Jones was eligible for PPI of $70,800, and his TTD rate was $408.76 

per week, so had he stayed in the reemployment process, his PPI would not have been 

exhausted for at least three years. Benefits related to a reemployment plan end two years 

from the date of plan acceptance or approval.            AS 23.30.041(k). 



        16      699 P.2d 1265 (Alaska 1985). 



        17      Id. at 1267. 



        18      Id. at 1268 (citing DeMedeiros v. Koehring Co. , 709 F.2d 734, 740-41 (1st 



Cir. 1983)). 



                                                  -13-                                             6688
 


----------------------- Page 14-----------------------

                 More recently, in Liimatta v. Vest ,19 we observed that even though courts 



can   admit   evidence   of   collateral   source   benefits   to   show   malingering,   "it   is   usually 



acknowledged that the trial judge should exclude such evidence, or admit it only warily" 

because of the possibility of prejudice to the plaintiff.20         We also commented with respect 



to the issue of malingering that "there will generally be other evidence having more 



probative value and involving less likelihood of prejudice than the receipt of [collateral 

source benefits]."21       In Liimatta we decided that the trial court's failure to explicitly 



conduct a balancing test under Alaska Evidence Rule 403 was harmless error "[b]ecause 



a balancing of the probative value of the evidence against the dangers of unfair prejudice 

and confusion of the issues and the jury would have dictated exclusion."22                  Our case law 



thus suggests that collateral source evidence is presumptively prejudicial and should be 



excluded absent a showing that the evidence is more probative   than other available 

evidence.23 



                 In   this   case,   Bowie   had   other   evidence   on   which   to   base   its   claim   of 



malingering or failure to mitigate.           At trial Bowie provided documents showing that 



Jones had not followed through with retraining efforts through the Missouri Division of 



Vocational Rehabilitation, resulting in the division's closing his case file.  It introduced 



evidence   that   Jones   had   not   accurately   answered   interrogatories   about   jobs   he   had 



applied for and had applied for only one job after his injury.                It elicited testimony that 



        19       45 P.3d 310 (Alaska 2002).
 



        20       Id. at 318 (internal citations and quotation marks omitted). 
 



        21
      Id. (internal citations and quotation marks omitted).
 



        22       Id.
 



        23
      See also Loncar v. Gray, 28 P.3d 928, 932-33 (Alaska 2001) (holding that 



trial court properly excluded evidence related to Medicaid and Medicare benefits). 



                                                    -14-                                              6688
 


----------------------- Page 15-----------------------

Jones engaged in a variety of recreational activities and suggested that Jones was capable 



of   more   physical   activity   than   he   claimed. Because   Bowie   had   other   evidence   of 



malingering or failure to   mitigate damages that did not carry the same potential for 



prejudice as Jones's receipt of workers' compensation and social security benefits, the 

probative value of evidence related to receipt of benefits was reduced.24 



                Bowie relies on John's Heating Service v. Lamb25  to support its position, 



arguing that in that case we "found in favor of admitting evidence of collateral benefits 



based on the prior holding in  Tolan."        Bowie's reliance on John's Heating Service is 



misplaced:  There we questioned the applicability of the collateral source rule when "the 

benefits were ostensibly obtained as the result of an entirely separate injury."26               We 



upheld the trial court's admission of evidence of disability retirement benefits because 



the plaintiff's reason for receiving the benefits (a bad back) was inconsistent with his 

claim in the lawsuit that he was not able to work because of his neurological condition.27 



Here Jones obtained workers' compensation and social security benefits because of the 



loss of his leg, so the collateral source rule clearly applied. 



                The collateral source rule is founded on concern that information about 



other sources of recovery can prejudice the jury on issues of liability or lead the jury to 



        24      See Hiibschman v. City of Valdez, 821 P.2d 1354, 1366 (Alaska 1991) 



("The availability of alternative evidence goes to the probativeness of the evidence in 

dispute."). 



        25      46 P.3d 1024 (Alaska 2002). 



        26     Id. at 1043. 



        27     Id. at 1043-44. 



                                                -15-                                           6688
 


----------------------- Page 16-----------------------

think that the plaintiff will get a double recovery.28        Those considerations were present 



in Jones's case.   The line between an argument for damage reduction and mitigation was 



very fine in this case, which increased the danger of unfair prejudice.                Bowie focused 



considerable time at trial on Jones's reemployment benefits waiver.                   The agreement 



waiving benefits was admitted as an exhibit.             Bowie cross-examined Jones about it, 



asked both vocational experts about it, and argued in closing that it was evidence of 



malingering.      In closing   argument, Bowie attempted to link the lump sum workers' 



compensation payment to Jones's illegal drug use:             After arguing that Jones would not 



have   been   able   to   work   as   a   truck   driver   because   of   his   "drug   problem"   and   "drug 



history," Bowie said, "There's a reason he wasn't working.                 I think you know why.       I 



think you know what happened to the $67,000 from workers' comp and his mom's 



inheritance, why he's penniless and living in a truck.            I think you know why with his 



history."    Bowie also suggested that Jones got a large amount of cash for a variety of 



reemployment benefits, yet Jones received PPI for the loss of his leg, which he would 



have gotten whether or not he waived reemployment. 



                Bowie's   use   of the   evidence   related   to   Jones's   workers'   compensation 



benefits was problematic in other ways.  Bowie suggested in questioning witnesses and 



in closing that Jones had been entitled to any accident-related medical benefits he wanted 



after the time of the accident.       For example, Bowie suggested in questioning that Jones 



was     entitled   to  physical    therapy    and   psychological      services    through    workers' 



compensation for the five years preceding trial whenever his doctors prescribed them. 



Bowie also said that to get adaptive devices, Jones's doctors just needed to write him a 



prescription and workers' compensation would have provided them.  Bowie asked the 



jury to discount Jones's damages request, stating, "If he needed any of this, he could 



        28      See Loncar, 28 P.3d at 933. 



                                                  -16-                                              6688 


----------------------- Page 17-----------------------

have asked for it in the last five years and workers' comp was obligated to pay for this. 



He can't say, well, I couldn't afford it."         Bowie also said in   closing   that Jones was 



"[a]sking for hundreds of thousands of dollars for medical care and counseling that he's 



had the opportunity for and he's rejected."          These arguments could be interpreted as a 



request for the jury to reduce Jones's damages because of his workers' compensation 



eligibility. 



                Bowie's   argument   was   likely   to   cause   jury   confusion.    Eligibility   for 

medical benefits from workers' compensation is not unlimited,29 and certain types of 



treatment, such as physical therapy, are subject to additional statutory and regulatory 

limits.30   Even   if   Jones   were   eligible   for   future   medical   benefits   through   workers' 



compensation,   "AS   23.30.015(g)   includes   future   benefits   in   the   employer's   right   to 

reimbursement in the form of a credit."31        The potential for confusion of issues was high, 



and even with a limiting instruction, there was a significant danger of unfair prejudice 



to Jones. 



                Bowie's     use   of  evidence    related  to  social   security  benefits   was   also 



questionable.     It asked Jones's economist to estimate how much money Jones would 



have to receive in gross income to have a net income equal to the amount of social 



security benefits he was receiving.  Bowie suggested during the economist's testimony 



that the jury could find that Jones was not entitled to any damages if he had not in fact 



suffered a reduction in earning capacity, so Bowie's line of questioning about social 



security could lead to jury confusion and reduction of damages based solely on Jones's 



        29      AS 23.30.095(a), (c). 



        30      AS   23.30.095(c);   8   Alaska   Administrative   Code   (AAC)   45.082(e)-(h) 



(2011). 



