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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Heynen v. Fairbanks (2/1/2013) sp-6748

Heynen v. Fairbanks (2/1/2013) sp-6748

        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 



ELIZABETH HEYNEN,                              ) 

                                               )       Supreme Court No. S-13834 

                        Appellant,             ) 

                                               )       Superior Court No. 1JU-07-00710 CI 

        v.                                     ) 

                                               )       O P I N I O N 

JULENE FAIRBANKS,                              ) 

                                               )       No. 6748 - February 1, 2013 

                        Appellee.              ) 

                                               ) 



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

                Judicial District, Juneau, Philip M. Pallenberg, Judge. 



                Appearances:       Caitlin    Shortell,   Shortell   Gardner     LLC, 

                Anchorage, and Mark C. Choate, Choate Law Firm, Juneau, 

                for Appellant.    Paul W. Waggoner, Law Offices of Paul W. 

                Waggoner, Anchorage, for Appellee. 



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

                Stowers, Justices. [Christen, Justice, not participating.] 



                CARPENETI, Chief Justice. 



I.      INTRODUCTION 



                A tenant fell on the outside stairs of her rented apartment and sustained a 



serious   back   injury.   When   she   fell,   one   of   the   wooden   stairs   broke.   She   sued   her 



landlord, from whom she subleased the apartment, alleging that her fall was caused by 



the landlord's negligent failure to inspect and maintain the staircase. 


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

                Before trial, the tenant filed a series of motions in limine, including one 



seeking to prevent the admission of evidence not previously disclosed during discovery 



on the issues of comparative negligence and failure to inspect and maintain, and another 



seeking to prevent the defendants from misstating the respective duties of landlords and 



tenants.   The superior court denied these motions.  At the close of evidence, the tenant 



moved for a directed verdict on the landlord's comparative negligence defense and the 



landlord's attempt to allocate fault to a deceased party.  She also moved to preclude the 



landlord   from   making   arguments   based   on   medical   records   admitted   at   trial.     The 



superior court denied each motion.         The jury returned a verdict finding no negligence. 



                The tenant appeals the denial of her motions in limine and for directed 



verdict, as well as the superior court's denial of her motion to preclude opposing counsel 



from arguing from certain medical records. She also argues that the superior court erred 



in allowing the landlord to attempt to allocate fault to a deceased party.              Finally, she 



argues that the jury's finding that the landlord was not negligent was contrary to the 



evidence. 



                Because the superior court did not err, because the jury's verdict was not 



contrary to the evidence, and because the medical records issue is moot, we uphold the 



jury's verdict and affirm the superior court's rulings. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts And Pretrial Proceedings 



                On October 21, 2006, Elizabeth Heynen (Heynen) fell on the exterior stairs 



of   her   second-floor    rented   apartment    in  Skagway.      The    apartment    building    was 



constructed by its owner, Leslie Fairbanks (Leslie), in 1990-91.             In April 2006, Leslie 



leased   the   building   to   his   daughter,   Julene   Fairbanks   (Julene). Julene   operated   a 



specialty food store on the ground floor, where Heynen was an employee.                  Julene also 



rented the upstairs apartment to Heynen. 



                                                  -2-                                           6748
 


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

                In June 2007, Heynen filed a complaint for personal injury.                She alleged 



that   she   fell   when   she   "exited   her   .   .   .   apartment,   intending   to   descend   the   outside 



stairway to take her dog for a walk" and "the edge of the first step below the upper 



landing crumbled underfoot causing her to fall down backwards, landing on her buttocks 



and severely striking her lower spine on the edge of the landing." The complaint detailed 



Heynen's medical problems following the fall, which she claimed caused immediate pain 



and permanent injuries and required her to have spinal surgery.  Heynen further alleged 



that both Leslie and Julene had breached their duties as landlords to inspect, maintain, 



and repair the staircase and that their negligence had been a substantial factor in causing 



her injuries.   Heynen sought general and special damages as well as fees and costs. 



                Leslie and Julene each answered the complaint.               They denied Heynen's 



allegations     and   presented    a  number    of  affirmative    defenses,    including    third-party 



negligence, failure to mitigate, and comparative negligence.  Heynen filed an amended 



complaint on October 12, 2007, in which she argued   that the defendants' failure to 

maintain   the   premises   as   required   by   AS   34.03.1001    constituted   negligence   per   se. 



Heynen also filed a motion to establish, as "the law of the case," that Leslie and Julene 



had a "duty to inspect, maintain and remedy dangerous conditions on the premises." 