        31      Stone v. Fluid Air Components of Alaska, 990 P.2d 621, 625 (Alaska 1999). 



                                                 -17-                                            6688
 


----------------------- Page 18-----------------------

receipt of social security disability payments. Bowie also objected to, and the trial court 



excluded,   testimony   from   Jones   attempting   to   minimize   jury   speculation   that   Jones 



would   get   a   double   recovery   through   receipt   of   social   security   if   the   jury   awarded 



damages. 



                Because the potential for confusion of the issues was great and the evidence 



was not highly probative of malingering, we are convinced that admitting evidence of 



Jones's receipt of workers' compensation and social security benefits was a clear abuse 



of discretion. 



                Even though admission of evidence is erroneous, we will reverse only if the 

error was not harmless.32      "A trial court's error in admitting evidence 'is harmless when 



there is no reasonable likelihood that the admitted evidence had an appreciable effect on 

[the trier of fact].' "33   To determine whether an erroneous admission of evidence was 



harmless, "we do our best to put ourselves in the position of the trier of fact."34             Among 



the factors we consider is "the degree of emphasis placed upon the evidence during the 

trial, both during questioning and in the closing arguments."35 



                After reviewing testimony and the final arguments, we hold that the error 



in admitting the collateral source evidence was not harmless.   Bowie questioned several 



        32      Brandner v. Hudson , 171 P.3d 83, 87 (Alaska 2007) (citing Alderman v. 



Iditarod Props., Inc. , 104 P.3d 136, 142 (Alaska 2004)). 



        33      Id. 



        34      Alderman , 104 P.3d at 142-43 (citing Dobos v. Ingersoll , 9 P.3d 1020, 1024 



(Alaska 2000)). 



        35      Alyeska Pipeline Serv. Co. v. O'Kelley , 645 P.2d 767, 773 (Alaska 1982) 



(citing Poulin v. Zartman , 542 P.2d 251, 261 (Alaska 1975)); see also Tolan v. ERA 

Helicopters,   Inc. ,   699   P.2d   1265,   1270   (Alaska   1985)   (noting   that   witnesses   were 

"questioned extensively" about litigation agreement and agreement was portrayed as 

"dishonorable" in closing argument). 



                                                  -18-                                             6688
 


----------------------- Page 19-----------------------

witnesses and Jones about his receipt   of   benefits and used his receipt of benefits in 



closing to suggest that he was not entitled to damages that he claimed.  Additionally, the 



jury's recommendation that future economic damages be held in trust to pay for medical 



expenses suggests that it was influenced by Bowie's intimation that Jones improperly 

used his lump sum workers' compensation payment.36 



                2.      Jones's past drug use 



                Jones also argues that the trial court erred in permitting Bowie to introduce 



evidence of his drug use more than five years before the accident because the evidence 



was unduly prejudicial and had little probative value about the main issues in the case. 



Jones claims that Bowie's "premise for the admission of the pre-accident drug use . . . 



was false."  He asserts that admission of the evidence was harmful because Bowie used 



the evidence inappropriately in its closing argument, citing the jury's recommendation 



that part of Jones's damages be placed in trust as proof of harm.  Bowie responds that the 



trial court acted within its discretion when it admitted the evidence and dismisses as 



"without merit" Jones's claim that the evidence was improperly argued during closing. 



                Before trial, both parties filed motions in limine about Jones's past drug 



use. Jones sought to exclude the drug-related evidence under Alaska Evidence Rule 403. 



Bowie   argued   that   the   court   should   admit   the   evidence   because   it   was   relevant   to 



damages for lost earnings.  Bowie asserted that "[i]t [was] ludicrous to think that anyone 



        36      Because Jones did not object during Bowie's closing   argument, Bowie 



argues that Jones waived any claim of error based on its closing.                Failure to object to 

Bowie's   closing   argument   waived   Jones's   right   to   claim   error   on   the   basis   of   the 

argument alone, but, as Bowie conceded at oral argument before us, Bowie's use of the 

evidence, including its use in closing, can be considered in analyzing whether erroneous 

admission of the evidence was harmless.  Cf. Tolan, 699 P.2d at 1270 (examining use of 

evidence in questioning and closing). 



                                                  -19-                                            6688
 


----------------------- Page 20-----------------------

would employ a truck driver or equipment operator with a drug and alcohol history." 



The court decided to exclude evidence related to Jones's drug history. 



                During   the   course   of   trial,   Bowie   asked   the   court   to   admit   drug   use 



evidence     three   times.   Two     times   the  court   decided    that  the  evidence     was   more 



prejudicial than probative.       During the testimony of its vocational expert, Dr. Choppa, 



Bowie again asked the court to permit it to bring in evidence of Jones's past drug use. 



Bowie claimed that it had been surprised by the testimony of Dr. Richard Parks, Jones's 



economics expert.  In his pretrial written report, Dr. Parks had estimated Jones's earning 



capacity based on Jones returning to work on the North Slope.                  Dr. Choppa's pretrial 



report indicated that he thought Dr. Parks's assumption that Jones would return to work 



on the North Slope as a truck driver was not reasonable.  At trial, Dr. Parks testified that 



one estimate of   Jones's earning capacity was based on Jones returning to work as a fuel 

truck driver in Anchorage rather than working on the North Slope.37 



                In arguing that the court should admit the drug use evidence, Bowie said 



that driving a fuel truck was a "a higher paying, higher level job" than being a regular 



truck driver and that Jones's past drug use would prevent him from working as a truck 



driver.  Bowie told the court that the earnings estimate based on driving a fuel truck had 



not previously been disclosed. In opposition, Jones argued that his highest earnings were 



during the years that he tested positive for drugs, which suggested that the evidence was 



not probative of his inability to be employed as a fuel truck driver.                   To counter the 



allegation of surprise, Jones noted that Dr. Choppa had written in his report that Jones 



could drive a truck, even after the injury, and that Dr. Choppa had knowledge of Jones's 



        37      The amount of estimated damages was the same in both reports.   Dr. Parks 



explained the discrepancy by testifying that he became aware when reviewing Jones's 

income history that Jones's highest earnings were in years when he drove a fuel truck in 

Anchorage. 



                                                  -20-                                               6688 


----------------------- Page 21-----------------------

positive drug tests before he wrote that report.         The court found that the evidence was 

probative and decided to admit it.38 



                Dr. Choppa testified that Jones had been admitted for chemical dependency 



treatment, that the admitting diagnosis was cocaine abuse, and that Jones would not be 



able to be a fuel truck driver.       In addition, Dr. Choppa testified that Jones had been 

terminated from a different job for "substance abuse urinalys[e]s that were positive."39 



Dr. Choppa testified that HAZMAT driving required a background check. 



                On    cross-examination,       Dr.  Choppa     conceded     that   Jones   still  had  a 



commercial driver's license.  He said that Jones could have been a truck driver "earning 



the kind of money he earned at Great Alaska or Titan."  When asked whether it was his 



opinion   that   Jones   "could   have   been   driving   [a]   truck   if   he   hadn't   been   injured   for 



everybody except HAZMAT," Dr. Choppa said: 



                No.    Any large -   any large company that -   they   all   do 

                background      checks.    My     son  has   a  commercial   driver's 

                license.     Drives   for   Costco.  He   has   [a]   urinalysis   every 

                month.    It's standard.    But - but landscaping companies, 



        38      The court did not articulate why the evidence was more probative than 



prejudicial, instead discussing surprise to Bowie as a reason for permitting introduction 

of the evidence.     Surprise is not a factor in a Rule 403 analysis.          The Commentary to 

Rule 403 indicates that surprise may be related to unfair prejudice, but also states that 

under Rule 403 the court balances "the probative value of and need for the evidence 

against the harm likely to resultfrom its admission ." (Emphasis added.)               Jones was the 

party harmed by admission of the drug-use evidence, not Bowie, so surprise to Bowie 

should not have been a factor in the court's Rule 403 analysis.  If Dr. Parks's testimony 

surprised Bowie, Bowie could have asked for a continuance or sought to exclude the 

novel part of his testimony.       See Alaska R. Evid. 403 Commentary.               In sum, surprise 

does not serve as a reason to admit otherwise prejudicial evidence. 



        39      It is not clear from the record what tests were positive for or exactly when 



they happened.  Outside of the jury's presence, the attorneys discussed the dates of two 

positive pre-accident urinalyses, one in September 1996 and one in May 1998. 



                                                 -21-                                            6688
 


----------------------- Page 22-----------------------

                they   don't   -   it's   not   quite   as   strict,   some   of   the   smaller 

                landscaping companies, and you don't make the money that 

                you do in the larger companies. 



Our review of the record did not reveal any testimony from Dr. Choppa that a fuel truck 



driver's pay scale was higher than that of a regular commercial truck driver. 



                After Dr. Choppa's testimony ended, Jones brought to the court's attention 



that there were discrepancies between Bowie's proffer and Dr. Choppa's testimony.  The 



court responded by saying, "to the extent you're asking for reconsideration, the court's 



denying reconsideration."        The day after the drug use testimony, the jury sent the court 



a note asking "to know the exact dates for the urine analysis which tested positive for 



drugs."  The court mistakenly thought the dates had been discussed in the testimony and 

did not answer the jury's question.40 



                Jones revisited this issue in his motion for a new trial, arguing again that 



Bowie's rationale for admission of the evidence was inaccurate.   The trial court denied 



Jones's motion for a new trial, stating that the drug use evidence was admitted "for the 



purpose of showing   that [Jones] would not likely be eligible to drive a fuel truck in 



Anchorage   in   the   future   and    make   the   kind   of   money   that   a   fuel   truck   driver   in 



Anchorage would make, not for any other purpose." 



                In reviewing the trial court's determination, we first look at the relevance 



of the evidence.     Here the trial court permitted Bowie to introduce evidence that it had 



previously determined was more prejudicial than probative based on Bowie's assertion 



that it had been unfairly surprised by Jones's damages calculations based on wages as 



a fuel truck driver.    At the time Bowie asked for admission of the evidence, it said that 



being a fuel truck driver was "a higher paying, higher level job." 



        40      Dr. Choppa's testimony noted only the year of one positive pre-accident 



urinalysis (1998) but not the exact dates of any tests. 



                                                  -22-                                               6688 


----------------------- Page 23-----------------------

                 The   drug   use   evidence   was   potentially   relevant   to   Jones's   future   lost 

earnings claim, the purpose for which the trial court admitted it.41             If a fuel truck driver 



made higher wages than a general truck driver and if driving a fuel truck had different 



drug or alcohol qualifications than those needed to haul other materials, the evidence of 



Jones's drug use could have undermined Jones's claim that he could have returned to 



work as a fuel truck driver in Anchorage. 



                 But Dr. Choppa's testimony did not match Bowie's rationale for admission, 



which tied the drug use to employment as a fuel truck driver.                Dr. Choppa divided low 



and high wage trucking jobs and, ultimately, Jones's prospects for employment as a truck 



driver based on the size of the company employing him, not on the material being hauled. 



As a result, the evidence of past drug use was not directly relevant to the point for which 



it was offered - to rebut Dr. Parks's testimony that Jones could have worked as a fuel 



truck driver. 



                 As we noted in Liimatta v. Vest , "[e]vidence of prior drug use . . . certainly 



presents a danger of unfair prejudice" because a jury could decide a case based on its 

judgment that a party is a bad person rather than on the merits of the case. 42                The trial 



court   was   cognizant   that   evidence   of   past   drug   use   was   prejudicial:   It   excluded   the 



evidence before trial and ruled twice at trial that drug use evidence was more prejudicial 



than probative.      The court's ruling on the motion for a new trial also suggests that it 



recognized that the evidence could have a prejudicial impact because it said that the 



evidence was admitted only for a limited purpose.  The jury was clearly interested in the 



drug use testimony:  It wrote a note to the court, asking for clarification of the evidence. 



        41      No one contends that the drug use evidence was probative of the central 



issues of the case, including allocation of fault. 



        42       45 P.3d 310, 315 (Alaska 2002). 



                                                   -23-                                               6688 


----------------------- Page 24-----------------------

                In balancing the probative value of the evidence against its danger of unfair 



prejudice, it was error to fail to strike Dr. Choppa's testimony when Jones brought to the 



court's   attention   the   discrepancies   between   the   testimony   and   Bowie's   proffer.    Dr. 



Choppa's testimony did not provide evidence to support the claim that Jones could not 



be a fuel truck driver rather than a general truck driver. 



                Admission   of   the   drug   use   evidence   was   harmful   to   Jones.  In   closing 



argument,   Bowie   referred   to   Jones's   drug   use   several   times.   Bowie   asserts   that   it 



"simply     argued    that  the  jury  should    not   calculate  future   wage   loss   based   on  the 



assumption that Mr. Jones was qualified to be employed as a fuel truck driver" because 



of his drug problems.       But besides arguing that the positive urinalyses would prevent 



Jones from working as a fuel truck driver, Bowie referred to Jones's "long history" of 



drug use, and it portrayed Jones's lifestyle as including drug use: Though Jones had 



presented himself as "an average middle class family man," Bowie told the jury, "you 



know he's living in a vehicle in a parking lot, not working, not paying his child support, 

using drugs."43    As we noted earlier, Bowie also implied in closing that Jones had used 



his workers' compensation money for drugs. The jury's recommendation that the award 



of future economic damages be put in trust to pay for future medical expenses suggests 



that it used the drug use testimony for more than an assessment of Jones's future earning 



capacity. 



        43      Testimony showed that Jones was living in a recreational vehicle in 2002- 



03, not at the time of his positive pre-accident drug screens in 1998 and earlier. 



                                                  -24-                                              6688 


----------------------- Page 25-----------------------

                3.	     Summary 



                The admission of both collateral source evidence and drug use evidence 



here was erroneous and prejudicial.   We therefore reverse the judgment and remand for 

a new trial.44 



        B.	     The Trial Court Did Not Err In Refusing To Give A Negligence Per Se 

                Instruction Against Great Alaska Lawn. 



                Jones   argues   that   the   court   erred   in   failing   to   give   a   negligence   per   se 



instruction against Great Alaska Lawn. Bowie maintains that the court properly declined 



to give a negligence per se instruction against Great Alaska Lawn because it was not 



acting as an employer when it lent the hydromulcher to Titan. 