Leslie filed a motion for summary judgment on Heynen's                  negligence per se claim.  In 



January 2008, Superior Court Judge Philip M. Pallenberg issued an order granting both 



parties' motions, though he made "no determination about whether Defendants' statutory 



duties extended to the staircase at issue in this litigation," which he noted would depend 



on whether or not the staircase was considered part of the rental premises or a "common 



area." 



        1       AS 34.03.100 imposes a duty on landlords to "maintain fit premises." 



                                                   -3-                                               6748 


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

                During discovery, Heynen filed a request for admissions in which she asked 



Leslie and Julene to "admit there are no genuine issues of fact to support your third 



Affirmative Defense that Plaintiff Elizabeth Heynen's 'injuries, if any[,] were caused by 



and/or contributed [to] by her own negligence.' "            Leslie and Julene declined to make 



this admission, stating that there were "genuine issues of fact as to how the accident 



occurred," that discovery was ongoing, and that the defendants "anticipate[d] being able 



to   further  respond    to  this  request   after   plaintiff's   discovery  deposition."    Heynen 



subsequently filed a request for supplementation from Julene, asking her to "provide any 



information which she intend[ed] to present at trial" regarding the affirmative defenses. 



Julene did not respond to this request.        Heynen did not file a motion to compel. 



                In October 2008, Heynen filed a motion for partial summary judgment on 



Leslie's   and   Julene's   affirmative   defenses   of   comparative   negligence   and   failure   to 



mitigate.  The superior court denied the motion as to comparative negligence.  The court 



noted   that   Heynen's   motion   for   summary   judgment   relied   on   the   argument   that   the 



defendants      had  not   disclosed   facts  supporting    their  affirmative    defenses,   and   that 



although this failure to disclose could merit discovery sanctions, it did not provide a basis 



for granting summary judgment. 



                In March 2009, Heynen filed a motion for discovery sanctions based on 



Leslie's and Julene's "failure to provide a factual basis [for,] or to respond to[,] repeated 



discovery requests as to their affirmative defense of comparative negligence."                    As a 



sanction for these alleged discovery violations, Heynen requested that the superior court 



preclude Leslie and Julene from asserting the comparative negligence defense at trial. 



The superior court denied this motion, explaining that "sanctions . . . only come into play 



if there is an order compelling discovery which is violated" and noting that Heynen did 



not "point to any fact, or any document, that defendants have not produced."                  But the 



court   invited   Heynen   to   move   to   compel   disclosures   if   she   felt   that   "defendant's 



                                                  -4-                                            6748
 


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

disclosures   [were]   inadequate,"   and   noted   that   if   "defendants   attempt   to   introduce 



evidence at trial which was not [previously] disclosed, [Heynen] may object under Rule 

37(c)(1)."2 



                 Before trial, Heynen filed a series of motions in limine.             Motion in limine 



No. 2, filed in September 2009, requested a court order prohibiting the defendants from 



raising   any   new   factual defenses to Heynen's claim that her fall was caused by the 



defendants' failure to inspect, repair, and maintain the stairway.   Motion in limine No. 4 



requested an order prohibiting the defendants from presenting any facts not previously 



disclosed in support of their comparative negligence defense. 



                 On November 5, 2009, the superior court issued an order on Heynen's 



motions in limine Nos. 2 through 6.            The court granted three of Heynen's motions, but 



denied motions No. 2 and No. 4. 



                 Heynen      also   filed   motion   in   limine   No.   8,   which   requested   an   order 



prohibiting defendants' counsel from "miscommunicating the differing duties at issue" 



-  specifically, the duties of landlords under the Uniform Residential Landlord and 



Tenant Act and the lesser duty of care imposed on tenants. The superior court denied the 



motion in an order that stated:          "The parties are free to make arguments that note the 



similarities and the differences between their respective duties, as long as they do not 



        2        Alaska Civil Rule 37(c)(1) provides, in relevant part: 



                 A party that without substantial justification fails to disclose 

                 information   required   by   Rules   26(a),   26(e)(1),   or   26.1(b) 

                 shall not, unless such failure is harmless, be permitted to use 

                 as evidence at a trial, at a hearing, or on a motion any witness 

                 or information not so disclosed.          In addition to or in lieu of 

                 this   sanction,   the   court,   on   motion   and   after   affording   an 

                 opportunity      to  be   heard,   may    impose     other   appropriate 

                 sanctions. . . . 



                                                    -5-                                               6748
 


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

 misstate the law." The court also noted that the parties' "duties are different, and counsel 



 should not argue that they are the same." 