                Jones asked the trial court to give a negligence per se instruction against 



Great   Alaska   Lawn   based   on   the   theory   that   as   an   employer,   it   was   charged   with 

knowledge   of   workplace   safety   regulations45       and   Great   Alaska   Lawn   operated   the 



hydromulcher        in  violation   of   the  regulations    for  eight   years   before    it  lent  the 



hydromulcher to Titan.   The trial court decided that the jury could use OSHA violations 



as evidence of Great Alaska Lawn's negligence, but it declined to give a negligence per 



se instruction against Great Alaska Lawn. 



                Violation of a statute or regulation can "amount[] to negligence as a matter 



of law . . . when the statute or regulation at issue defines a standard of conduct that a 



        44      Jones also appeals the trial court's denial of his motion   for a new trial, 



arguing that the evidence in support of the jury's verdict was so slight and unconvincing 

as to warrant a new trial.      Because we reverse the judgment and remand for a new trial 

on another basis, we do not decide this issue. 



        45      We refer to the workplace safety regulations as "OSHA regulations."  The 



Alaska Department of Labor and Workforce Development has adopted many of the 

regulatory standards of the United States Occupational Safety and Health Administration 

(OSHA) as the standards for workplace safety in Alaska.  See 8 AAC 61.1010 (2011). 



                                                  -25-	                                           6688
 


----------------------- Page 26-----------------------

reasonable person is expected to follow under the circumstances presented."46  We have 



previously   stated   that   "[w]here   there   exists   a   legislative   enactment   commanding   or 



prohibiting for the safety of others the doing of a specific act and there is a violation of 



such enactment solely by one whose duty it is to obey it, such violation constitutes 

negligence per se . . . ."47   But if Great Alaska Lawn violated the OSHA regulations, it 



did so when it was an employer, not when it supplied the equipment to Titan. 



                Great    Alaska    Lawn    did  not   have  a  duty   to  comply    with  the  OSHA 



regulation in its role as a supplier of equipment, even if it had a duty to do so when it 



employed Jones.       Jones was thus not entitled to a negligence per se instruction against 



Great Alaska Lawn even though the hydromulcher did not meet OSHA standards for 



guarding and had not met them during the time Jones worked for it.                  The purpose of 

OSHA and its regulations is to provide employees a safe workplace.48             In the regulations, 



"place of employment" is defined as "any place such as, but not limited to, a factory, 



plant, business, construction site, or other area, workplace or environment where work 

is performed by an employee of an employer."49              A supplier of equipment has a duty 



under the OSHA regulations to provide a safe working environment at its own work site, 



but it does not have a duty under the OSHA regulations to ensure the safety of another 



employer's place of employment. 



        46      Pagenkopf v. Chatham Elec., Inc. , 165 P.3d 634, 647 (Alaska 2007) (citing 



Bachner v. Rich , 554 P.2d 430, 441-42 (Alaska 1976)). 



        47      Bachner , 554 P.2d at 442. 



        48      AS 18.60.010; see also Indus. Union Dep't, AFL-CIO v. Am. Petroleum 



Inst. , 448 U.S. 607, 611 (1980) (noting that purpose of Occupational Safety and Health 

Act of 1970 was to ensure "safe and healthful working conditions"). 



        49      8 AAC 61.1930 (2011). 



                                                 -26-                                           6688
 


----------------------- Page 27-----------------------

                 Jones asserts that our holding in Cable v. Shefchik50 required a negligence 



per se instruction against Great Alaska Lawn, but Cable is distinguishable.  In Cable, we 



held that the trial court erred by failing to give a negligence per se instruction against an 

employer even though the injured plaintiff was not his employee.51                     But in  Cable the 



accident happened at the employer's work site, and the employer had allegedly violated 



regulatory standards of the Alaska General Safety Code meant to ensure a safe workplace 



for    its  employees,     which     we   had   previously      held   were    generally    applicable     to 

construction      sites.52   The    violation    was   the  basis   for  the  plaintiff's   claim    -   the 



defendant's   failure   to   maintain   a   safe   workplace   was   alleged   to   be   a   cause   of   the 

plaintiff's injury.53    If Jones had been injured at a work site operated by Great Alaska 



Lawn, he might have been entitled to a negligence per se instruction against it. But Jones 



argued in the trial court that Great Alaska Lawn and Titan were not a partnership or joint 



venture, so he cannot assert that Great Alaska Lawn had control over Titan's work site. 



Jones's theory of liability was based on Great Alaska Lawn's supplying the equipment, 



not its maintenance of an unsafe workplace. 



                 Jones   also   argued   that   Great   Alaska   Lawn   was   negligent   per   se   in   not 



complying with OSHA regulations during the time it used the equipment. But Jones was 



not injured during the time Great Alaska Lawn operated the equipment at its own work 



sites.   Because Great Alaska Lawn was not Jones's employer and did not have a duty 



under   the   OSHA   regulations   to   provide   him   with   a   safe   workplace,   the   trial   court 



properly refused to give a negligence per se instruction against Great Alaska Lawn. 



        50       985 P.2d 474 (Alaska 1999). 



        51       Id. at 478-79. 



        52       Id. at 477-78. 



        53       Id. 



                                                    -27-                                              6688
 


----------------------- Page 28-----------------------

        C.      It Was Error To Grant A Directed Verdict To Christianson. 



                Jones also appeals the directed verdict for Christianson. He advances three 



alternative arguments for reversing the trial court.   First, he contends that the trial court 



incorrectly found that AS 10.06.678, the statutory section related to winding up corporate 



affairs, applied to the case.   Alternatively, he argues that he presented enough evidence 



to pierce the corporate veil and hold Christianson personally liable for any tort that Great 



Alaska Lawn committed.   His last argument is that Christianson should be liable for his 



personal tortious activities, namely providing an unsafe machine to Titan. 



                Christianson responds that the court correctly concluded that there was 



inadequate evidence presented to pierce the corporate veil and that Great Alaska Lawn's 



loan of the hydromulcher to Titan did not violate the winding-up statute, which sharply 



limits corporate action that may be taken during the winding-up period.  He also asserts 



that   Jones   waived   any   argument   that   Christianson   should   be   liable   for   his   personal 



tortious activities by failing to raise it in the trial court. 



                The standard of review for a directed verdict is "whether the evidence, and 



all reasonable inferences which may be drawn from the evidence, viewed in the light 



most favorable to the non-moving party, permits room for diversity of opinion among 

reasonable   jurors."54     "If   there   is   room   for   diversity   of   opinion   among   reasonable 



persons, then the question is one for the jury to decide and a directed verdict is not 

appropriate."55    Viewing the evidence in the light most favorable to Jones, the evidence 



        54      City of Delta Junction v. Mack Trucks, Inc., 670 P.2d 1128 (Alaska 1983) 



(citing  City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 

1978)). 



        55      L.D.G., Inc. v. Brown , 211 P.3d 1110, 1125 (Alaska 2009) (citing Holiday 



Inns of Am., Inc. v. Peck , 520 P.2d 87, 92 n.12 (Alaska 1974)). 