         B.      Trial And Decision 

                A jury trial was held in November 2009, with Julene as the sole defendant.3 



The jury heard testimony from a number of witnesses, including a construction expert, 



Julene, three of Heynen's children, a biomechanics expert, an economist, an orthopedic 



surgeon, and Heynen.   Julene also introduced the deposition testimony of Kurt Kosters, 



the contractor who built the staircase.   Kosters' testimony was introduced by deposition 



because he died before trial. Prior to the admission of Kosters' testimony, Heynen moved 



for a directed verdict on Kosters' liability for Heynen's injuries, arguing that there was 



"no way a reasonable juror could conclude . . . that Mr. Kosters was negligent."  The 



superior court denied the motion but told Heynen's attorney he could "renew [it] in the 



form     of  a  judgment    notwithstanding      the   verdict."    After   Kosters'    testimony     was 



introduced, Heynen's attorney renewed the motion as a motion for a directed verdict and 



the court again denied it.        Heynen's attorney also moved for a directed verdict on the 



comparative negligence defense; he argued that "there's been no evidence . . . that Ms. 



Heynen was . . . negligent in her descent of the staircase" and "the jury shouldn't be asked 



to guess what might have happened."            The superior court denied this motion as well. 



         3        Immediately before the beginning of trial, Heynen reached a settlement 



 with Leslie, which "resolve[d] in full all claims against him . . . ."  But at the conclusion 

 of the trial, when counsel met with the court to discuss the special verdict form and jury 

 instructions, Heynen's attorney stated that Leslie was a defendant and had not been 

 dismissed,   arguing   that   "you   can   settle   and   not   be   dismissed." The   superior   court 

 allowed Leslie to be included as a defendant on the verdict form submitted to the jury. 

 The jury found Leslie not liable.   Leslie is not a party to this appeal, and neither Heynen 

 nor Julene argues that he should be. 



                                                   -6-                                             6748
 


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

                The jury found no negligence as to any of the parties listed on the special 



verdict form: Julene and Leslie Fairbanks, Kosters, and Heynen.   Heynen did not file a 



motion for judgment notwithstanding the verdict. On March 17, 2010, the superior court 



entered a final judgment in favor of Julene and awarded her approximately $7,700 in 



Civil Rule 79 costs and approximately $9,770 in Civil Rule 82 attorney's fees.  Heynen 



appeals. 



III.    STANDARD OF REVIEW 



                When considering a claim that evidence offered at trial was insufficient to 



support a jury verdict, we review the record to determine whether "the verdict is contrary 

to the clear weight of the evidence."4       "In so doing, we are required to take the evidence 



and all inferences reasonably deducible [from the evidence] in the light most favorable 

to the appellee."5     The goal of this inquiry is to ascertain whether "there has been a 



miscarriage of justice."6 



                Our "role in reviewing a grant of a motion for a directed verdict or JNOV 



is not to weigh conflicting evidence or judge the credibility of witnesses, but rather to 



determine   whether   [the]   evidence,   when   viewed   in   light   most   favorable   to   the   non- 

moving party, is such that reasonable persons could not differ in their judgment."7 We 



have held that "[t]he test is objective; and, if there is room for diversity of opinion among 

reasonable people, the question is one for the jury."8 



        4       Bolden v. City of Kodiak , 439 P.2d 796, 801 (Alaska 1968).
 



        5       Jakoski v. Holland , 520 P.2d 569, 575 (Alaska 1974).
 



        6
      Bolden , 439 P.2d at 801. 



        7       Korean Air Lines Co. v. State , 779 P.2d 333, 338 (Alaska 1989). 



        8       Dura Corp. v. Harned , 703 P.2d 396, 402 (Alaska 1985) (citing City of 



                                                                                       (continued...) 



                                                  -7-                                            6748
 


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

                We review a trial court's rulings on a motion in limine according to the 



underlying relief sought in the motion.         Here, the types of relief sought in the motions 



in limine - preclusion of evidence and a ruling on trial management - call for abuse 

of discretion review.9 



IV.     DISCUSSION 



        A.      The Jury's Verdict Was Not Contrary To The Evidence. 



                Heynen argues that the evidence of Julene's negligence "was so strong that 



reasonable persons could not differ in judgment," and requests that the final judgment 



be vacated.   Julene responds that Heynen "failed to make a motion for a directed verdict 



or any post-trial motion" on the issue of Julene's negligence and is therefore precluded 



from arguing that the verdict should be set aside on appeal.              In the alternative, Julene 



argues that the question of negligence was properly submitted to the jury and that the 



finding was supported by the evidence. 



                1.      Heynen has not waived the right to appeal the jury's verdict. 



                Heynen   contends   that   the   jury's   verdict   was   contrary   to   the   evidence. 



Heynen did not move for a directed verdict at trial on the issue of Julene's negligence, 



        8       (...continued) 



Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 1978)); see also 

Cameron v. Chang-Craft, 251 P.3d 1008, 1017-18 (Alaska 2011) (noting that "[b]ecause 

conflicting evidence is not to be weighed and witness credibility is not to be judged on 

appeal, generally the only evidence that should be considered is the evidence favorable 

to the non-moving party - if that evidence is insufficient to allow a reasonable juror to 

find for the non-moving party, the trial court should grant a directed verdict or JNOV 

motion.") (internal citations omitted). 



        9       See State v. Doyle, 735 P.2d 733, 739-40 (Alaska 1987) (reviewing denial 



of motion in limine seeking to limit evidence to that previously disclosed in discovery 

for   abuse   of   discretion); Booth   v.   State ,   251   P.3d   369,   372-73   (Alaska   App.   2011) 

(applying abuse of discretion standard where law "does not specify a particular 'right' 

answer or response to the situation"). 



                                                  -8-                                            6748
 


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

nor   did   she   move   for   judgment   notwithstanding   the   verdict.   Julene   argues   that   "to 



challenge a verdict as being inconsistent, a party must raise the issue before the jury is 



discharged," and claims that Heynen is precluded from raising this argument on appeal. 

Julene relies on Roderer v. Dash 10 to assert that Heynen is precluded from arguing that 



the jury's verdict was contrary to the evidence.  It is true that in Roderer we declined to 



review the superior court's denial of judgment notwithstanding the verdict because the 

appellant had not previously raised the same issue in a motion for a directed verdict.11 



But  Roderer  is   distinguishable   from   the   instant   case:   Here,   Heynen   did   not   seek   a 



judgment notwithstanding the verdict, nor did she move for a directed verdict.  This case 



is governed by those cases in which we reviewed the sufficiency of evidence underlying 



a verdict absent a motion for directed verdict and a motion for judgment notwithstanding 

the verdict.    In Bolden v. City of Kodiak ,12 for example, we reviewed the record "to 



ascertain whether the evidence was [l]egally sufficient to support the verdict despite 

appellant's failure to make a motion for directed verdict or for judgement n.o.v."13                  At 



oral argument, Julene conceded that Bolden applies; she did not ask that we reconsider 



or overrule it. 



                2.       The jury's verdict was not contrary to the evidence. 



                We have stated that questions of negligence should generally be resolved 



by the jury rather than foreclosed by the trial court through summary judgment or other 



        10      233 P.3d 1101, 1106 (Alaska 2010). 



        11      Id. at 1108. 



        12      439 P.2d 796 (Alaska 1968). 



        13      Id. at 801.  See also Jakoski v. Holland, 520 P.2d 569, 575 (Alaska 1974) 



(reviewing the record "to ascertain whether the evidence was legally sufficient to support 

the verdict"). 



                                                   -9-                                             6748
 


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

means.14    "If reasonable minds could draw different inferences . . . from the facts the 



issue must be reserved for trial."15    In considering the sufficiency of evidence supporting 



a jury verdict on appeal, we inquire whether "the verdict is contrary to the clear weight 

of the evidence" to determine if "a miscarriage of justice" has occurred.16          In this inquiry, 



we draw all reasonable inferences "in the light most favorable to the appellee."17 



                Heynen argues that the evidence presented at trial "was such that reasonable 



persons could not differ in their judgment."   Heynen claims "uncontroverted evidence" 



established that Julene breached her duty to "inspect, maintain, and repair" the stairs; and 



that Julene's breach caused Heynen's injuries.   Specifically, Heynen points to evidence 



that Julene did not actively inspect, repair, or maintain the staircase, and cites expert 



testimony indicating that the step broke as a result of moisture and rot.   Heynen further 



argues that a connection between her fall, her injuries, and her resulting disabilities was 



conclusively established at trial.     Julene disputes each of these points. 



                First, while admitting that she had not physically tested the wood in the 



stairs to see whether it was punky or would give way under a knife, Julene noted that she 



"ha[d] been up and down the staircase" and the staircase "fe[lt] solid." 