                                                  -28-                                             6688
 


----------------------- Page 29-----------------------

and reasonable inferences from it were adequate to present a jury question on both the 

piercing issue and the winding-up issue.56 



                We have previously held that the question whether a corporate veil can be 



pierced under the mere instrumentality test involves a consideration of the six factors set 

out in Uchitel Co. v. The Telephone Co.:57 



                whether (a) the shareholder sought to be charged owns all or 

                most of the stock of the corporation; (b) the shareholder has 

                subscribed to all of the capital stock of the corporation or 

                otherwise caused its incorporation; (c) the corporation has 

                grossly     inadequate     capital;  (d)  the   shareholder    uses   the 

                property of the corporation as his own; (e) the directors or 

                executives of the corporation act independently in the interest 

                of   the   corporation    or  simply    take   their  orders   from   the 

                shareholder in the latter's interest; and (f) the formal legal 

                requirements of the corporation are observed.[58] 



A party seeking to pierce the corporate veil does not need to present evidence of all six 



factors;   the   factors   assist   the   trial   court   to   determine   "whether   the   evidence   favors 

piercing the veil."59 



                The evidence in this case and inferences from it could satisfy several of the 



factors.   Christianson was the sole shareholder and caused   the incorporation of both 



        56      As to Jones's third basis for challenging the directed verdict, we agree with 



Christianson that Jones waived his argument that Christianson should be liable for his 

personal tortious activities by not raising it in the trial court.             Jones did not dispute 

Christianson's assertion that he failed to raise the issue in the trial court, and our review 

of the record did not reveal that Jones raised this argument. 



        57      646 P.2d 229 (Alaska 1982). 



        58      L.D.G. , 211 P.3d at 1126 (citing Uchitel, 646 P.2d at 235). 



        59      Id. (citing Nerox Power Sys., Inc. v. M-B Contracting Co. , 54 P.3d 791, 802 



(Alaska 2002)). 



                                                  -29-                                             6688
 


----------------------- Page 30-----------------------

Great Alaska Lawn and Titan.           The state involuntarily dissolved Great Alaska Lawn, 



indicating that Christianson did not observe all of the formalities of the corporate form. 



A reasonable factfinder could infer that Christianson did not act independently in the 



interests of the corporation and effectively used corporate assets as his own because of 



the   "loan"   of   the   hydromulcher   to   Titan.  Christianson   did   not   introduce   any   loan 



documents related to the hydromulcher or other equipment he let Titan use at no charge. 



                Jones was also entitled to have the jury decide whether Christianson was 



in fact winding up corporate affairs, as he claimed.   Alaska Statute 10.06.678(a) permits 



a dissolved corporation to continue its existence only for the purpose of winding up 



corporate business.      If Christianson conducted business as Great Alaska Lawn after its 

dissolution, he can be held personally liable for his actions.60         The evidence presented at 



trial could support the inference that Christianson continued to operate Great Alaska 



Lawn as a business after its involuntary dissolution.             Great Alaska Lawn owned the 

hydromulcher, which Christianson loaned to Titan.61              Two vehicles, which Titan used, 



were registered under Great Alaska Lawn's name after Jones's accident.  In addition, 



Christianson testified that he advertised by using "stickers on our trucks" and that Great 



Alaska Lawn's phone number was painted on the side of the hydromulcher at the time 



of the accident. 



                In sum, sufficient evidence was presented at trial to present a jury question 



on both theories of Christianson's personal liability. 



        60      See Steenblick v. Lichfield, 906 P.2d 872, 877-79 (Utah 1995) (holding that 



officers    and   directors   are  liable  for  corporate    debts   incurred   after  suspension     of 

corporation and noting that this is the majority rule). 



        61      Christianson testified that ownership of the hydromulcher was transferred 



to Titan in 2005. 



                                                 -30-                                            6688
 


----------------------- Page 31-----------------------

V.	    ISSUES RELATED TO BOWIE'S CROSS-APPEAL 



              Bowie raises several issues in its cross-appeal.  Because we are remanding 

for a new trial, we address the issues that will likely recur at a second trial.62 



       A.	    The Trial Court Did Not Err In Instructing The Jury On A Post-Sale 

              Duty To Warn. 



              Bowie asserts that the trial court erred in instructing the jury on Jones's 



post-sale duty to warn claim on two alternative grounds:   It asks us to hold that it had no 



post-sale duty to warn or, if we decide that it had such a duty, to find that Jones failed to 



produce enough evidence to justify instructing the jury on the issue.  Jones contends that 



the trial court's decision is unreviewable.    In the alternative, he argues that the court 



correctly instructed the jury using the Restatement (Third) of Torts: Products Liability 



section 10 and that he provided adequate evidence to let the jury decide his claim. 



              When a trial court denies summary judgment on factual grounds, the order 



would ordinarily not be reviewable after a trial on the merits.63      Here, the trial court 



denied partial summary judgment without explanation, and the parties disagree about 



whether the denial was due to material factual disputes.      Whether the court's decision 



was based on facts or was simply a legal ruling is unimportant in this case because we 



are reversing the trial court's judgment on other grounds and address the issue to provide 



guidance to the trial court on remand. 



              The parties agree that under Alaska law, the manufacturer of a product that 



is defective at the time of sale has a duty to warn of dangers in the product.  Some courts 



       62     We do not address Bowie's contention that the court erred in permitting 



Jones to call a previously unidentified rebuttal expert witness.     This issue is moot and 

will likely not arise on remand.   Parnell v. Peak Oilfield Serv. Co. , 174 P.3d 757, 769 

(Alaska 2007). 



       63     Larson v. Benediktsson , 152 P.3d 1159, 1169 (Alaska 2007). 



                                            -31-	                                       6688
 


----------------------- Page 32-----------------------

have also recognized that a manufacturer has a post-sale duty to warn even when the 



manufacturer became aware of the danger only after the time of sale.64  A post-sale duty 



to warn is imposed on a manufacturer in part because it is in a "unique (and superior) 



position to follow the use and adaptation of its product by consumers."65 



                The circumstances triggering a post-sale duty to warn are not uniform in 



these decisions.  Some courts have decided that the duty arises only when the danger is 



potentially life-threatening.66    Others have found a duty when the defect existed at the 



time of sale, even if the defect became apparent only after sale.67           A few courts have 



imposed a limited duty to inform known users of safety improvements.68                Recognizing 



that a duty to warn of any possible post-sale danger could be unduly burdensome, courts 



have considered the reasonableness of imposing the duty in a given case.69 



        64     See, e.g., Patton v. Hutchinson Wil-Rich Mfg. Co. , 861 P.2d 1299, 1313 



(Kan. 1993) (recognizing post-sale duty to warn of potentially life-threatening defects 

discovered after sale); Brown v. Crown Equip. Corp., 960 A.2d 1188, 1193-94 (Me. 

2008)     (holding   that  post-sale   duty   to  warn    existed   at  common     law   in  certain 

circumstances); Lewis   v.   Ariens   Co. ,   751   N.E.2d   862,   867   (Mass.   2001)   (adopting 

Restatement (Third) of Torts: Products Liability  10 as standard for post-sale duty to 

warn but holding that there was no duty as a matter of law in the case); Cover v. Cohen, 

461 N.E.2d 864, 871 (N.Y. 1984) (setting out factors for court to consider in deciding 

whether manufacturer has a post-sale duty to warn). 