                Second, as to the condition of the steps, Julene adduced evidence disputing 



Heynen's claim that the break was due to negligence on Julene's part.  The steps at issue 



        14      See, e.g., Maddox v. River & Sea Marine, Inc. , 925 P.2d 1033, 1035-36 



(Alaska 1996) (attributing this rule to the "elusive nature of the concept of negligence, 

the determination of the existence of which requires the forming of a judgment as to the 

reasonableness of the conduct of the parties in light of all the circumstances of the case") 

(quoting Webb v. City & Borough of Sitka, 561 P.2d 731, 735 (Alaska 1977)). 



        15      Id. 



        16      Bolden, 439 P.2d at 801. 



        17      Jakoski , 520 P.2d at 575. 



                                                 -10-                                           6748
 


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

were constructed of untreated wood and were exposed to the elements (i.e., uncovered). 



Heynen's expert, Marquam George, testified that the step likely broke due to the wood's 



moisture   content   and   the   placement   of   a   knot   in   the   pattern   of   the   wood. George 



performed a moisture reading on a sample of wood from the stair that broke, and he 



testified that it was in "the danger zone."         He explained that the danger zone "begins at 



28 percent moisture content" and that decay starts at this point.  Julene's attorney cross- 



examined George on the relevance of the moisture reading, since the tread was stored 



outside (in the rain) after it was removed from the staircase; George's response conceded 

that it was possible that the moisture reading was affected by this storage method.18 



George also testified that the step had "failed along a natural defect within that board, 



being the knot."     When asked why the wood fractured, he responded: 



                 Well, it appeared to me a large part of that fracture could be 

                because there was a large knot right on the leading edge of 

                 the   stair.   When   we   look   at   knots   in   wood,   that's   a   very 

                unpredictable element within a piece of wood, that you really 

                 don't know how it's going to be affected . . . . 



George also testified that wood that is exposed to the elements has a useful service life 

in   Southeast   Alaska   of   between   10   and   20   years.19   The   step   in   question   had   been 



installed 14 years earlier. 



                 Julene disputed that the step was rotten, and offered testimony in support 



of this position.   Kenneth Graham, Julene's partner, removed the broken step the day of 



        18       George was equivocal: When asked whether it made a difference that wood 



was stored outside on the ground, in the rain, before the moisture reading was taken, he 

responded, "Perhaps, but perhaps not." 



        19       At another point, George stated that untreated wood has a service life of 10 



to 30 years, depending on its location in the United States. 



                                                   -11-                                              6748
 


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

the accident.20     He testified that the step was difficult to remove because it was "really 



solid   wood,"   not   soft   at   all.21 The   jury   asked   additional   questions   of   Graham.         In 



response to these questions, Graham denied that the step was rotten:                      "[N]o. . . when I 



took the step out there weren't any rotten sections that I had to remove."                       He further 



testified   that   there   might   have   been   some   discoloration,   but   that   the   step   "wasn't 



waterlogged." 



                 In light of all of this evidence, the jury could have concluded that a visual 



inspection of wooden stairs that "fe[lt] solid" was reasonable under the circumstances. 



The     jury  may    have    subscribed     to  the   argument   that   Julene      made    at   closing,  and 



concluded that the flaw in the wood was a latent, natural flaw - not caused by rot - 



and   therefore   difficult   or   impossible   to   discover   under   the   circumstances.        Julene's 



counsel made this argument at closing: 



                          Professor George . . . testified that the - the 

                          tread   broke   at   the   -   at   the   knot,   the   natural 

                          grain.    He did not say that had anyone pushed 

                          or   tested   or   put   a   key   in   it   or   screwdriver   or 

                          tested it, it would have shown, before this fall, 

                          that it should have been replaced. 

                                  . . . . 

                          [George] personally examined it.             He did not 

                          testify that it was soft, that it was punky, that it 

                          was rotten.    No, not at all. 



In other words, even if Julene had been the most vigilant of landlords, if the step broke 



along a knot in the wood (which was characterized by Heynen's construction expert as 



a "very unpredictable element" of wood), this is not the type of harm that she could 



         20      Graham  replaced two steps that day, since one other step appeared to have 



a crack in it. 



         21      Graham was unable to remove the step with a nail-puller and a 22-ounce 



framing hammer, and instead had to use a two-pound sledge hammer and a crowbar. 



                                                     -12-                                                  6748 


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

reasonably have been expected to find.  Under this view, reasonable jurors could have 



differed over whether Julene was negligent.              Under these circumstances, we conclude 



that the jury's verdict was not contrary to the evidence. 



        B.	      The    Superior      Court    Did    Not   Abuse     Its  Discretion      In  Resolving 

                 Heynen's Motions In Limine. 



                 Heynen   argues   that   the   superior   court   erred   in   denying   her   motions   in 



limine No. 2 and No. 4, concerning the completeness of discovery, and No. 8, concerning 



the appropriateness of legal arguments to be made to the jury. 



                 1.	     The     superior     court   did   not   abuse    its  discretion    in denying 

                         motions in limine No. 2 and No. 4. 



                 In motion in limine No. 2, Heynen requested an order precluding Julene 



"from raising any factual defenses not previously disclosed to Plaintiff's claim that her 



fall   was   caused   by   Defendants'   failure   to   inspect,   repair   and   maintain   the   subject 



stairway."    In motion in limine No. 4, Heynen similarly requested an order precluding 



Julene from raising "new facts in support" of her comparative negligence defense for the 



first time at trial.  In denying the two motions, the superior court wrote: 



                 The   court   expects   parties   to   comply   with   the   court   rules, 

                 including     the   rules   requiring    discovery     and   disclosure. 

                 [Heynen] has not made a showing that [Julene] failed to do 

                 so.   The   court   will   not  grant   motions   premised   upon   the 

                 assumption that there has been a violation without a specific 

                 showing. . . .    If the evidence at trial does not support any 

                 defense, [Heynen] may move for a directed verdict on that 

                 issue. 



                 The superior court did not abuse its discretion in declining to issue an order 



precluding Julene from presenting undefined evidence at trial; nor does Heynen point to 



any evidence that was introduced without having been properly disclosed in advance. 



As the court noted, Heynen's motions in limine No. 2 and No. 4 argued that Julene made 



inadequate   disclosure   during   the   discovery   phase   of   the   case.     Heynen   also   alleged 



                                                   -13-	                                             6748
 


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

inadequate disclosure in a request for supplementation and in a motion for discovery 

sanctions.22    But Heynen never moved to compel Julene to produce specific evidence, 



nor did she ever object that Julene introduced previously undisclosed evidence at trial. 



To support her comparative negligence theory, Julene relied on testimony elicited from 



Heynen on cross-examination.           The superior court's denial of motions in limine No. 2 



and No. 4 was consistent with Alaska law and did not constitute an abuse of discretion. 



                2.	     The   superior   court   did   not   abuse   its   discretion   in resolving 

                        motion in limine No. 8. 



                In motion in limine No. 8, Heynen requested that the superior court "issue 



an Order prohibiting counsel for [Julene] from miscommunicating the differing duties 



at issue in this matter."    Heynen argued that Julene planned to conflate her affirmative 



duty of care as a landlord with Heynen's duty of ordinary care as a tenant, and that "to 



allow   such   arguments   [would]   unduly   prejudice   the   Plaintiff   and   confuse   the   jury." 



Ruling on this motion, the superior court wrote: "The parties are free to make arguments 



that note the similarities and differences between their respective duties, as long as they 



do not misstate the law. Their duties are different, and counsel should not argue that they 



are the same." 



                Heynen argues that this order "invited [Julene] to confuse the distinction 



between the duty of a landlord as opposed to a tenant"; but she does not identify any 

objection to such an argument at trial.23        Further, nothing in the superior court's order 



        22      Heynen's motion for discovery sanctions was essentially the same motion 



as her motions in limine; as sanctions, she sought an order precluding Julene from raising 

the comparative negligence defense at trial. 



        23      In his closing argument, Julene's attorney may have confused the duties of 



care; he argued that "Ms. Julene Fairbanks was also a residential tenant of her father." 

But   the   court   did   not   allow  this   argument,   admonishing     counsel   that   it   was   "not 

                                                                                        (continued...) 



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"invited" Julene's counsel to confuse the two duties.  The superior court did permit the 



parties to discuss and compare the legal standards governing the duties of care owed by 



landlords and tenants, but such discussions of the law are an important component of an 



advocate's   presentation   of   a   case   to   the   jury;   indeed,   Heynen's   counsel   discussed 



landlord duty in depth during his closing argument. The superior court's order expressly 



prohibited the parties from misstating the law or arguing that Heynen's and Julene's 

duties were the same.24      We discern no abuse of discretion in this ruling. 



        C.	     The Superior Court Did Not Err In Denying Heynen's Motion For 

                Directed Verdict On The Issue Of Her Comparative Negligence. 



                Heynen contends that "there was no evidence presented to create a question 



for the jury on whether [she] was comparatively negligent" and that the superior court 



erred in allowing this theory to be considered by the jury.             We note first that the jury 



found no negligence on Heynen's part; accordingly, any error would have been harmless 



because Heynen was not prejudiced by the superior court's action. 