        65     Liriano v. Hobart Corp. , 700 N.E.2d 303, 307 (N.Y. 1998). 



        66     Patton , 861 P.2d at 1313. 



        67     Downing v. Overhead Door Corp. , 707 P.2d 1027, 1033 (Colo. App. 1985). 



        68      Kozlowski v. John E. Smith's Sons Co., 275 N.W.2d 915, 923 (Wis. 1979). 



        69     See Lewis, 751 N.E.2d at 867 n.18 (summarizing factors considered by 



courts in reasonableness standards). 



                                                -32-                                          6688
 


----------------------- Page 33-----------------------

                We hold that a manufacturer has a post-sale duty to inform consumers of 



its products of dangers that became apparent after sale when the danger is potentially 



life-threatening.   We adopt the Restatement (Third) of Torts: Products Liability section 



                                                  70 

 10 as the standard to apply in such cases. 



                Bowie contends that even if it had a post-sale duty to warn, Jones failed to 



present sufficient evidence for the claim to go to the jury.   The Restatement sets out four 



factors to balance in determining whether a reasonable person in the seller's position 



would provide a post-sale warning.71           It contemplates that a court will make an initial 



determination that some evidence has been introduced to support each factor before 



instructing a jury on the question.72      The trial court summarized the evidence that it found 



justified   letting   the   jury   decide   the   issue. We   agree   with   the   trial   court   that   Jones 



presented enough evidence on each of the factors to let the case go to the jury.73 



        70      We do not hold that there is a duty to warn of technological improvements 



or   to   recall   a   defective   product. The   principal   defect   that   Jones   identified   in   the 

hydromulcher        was   lack   of  guarding.      Adequate     guarding     is  not  a  technological 

innovation.      Jones's mechanical engineering expert testified that the need for guarding 

of dangerous moving parts was recognized in machine design as early as 1916 and by 

the 1940s and 1950s government publications showed engineers how to address hazards 

by means   of mechanical guarding.            The guarding added after the OSHA inspection 

consisted of railing around the opening where the mulch was fed. Bowie's hydroseeding 

industry expert, who was also a Bowie dealer, testified that he welded guarding around 

the openings on used hydromulchers for safety purposes. 



        71      RESTATEMENT (THIRD) OF TORTS : PRODUCTS LIABILITY  10(b) (1998). 



        72      Id. at  10 cmt. a. 



        73      We review this issue as we would a motion for a directed verdict, viewing 



the evidence in the light most favorable to Jones to see whether reasonable jurors could 

differ in their judgment.  See Chenega Corp. v. Exxon Corp., 991 P.2d 769, 794 (Alaska 

 1999) (quoting Hahn v. Russ , 611 P.2d 66, 67 (Alaska 1980)). 



                                                  -33-                                             6688
 


----------------------- Page 34-----------------------

                 The first factor in the Restatement is that "the seller knows or reasonably 



should know that the product poses a substantial risk of harm to persons or property."74 



Jones presented evidence that Bowie knew the hydromulcher posed a substantial risk of 



harm.   A few years after Bowie first manufactured and distributed its hydromulchers, it 



became aware that workers were using their feet to force mulch into the opening and 



were suffering severe injuries as a result.          In 1973 Bowie's safety engineer testified in 



a   South   Dakota   amputation   case   that   there   was   a   "natural   inclination"   or   "natural 



reaction" for workers to use their feet to unclog the shredder and that the machine should 



have been designed with this reaction in mind.               Bowie's argument that Jones did not 



present enough evidence of harm rests on the relative infrequency of severe accidents, 



but infrequent, severe accidents can still cause substantial harm.75 



                 The second factor is that the seller can identify the recipients of the warning 

and that those recipients can reasonably be assumed to be unaware of the risk.76                   Bowie 



claims that Jones offered no evidence that Bowie could reasonably identify Titan in order 



to   provide   a   warning.   But   the   Restatement   does   not   require   individual   names   and 



addresses   of   ultimate   users.77   Even   so,   Jones   presented   evidence   that   Bowie   could 



identify some remote purchasers through parts sales because Bowie kept lists of parts 



customers.     Jones also presented evidence, which Bowie contested, that Great Alaska 



        74       RESTATEMENT (THIRD) OF TORTS : PRODUCTS LIABILITY  10(b)(1). 



        75      Id.   cmt.   d   ("[N]o   duty   arises   after   the   time   of   sale   to   issue   warnings 



regarding product-related accidents that occur infrequently and are not likely to cause 

substantial harm." (emphasis added)). 



        76       RESTATEMENT (THIRD) OF TORTS : PRODUCTS LIABILITY  10(b)(2). 



        77      Id. cmt. e ("Individual names and addresses are not necessarily required. 



Records may indicate classes of product users, or geographically limited markets."). 



                                                   -34-                                              6688
 


----------------------- Page 35-----------------------

Lawn had in fact contacted Bowie to order parts for the hydromulcher.  Bowie produced 



relatively few hydromulchers like the one that injured Jones, making identification of the 



class   of  ultimate   users   less  burdensome.       Finally,   hydromulchers      are  specialized 



machines with a limited population of users, so that advertisements in trade publications 



were another viable method of contacting or warning remote users of the machines.78 



                The third factor is that "a warning can be effectively communicated to and 



acted on by those to whom a warning might be provided."79               Bowie's argument related 



to communicating the warning focuses on individualized notice.                Yet the Restatement 



does not limit communications to individual notices, specifically mentioning that using 



public media may be required.80       Jones presented evidence that Bowie kept a list of parts 



customers but had not made an effort to send warnings to parts customers who were 



different from the original purchasers, and that Bowie had not placed a notice in trade 



publications in which it advertised.        Jones showed that a warning could be acted on 



through Christianson's testimony that his company had in fact made the recommended 



changes after the accident.81 



        78      Cf. Kozlowski v. John E. Smith's Sons Co., 275 N.W.2d 915, 923 (Wis. 



1979) (noting that sausage stuffer's limited market was a factor in considering whether 

manufacturer had a continuing duty to warn). 



        79      RESTATEMENT (THIRD) OF TORTS : PRODUCTS LIABILITY  10(b)(3). 



        80      Id. cmt. g ("When direct communication is not feasible, it may be necessary 



to   utilize   the   public   media   to   disseminate   information   regarding   risks   of   substantial 

harm."). 



        81      Bowie claims that Titan's and Great Alaska Lawn's failure to make the 



hydromulcher OSHA compliant shows that a warning would probably have been futile. 

But Jones only needed to provide evidence that a warning could be acted upon, not that 

it would be acted upon. 



                                                 -35-                                           6688
 


----------------------- Page 36-----------------------

                The fourth factor is that the risk of harm is sufficiently great to justify the 



burden of providing a warning. Even though accidents like Jones's were infrequent, they 



were severe.      Bowie offered no explanation for why it did not include a warning or 



information related to guarding with parts orders. Viewing the evidence in the light most 



favorable to Jones, there was sufficient evidence on each of the factors set out in the 



Restatement to justify giving the case to the jury. 



                Bowie also argues that even if Jones proved the elements of a post-sale 



warning claim, there was nonetheless no duty to warn in this case because any danger 



was   open   and   obvious.    Jones   counters   that   the   danger   cannot   have   been   open   and 



obvious   given   the   number   of   similar   accidents   and   the   testimony   of   Jones   and   his 



coworkers about their training and experiences.  Jones contends that workers using their 



feet   to   push   mulch   into   the   opening   was   reasonably   foreseeable.       Indeed,     Jones 



presented   evidence   that   workers   were   unaware   of   the   risk   of   harm.   He   introduced 



evidence of similar accidents and presented testimony from his coworkers that before his 



accident, they were unaware that the hydromulcher could cause such severe injuries. 