                But    because    Heynen     argues   that  the   mere   giving   of   a  comparative 



negligence instruction was confusing to the jury, we also address this issue on the merits. 



We conclude that the superior court did not err in its instructions on this matter.              After 



the   close   of  evidence,   Heynen     moved     for  a  directed   verdict   on  the  issue  of  her 



comparative negligence. The superior court denied this motion ruling that the jury could 



draw "[a] reasonable inference . . . that a substantial factor in [Heynen's] fall was the fact 



that she stepped so close to the edge of the step."         The jury found that Heynen was not 



        23      (...continued) 



accurate." 



        24      Thus, it is not clear to us that the superior court denied Heynen's motion 



at   all. Heynen essentially sought the order provided by the court: the preclusion   of 

misleading conflation of the different duties of care at issue. 



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comparatively negligent, but it also found that the other parties listed on the verdict form 



were not negligent.         On appeal, Heynen challenges the superior court's denial of her 



motion for a directed verdict, arguing that the comparative negligence defense "confused 

the jury so that the resulting verdict was contrary to the evidence presented."25 



                 We   will   not   reverse   a   superior   court's   denial   of   a   motion   for   directed 



verdict unless the "evidence . . . is such that reasonable persons could not differ in their 

judgment." 26    In rejecting Heynen's argument that the jury's verdict was contrary to the 



evidence, we determined that reasonable jurors could have found Heynen's own actions 



contributed      to  or  caused    her   fall.  The   evidence    supporting      the  jury's   verdict   - 



specifically, evidence that Heynen was holding her dog's leash with her dominant hand, 



that she does not remember looking at the stairs, and that she may have stepped very 



close to the leading edge of the step - created a question of fact for the jury concerning 



whether Heynen was comparatively negligent. When viewed in the light most favorable 

to the nonmoving party,27 the evidence was such that a reasonable juror could have found 



that Heynen was comparatively negligent. 



                 We are not persuaded by Heynen's argument that the jury was somehow 



confused by the existence of Julene's comparative negligence defense.   We trust jurors 



to   consider     properly    presented     claims    and   defenses    within    the  contours     of  jury 



instructions.     Heynen's   argument   seems   to   imply   that   because   the   jury   did   not   find 



         25      Heynen frames the issue on appeal as:   "Whether the Superior Court erred 



in allowing [Julene] to argue to the jury that [Heynen] was comparatively negligent." 

Heynen   argues   that   the   question   of   comparative   negligence   should   not   have   been 

submitted to the jury, which is essentially an appeal of the superior court's denial of her 

motion for a directed verdict. 



         26      Korean Air Lines Co. v. State , 779 P.2d 333, 338 (Alaska 1989). 



         27      Id. 



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negligence   on   the   part   of   any   of   the   parties,   it   must   have   been   confused.  But   the 



existence of negligence is not a necessary precondition to the occurrence of a personal 



injury. The superior court did not err by denying Heynen's motion for directed verdict 



on the issue of comparative negligence. 



        D.	     The Superior Court Did Not Err In Denying Heynen's Motion For 

                Directed Verdict On Kosters' Liability. 



                Heynen argues that the inclusion of Kurt Kosters on the special verdict 



form as an individual to whom fault could be allocated "was improper and confusing 



because   Mr.   Kosters   was   an   employee   and   agent   of   Mr.   Fairbanks   and       thus   any 



allocation of fault was imputable to Mr. Fairbanks, who was dismissed from the action 



by stipulation of the parties."        She also contends that "the allocation of fault to Mr. 



Kosters was meritless as Mr. Kosters was deceased at the time of trial and had no estate." 



As with the previous issue concerning Heynen's argument on comparative negligence, 



the jury found no negligence on the part of Kurt Kosters.  Again, we conclude that any 



error would therefore be harmless.          But because Heynen argues that the giving of this 



instruction confused the jury, we consider the matter on the merits. We conclude that the 



superior court did not err in instructing the jury. 



                Heynen moved for a directed verdict on this issue at trial, claiming that 



there    was   "no   way   a  reasonable    juror   could   conclude    .   .   .   that   Mr.   Kosters  was 



negligent."    Heynen also argued that it was improper to allocate fault to an employee 



who merely "did what was on the plans." 



                The superior court denied the motion for directed verdict, ruling: 



                I   will  allow    this  to  go  to  the   jury  .  .  .  . It's  not  an 

                extraordinarily   technical   subject.   There   is   some   testimony 

                about the way the treated and untreated wood hold up in the 

                environment . . . from Mr. George. There's testimony about 

                Mr. Kosters, as to the consequences of that choice. . . .           And 



                                                  -17-	                                            6748
 


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                 so I will allow the jury to allocate fault on that issue at this 

                 point. 



The superior court also rejected Heynen's argument that allowing the jury to consider 



allocating fault to  Kosters was improper because it "allocated fault in another direction 



to [Leslie Fairbanks]," who was no longer a party.  The court noted that "the legal issue 



under the doctrine of respondeat superior . . . is an entirely different question," and 



concluded   that   "[e]mployees   don't   have   immunity   from   liability."          At   the   close   of 



evidence, Heynen renewed the motion for directed verdict; the court again denied it.  The 



jury found that Kosters was not negligent. 



                 It was not error to deny the motion for directed verdict because reasonable 



jurors could have concluded that Kosters was, or was not, negligent. The jury heard 



testimony suggesting that Kosters may have been negligent in failing to use treated wood 



on the exterior stairs where Heynen fell.  Kosters testified, in a deposition transcript read 



to the jury, that he decided what type of wood would be used to build the stairs and that 

there   was   never   any   discussion   about   possibly   waterproofing   the   wood.28          One   of 



Heynen's experts testified that the stairs were constructed using untreated wood, and that 



the   use   of   treated   wood   would   have   better   protected   the   stairs   from   the   elements. 



Kenneth Graham (Julene's domestic partner) also testified that untreated wood may rot 



and fail if exposed to the elements.   On the basis of this evidence reasonable jurors could 



have     found    that  Kosters    bore   some    responsibility    for   the  condition    of  the   stairs. 



Alternatively, reasonable jurors could have concluded, as Heynen argued, that Kosters 



was not negligent.       The superior court did not err in denying Heynen's motion for a 



directed verdict on the issue. 



         28      Kosters gave conflicting testimony about his level of responsibility for 



making substantive decisions about the construction of the stairs, but he unambiguously 

indicated that he chose what type of wood to use. 



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                 Heynen's other arguments challenging the propriety of allowing the jury 



to consider allocating fault to Kosters are unpersuasive.   As the superior court properly 



noted, there was no reason that Leslie's role in the trial and his relationship to Kosters 



should have prevented the jury from considering whether Kosters negligently caused the 



accident.  Though Heynen reached a settlement with Leslie, fault could still be allocated 

or imputed to Leslie under AS 09.17.080 29   as a party to the suit.30               We see no merit to 



the argument that Heynen was prejudiced by the inclusion of Kosters on the special 



verdict   form.    No   fault   was   allocated   to   Kosters   -   which   was   the   result   Heynen 



advocated for - and there is no indication that including his name on the special verdict 



form   confused   the   jurors. The   superior   court did   not err   in   denying   the   motion   for 



directed verdict that sought a ruling that Kosters was not negligent. 



        29       "In all actions involving fault of more than one person, including third- 



party defendants and persons who have settled or otherwise been released, the court . . . 

shall instruct the jury to answer special interrogatories . . . indicating . . . the percentage 

of   the   total   fault   that   is   allocated   to   each   [person]." AS   09.17.080(a)(2)   (emphasis 

added). 



        30       Additionally, an allocation of fault to Kosters would not necessarily be 



imputed to Leslie; the court never ruled that Kosters was Leslie's employee.                      Kosters 

could have been an independent contractor, in which case the doctrine of respondeat 

superior would not have applied. See, e.g., Parker Drilling Co. v. O'Neill , 674 P.2d 770, 

775   (Alaska   1983)   (noting   that   employers   are   ordinarily   not   liable   for   the   torts   of 

independent contractors). 



                 It is also irrelevant that Kosters was deceased and had no estate.  Kosters' 

estate was not exempt from liability, and there is no rule stating that judgment-proof 

individuals cannot be tort defendants. 



                                                   -19-                                              6748
 


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        E.     Heynen's Argument Concerning Admission Of Her Medical Records 

               Is Moot. 



               Heynen argues that the superior court abused its discretion in admitting her 



medical   records   from   the   1980s   and   1990s,   when   she   was   involved   in   multiple   car 



accidents.  This evidence might have been relevant in the jury's assessment of causation 



or damages had it found that Julene was negligent.         Because it returned a verdict of no 



negligence, however, this point is moot.       We therefore decline to reach it. 



V.      CONCLUSION 



               We AFFIRM the decisions of the superior court. 



                                               -20-                                          6748
 

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