Jones and his coworkers testified that it was not uncommon to use their feet to push on 



mulch bales that did not feed properly, although their descriptions of how they used their 



feet differed. He testified that he had seen another worker's foot contact the shredder bar 



with no ill effects and that his foot had bounced off the shredder bar on prior occasions. 



And,   as   Bowie's   biomechanics   expert   testified,   a   bale   of   mulch   would   obscure   the 



shredder bar from a worker who was pressing down on the bale with his foot.  Jones also 



presented the testimony of Bowie's former safety engineer agreeing that it was a "natural 



reaction" or a "natural inclination" of a worker to use his   foot to   press on mulch to 



unclog the machine. 



                                                   -36-                                             6688
 


----------------------- Page 37-----------------------

                 We   have   previously   held   that   a   manufacturer   has   "no   duty   to   warn   of 



hazards   or    dangers    that   would    be  readily   recognized      by  the  ordinary     user  of   the 



product."82    Viewing the evidence in the light most favorable to Jones, we conclude that 



the   question    whether     the  danger    presented     by   the  shredder    bar   would    be  readily 



recognized   by   an   ordinary   user   of   the   hydromulcher   is   a   question   of   fact   that   was 



properly left to the jury. 



                 Finally, Bowie asserts that applying a post-sale duty to warn to it in this 



case would   violate its due process rights because it would be fundamentally unfair. 



Bowie waived this argument by not raising it in the trial court.83                 We have previously 



held that "[a]bsent special circumstances, a new decision of this court will be given effect 



in   the   case   immediately   before   the   court."84    Bowie   waived   any   argument   that   this 



decision should not apply to it based on equitable factors because it raised that issue for 



the first time in its reply brief.85 



        B.	      The     Trial   Court     Did    Not    Err   In   Refusing      To   Dismiss     Jones's 

                 Negligence Claims Based On The Statute Of Repose. 



                 Bowie argues that the trial court erred in denying its motion to dismiss 



Jones's negligence claims based on the statute of repose.   Bowie contends here, as it did 



in   the  trial  court,   that   only  Jones's   strict  products    liability   claim   falls  within   the 



        82	      Prince v. Parachutes, Inc. , 685 P.2d 83, 88 (Alaska 1984) (citing Patricia 



R. v. Sullivan, 631 P.2d 91, 102 (Alaska 1981)). 



        83       See Gunter v. Kathy-O-Estates, 87 P.3d 65, 69 n.10 (Alaska 2004) (citing 



Reid v. Williams , 964 P.2d 453, 456 (Alaska 1998)) (declining to address argument not 

raised below). 



        84       Plumley v. Hale , 594 P.2d 497, 502 (Alaska 1979). 



        85       Rausch v. Devine , 80 P.3d 733, 740 n.32 (Alaska 2003) (citing Childs v. 



Tulin, 799 P.2d 1338, 1340 n.5 (Alaska 1990)). 



                                                    -37-	                                             6688
 


----------------------- Page 38-----------------------

"defective product" exception to the statute of repose and that his two negligence claims 



have been extinguished by the ten-year limit on personal injury actions.  Jones responds 



that Bowie raised the statute of repose too late and that the trial court correctly construed 



the "defective products" exception to include negligence actions as well as strict products 



liability actions. 



                   Interpretation of a statute is a question of law to which we apply our 



independent judgment; we interpret the statute "according to reason, practicality, and 



common sense," considering the meaning of the statute's language, its legislative history, 



and its purpose.86 



                 Alaska Statute 09.10.055 provides in pertinent part: 



                 (a)      . . . [A] person may not bring an action for personal 

                 injury, death, or property damage unless commenced within 

                 10 years of the earlier of the date of 



                          . . . . 



                 (2) the last act alleged to have caused the personal injury, 

                 death, or property damage. 



                 (b) This section does not apply if 



                 (1) the personal injury, death, or property damage resulted 

                 from 



                          . . . . 



                 (E)   a   defective    product;    in  this  subparagraph,       "product" 

                 means an object that has intrinsic value, is capable of delivery 

                 as   an   assembled   whole   or   has   a   component   part,   and   is 

                 introduced into trade or commerce. . . . 



         86      Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003) (quoting Native Vill. 



of Elim v. State, 990 P.2d 1, 5 (Alaska 1999)). 



                                                    -38-                                                  6688 


----------------------- Page 39-----------------------

                Bowie argues that "defective product" as used in the statute of repose is a 



"term of art describing a particular legal theory," namely strict products liability.  Bowie 



maintains that because courts have recognized separate causes of action for negligence 



and strict products liability, the legislature intended "defective product" to exempt only 



strict products liability actions from the statute of repose. 



                The language of the statute does not support Bowie's interpretation.                 "In 



assessing statutory language, 'unless words have acquired a peculiar meaning, by virtue 



of statutory definition or judicial construction, they are to be construed in accordance 

with their common usage.' "87  Here, the legislature defined "product," and this definition 



refers to the tangible thing that causes an injury, not to the legal theory that a plaintiff 

might use to recover for the injury.88        What qualifies as a product may "establish[] the 



boundaries of the subject matter affected by strict products liability in tort."89              But the 



common law recognizes that persons injured by a defective product can bring suits in 

negligence as well as strict products liability, just as Jones did here.90            Bowie points to 



no cases establishing that the phrase "defective product" has the established meaning of 



        87      Muller v. BP Exploration (Alaska), Inc. , 923 P.2d 783, 788 (Alaska 1996) 



(quoting Tesoro Alaska Petroleum Co. v. State, 746 P.2d 896, 905 (Alaska 1987)). 



        88      AS 09.10.055(b)(1)(E). 



        89      RESTATEMENT (THIRD) OF TORTS :PRODUCTS LIABILITY 19 reporter's note 



cmt. a. (1998). 



        90      See 2 DAN B. DOBBS, THE LAW OF TORTS  357 (2001); W. PAGE KEETON 



ET AL ., PROSSER & KEETON ON THE LAW OF TORTS   99 (5th ed. 1984); see also Gerrity 

v.   R.J.  Reynolds    Tobacco     Co.,   818   A.2d    769,   773-74    (Conn.    2003)   (noting    that 

legislature   defined   product   liability   claim   to   include   all   claims   caused   by   defective 

products). 



                                                  -39-                                             6688
 


----------------------- Page 40-----------------------

"strict products liability" at common law.91        The Restatement (Third) of Torts: Products 



Liability refers to "strict products liability," not "defective product," as a "term of art that 



reflects the judgment that products liability is a discrete area of tort law which borrows 

from both negligence and warranty."92 



                The legislative history also fails to provide evidence that the legislature 



meant the "defective product" exception to be limited to strict products liability causes 



of action.   Representative Brian Porter, a sponsor of the legislation, commented that the 



defective product exception was "one of the biggest exceptions" to the statute of repose 



and cited Thalidomide as an example of a defective product; his comments do not reflect 

any intent to exclude negligence actions from the defective product exception.93 



                Because AS 09.10.055(b)(1)(E) contains an express exception to the statute 



of repose for injuries resulting from defective products and does not distinguish between 



different theories of recovery for those injuries, we hold that the statute of repose did not 



extinguish Jones's causes of action against Bowie for negligence. 



        C.	     The Trial Court Did Not Err In Instructing The Jury On Punitive 

                Damages. 



                Bowie contends that the trial court erred in permitting the jury to decide 



whether to impose punitive damages, arguing first that Jones failed to establish that 



Bowie's conduct had an impact on Alaska or its residents and implying that a punitive 



        91      See Morissette v. United States, 342 U.S. 246, 263 (1952) (holding that 



where there is no definition in a statute, a word in the statute is construed to have its 

common law meaning). 



        92      RESTATEMENT (THIRD) OF TORTS : PRODUCTS LIABILITY  1 cmt. a. 



        93      Minutes, H. Jud. Comm. Hearing on S.S.H.B. 58, 20th Leg. 1st Sess., Tape 



No.   97-23,   Side   A   at   0846-1050,   (Feb.   21,   1997)   (Statement   of   Rep.   Brian   Porter, 

sponsor). 



                                                 -40-	                                           6688
 


----------------------- Page 41-----------------------

damages instruction violated its constitutional right to due process.94                It argues in the 



alternative that there was insufficient evidence of conduct that Bowie acted with actual 



malice or reckless indifference to instruct the jury on punitive damages.  Jones responds 



that Bowie waived its constitutional argument and that the trial court acted within its 



discretion when it instructed the jury on punitive damages.  The trial court instructed the 



jury on punitive damages related to Jones's post-sale failure to warn claim, finding that 



he had presented enough evidence to meet the threshold for punitive damages only on 



this claim. 



                We   agree   with   Jones   that   Bowie   waived   its   argument   that   a   punitive 

damages instruction violated its due process rights.95   Bowie's constitutional argument 



to the trial court was substantially different from its constitutional argument here.  In the 



trial court, Bowie argued that the court lacked jurisdiction to impose punitive damages 



because   Texas,   the   state   where   Bowie's   principal   place   of   business   is   located,   had 



rejected a post-sale duty to warn.          Here, in contrast, Bowie argues that imposition of 



punitive damages would violate its due process rights because Jones did not present 



evidence that Bowie's failure to warn hydromulcher owners of possible dangers had any 



impact on Alaskans.        Although Bowie relies on the same cases to make this argument, 



a jurisdictional argument based on Texas law is substantially different from an argument 

about the impact of Bowie's actions on Alaska residents.96 



        94      Bowie does not explicitly argue that the instruction on punitive damages 



violated its due process rights, but this argument is implied by the cases Bowie cites. 



        95      See Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 



 1064, 1083 (Alaska 2009) (citing Still v. Cunningham , 94 P.3d 1104, 1111 (Alaska 

2004)) (holding that failure to raise specific arguments in superior court waived them). 



        96       Cf. Still, 94 P.3d at 1111 (holding that defendant waived arguments related 



                                                                                         (continued...) 



                                                  -41-                                             6688
 


----------------------- Page 42-----------------------

              Even if we were to consider Bowie's argument, Jones presented evidence 



that  Bowie's failure to take additional steps to warn users of the risks associated with 



the unguarded opening had an impact on Jones, who lived in Alaska at the time of the 



accident. The cases Bowie relies on may prohibit an Alaska court from punishing Bowie 



for any impact its actions had on residents of other states, but nothing in those cases 

prohibits imposition of punitive damages for harm caused to Alaskans, including Jones.97 



              We also reject Bowie's state law argument.   At the end of Jones's case-in- 



chief, Bowie moved for a directed verdict on the punitive damages claim, alleging that 



Jones had not introduced enough evidence of recklessness; the trial court denied its 



motion.    We review a decision to submit a punitive damages instruction to the jury for 



an abuse of discretion; because we are reviewing the denial of a motion for a directed 

verdict, we consider the evidence in the light most favorable to Jones.98 



               To receive an award of punitive damages, a plaintiff must prove "by clear 



and convincing evidence that the defendant's conduct (1) was outrageous, including acts 



done with malice or bad motives; or (2) evidenced reckless indifference to the interest 

of another person."99   Jones stated at trial that he was not alleging Bowie acted with 



       96(...continued) 



to mistake and misrepresentation because he did not raise them in superior court, even 

though his affidavit could have supported the arguments). 



       97     State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003) 



("[E]ach State alone can determine what measure of punishment, if any, to impose on a 

defendant who acts within its jurisdiction."); BMW of N. Am., Inc. v. Gore , 517 U.S. 559, 

569 (1996). 



       98     Pederson v. Barnes , 139 P.3d 552, 562 (Alaska 2006) (citing  Wal-Mart, 



Inc. v. Stewart , 990 P.2d 626, 632, 637 (Alaska 1999)). 



       99     AS 09.17.020(b). 



                                            -42-                                       6688
 


----------------------- Page 43-----------------------

malice,   so   we   must   consider   whether   there   was   sufficient   evidence   that   Bowie   was 



recklessly indifferent to Jones's interests. 



                 Viewing the evidence in the light most favorable to Jones, we hold that he 



produced sufficient evidence of reckless indifference to give the case to the jury.   As we 

noted   in  Lamb   v.   Anderson ,100     we   have   adopted   the   Restatement   view   of   reckless 



disregard, which "view[s] recklessness as unreasonably disregarding a known risk of 

substantial physical harm to another."101  Jones presented evidence that Bowie was aware 



of amputations caused by its hydromulchers shortly after it began to market them, many 

years before the accident here.102        He showed that Bowie had added a railing around the 



opening   in   1968   and   that the railing was inexpensive to install.           But in spite of this 



knowledge and the low cost of adding a railing, Bowie sent out a warning about possible 



dangers only once - at about the same time it was found liable in another amputation 



lawsuit.    Bowie offered no explanation for its failure to take additional steps to warn 



users of the dangers of using their feet to press on mulch or to suggest to users that they 



install guarding around the opening, even though it was aware that amputations were still 



happening.     As the trial court noted, Bowie was "remarkably uninvolved" in trying to 



identify   and   contact   users   of   its   older   machines.  Although   the   jury   did   not   award 



punitive damages to Jones, the trial court did not err in instructing the jury on punitive 



damages. 



        100      147 P.3d 736 (Alaska 2006). 



        101     Id. at 744-45. 



        102      In   contrast,   we   previously   held   that   there   was   insufficient   evidence   of 



outrageous conduct when a manufacturer had received reports of similar injuries close 

to the time of the accident that was the subject of the lawsuit.  Ross Labs. v. Thies , 725 

P.2d 1076, 1082 (Alaska 1986). 



                                                   -43-                                              6688
 


----------------------- Page 44-----------------------

VI.    CONCLUSION 



              Because we conclude that the trial court improperly admitted prejudicial 



evidence and the error was not harmless, we REVERSE the judgment of the trial court 



and REMAND for a new trial against Bowie and Great Alaska Lawn.            We REVERSE 



the trial court's directed verdict for Christianson and REMAND for retrial.  We uphold 



the trial court's decisions to instruct the jury on punitive damages and Jones's negligent 



failure to warn claim.  We AFFIRM the trial court's decision not to give a negligence per 



se instruction against Great Alaska Lawn and its decision that the statute of repose did 



not extinguish Jones's negligence claims. 



                                           -44-                                      6688
 

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC